Extension of working time Directive agreed

On 3 April 2000 the European Parliament/Council conciliation committee agreed a compromise text of the EU Directive designed to extend the 1993 working time Directive to excluded sectors and activities. This was agreed under the co-decision procedure provided for under Article 251 of the Treaty, whereby in the event of disagreement between the Council and Parliament, a conciliation committee attempts to negotiate a compromise text.

May 2000 saw the approval of a Directive extending the 1993 working time Directive to previously excluded sectors and activities.

Context

Directive (93/104/EC) on certain aspects of the organisation of working time, adopted on 23 November 1993, contains a considerable number of exclusions and derogations relating to specific sectors and activities. These are:

• air, rail, road, sea, inland waterway and lake transport;

• sea fishing;

• other work at sea; and

• the activities of doctors in training.

At the time of the Directive's drafting, the rationale behind these exclusions was the fact that (apart from doctors in training) key workers in these sectors are typically required to spend time away from home.

However, in many sectors, and particularly in transport and sea fishing, these exclusions have since been interpreted as applying to all workers, including those involved in sedentary duties. The European Commission therefore decided that this situation should be clarified, noting that there was no objective reason why non-mobile employees should be treated differently than employees carrying out similar tasks in other industries.

The Commission therefore issued, on 15 July 1997, a White Paper on sectors and activities excluded from the working time Directive (COM(97) 334 final) for consultation amongst the social partners, in which it set out the possible options for dealing with the excluded sectors (EU9707138N). The Commission's preference was for regulation by social partner agreements, although it conceded that Community legislation was also an option.

Social partner negotiations at European level succeeded in concluding agreements regulating the organisation of working time in the maritime sector (EU9802182F) and the rail sector, both formally signed on 30 September 1998.

A second consultation paper was issued by the Commission in March 1998 (EU9804102N) in which, in the absence of further arrangements concluded between the social partners, the Commission committed itself to issuing legislative proposals to cover excluded sectors for which no collectively-agreed arrangements had been negotiated. The Commission subsequently, in November 1998 (EU9901144F), issued a package of four proposed Directives, designed to extend some or all of the protection afforded by the 1993 Directive to the excluded sectors and activities:

• a "horizontal" Directive, extending protection to non-mobile workers in excluded sectors and to doctors in training, in addition to providing basic protection for mobile workers in road, air and inland waterway transport and sea fishing;

• a Directive covering mobile workers in the road transport sector and self-employed drivers;

• a Directive implementing the social partners' agreement on working time in the maritime industry (see above); and

• a proposal for a Directive concerning seafarers' hours of work on board ships using Community ports.

Adoption of the Directive (1999/63/EC) implementing the maritime sector social partner agreement was achieved on 21 June 1999 (EU9906178F) and the Directive (1999/95/EC) concerning the enforcement of provisions in respect of seafarers' hours of work on board ships calling at Community ports was adopted on 13 December 1999.

The proposed road transport industry Directive has made no progress in the Council of Ministers for some time, with disagreement centring on the inclusion of self-employed drivers in the scope of the Directive (EU9910203F). However, work is continuing on this proposal.

Regarding the horizontal proposal, the draft reached the European Parliament (EP) second reading stage in November 1999, at which the EP made a number of amendments to the text. The Council subsequently did not accept all of these amendments and, as this proposal is subject to the co-decision procedure under Article 251 of the Treaty establishing the European Community (TEC), a conciliation committee was subsequently convened to try and broker an agreement.

At the second sitting of this committee, on 3 April 2000, a joint text was agreed (EU0004240N), which was issued on 4 April 2000. The text was approved by the EP on 17 May 2000 and by the Council on 19 May 2000.

Main points of the new text

New definitions

The new agreed text of the Directive amending Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time to cover sectors and activities excluded from that Directive contains new definitions of mobile workers and offshore work and of what constitutes adequate rest:

• a "mobile worker" is defined as any worker employed as a member of travelling or flying personnel by an undertaking which operates transport services for passengers or goods by road, air or inland waterway;

• "offshore work" is defined as work performed mainly on or from offshore installations (including drilling rigs), directly or indirectly in connection with the exploration, extraction or exploitation of mineral resources, including hydrocarbons, and diving in connection with such activities, carried out either from an offshore installation or a vessel; and

• "adequate rest" is defined as meaning that workers should have regular rest periods expressed in units of time, which are long and continuous enough to ensure that the workers do not, as a result of fatigue or other irregular working patterns, cause injury to themselves or other workers, and that they do not damage their health, either in the short term or in the longer term.

Exemption from daily rest, rest breaks, weekly rest, night work and reference periods for working hours

Workers engaged in offshore work (where the place of residence and place of work are distant from one another), doctors in training, workers concerned with the carriage of passengers on regular urban transport services and certain railway transport workers may be exempted by Member States from provisions regarding daily rest, rest breaks, weekly rest, length of night work and reference periods.

This means that these workers may be exempted from the abovementioned provisions of the Directive. However, they are bound by all other provisions of the Directive, including: annual leave; all other provisions relating to night work – such as health assessment and transfer of night workers to day work, guarantees for night-time working and notification of regular use of night workers; general health and safety protection; provisions governing the pattern of work; and provisions governing maximum weekly working time.

