Office staff in road transport sector excluded from working time Directive, confirms ECJ

In October 2001, the European Court of Justice ruled that the exclusion of the road transport sector from the scope of the 1993 EU working time Directive applies to all workers employed in the sector, including office staff.

On 4 October 2001, the European Court of Justice (ECJ) delivered its judgment in the case of Bowden and others v Tuffnells Parcels Express Ltd (case C-133/00) on the interpretation of Article 1(3) of Directive 93/104/EC concerning the organisation of working time, which excludes from the scope of the Directive a range of 'sectors of activity', among them road transport. Article 1(3) provides that: 'This Directive shall apply to all sectors of activity ... with the exception of air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training.'

The case

The case arose when a request by three part-time clerical employees of the UK