Working time for doctors in training

Average weekly working time limits of 48 hours are set for doctors in training, which may be introduced over a five-year transition period. During the first three years of this transition period, average weekly working time will be 58 hours, falling to 56 hours during the following two years.

Member States may have an additional period of up to two more years, if necessary, "to take account of difficulties in meeting the working time provisions with respect to their responsibilities for the organisation and delivery of health services and medical care." At least six months before the end of the five-year transitional period set out above, a Member State should inform the Commission of its wish for further time, giving its reasons. The Commission will then give an opinion "after appropriate consultations" within three months. If the Member State concerned does not follow the opinion of the Commission, it must give its reasons for not doing so. During this extra transition time, average weekly working time must not exceed 52 hours.

The implementation period for these provisions is four years. This means that the total transition period to a 48-hour average working week for doctors in training will be nine years (four-year implementation period plus a five-year transition period), rising to 12 years if the two-year and further one-year extensions are made use of.

Weekly working time may be averaged out over a reference period of 12 months during the transition period and subsequently over six months.

Mobile workers and offshore workers

Mobile workers are not covered by the Directive's provisions on daily rest, rest breaks, weekly rest and length of night work. However, Member States must ensure that these mobile workers are entitled to adequate rest, except in case of accident or imminent risk of accident or in unforeseeable circumstances and exceptional events.

With regard to workers who mainly perform offshore work, Member States may, for objective or technical reasons or reasons concerning the organisation of work, extend to 12 months the four-month reference period of the Directive in relation to the maximum working week, as long as general health and safety principles are complied with and provided that there is consultation of the relevant employer and employee representatives and efforts are made to encourage all relevant forms of social dialogue "including negotiation if the parties so wish".

Workers on board sea-going fishing vessels

Workers on board sea-going fishing vessels are not covered by the Directive's provisions on daily rest, rest breaks, weekly rest, maximum weekly working time and length of night work.

However, Member States must take the necessary measures to ensure that these workers are entitled to "adequate rest" and that their working time is limited to an average of 48 hours a week calculated over a period not exceeding 12 months.

In order to achieve this, Member States must chose one of two options:

• limiting working time to a maximum number of hours in a given period. This must not exceed 14 hours in any 24-hour period and 72 hours in any seven-day period; or

• providing a minimum number of hours of rest within a given period of time. These must be not less than 10 hours in any 24-hour period and 77 hours in any seven-day period. This rest may be divided into no more than two periods, one of which must be at least six hours. Further, the interval between consecutive periods of rest must not exceed 14 hours.

However, Member States may, for objective or technical reasons or reasons concerning the organisation of work, and as long as general health and safety principles are adhered to, allow exceptions, including the establishment of reference periods, to the 48-hour week over a 12-month period, the limits on hours of work and rest breaks.

Sunday working

The provision that the weekly rest day should in principle be a Sunday is deleted. This is the response to the European Court of Justice (ECJ) judgment issued on 12 November 1996, in which the ECJ ruled against the UK's challenge to the legal base of the 1993 Directive, but stated that the Council of Ministers had failed to explain why Sunday, as a weekly rest day, was more closely connected with the health and safety of workers than any other day of the week.

Transposition and review

The transposition period for this Directive is three years following its adoption, with the exception of the provisions regulating working time for doctors in training, for which there is an implementation period of four years.

Provisions governing offshore workers and workers concerned with the carriage of passengers on regular urban transport services will be reviewed by the Commission after five years. The provisions relating to work on board sea-going fishing vessels will be reviewed after nine years.

Commentary

The joint text agreed by the conciliation committee marks a major step forward in terms of both the use of procedures and the content of the text. This is the first major social policy item to be resolved by a conciliation committee and as such proves that this procedure can be effective in solving what is generally held to have been a particularly difficult issue on which to gain agreement.

In terms of content, a significant number of sectors and activities will now be brought under the the full or partial scope of the 1993 Directive. In the case of non-mobile workers in excluded sectors in particular, this move will be seen as correcting an oversight contained in the original Directive.

The most controversial issue during the whole debate over this extension Directive was that of working time for doctors in training, which was the main issue on which the Council and the EP had failed to agree. It is a considerable achievement that the new text will now eventually limit the working week for doctors in training to an average of 48 hours, albeit after a lengthy transition period which could, if Member States take advantage of all the transition periods available, extend to 12 years following adoption of the Directive.

The remaining outstanding area of working time regulation is now mobile workers in road transport. The European-level social partners in this sector tried and failed to reach an agreement on this issue – negotiations were finally declared to have failed at the end of September 1998 (EU9809127F) - and the Commission subsequently issued a proposal for a Directive designed to regulate working time for these workers. However, this proposal has proved to be controversial and is currently blocked in Council (EU9910203F). Nevertheless, now that all the other areas which were previously excluded from the 1993 Directive have been satisfactorily resolved, all effort can now be channelled into finding a solution for road transport workers. (Andrea Broughton, IRS)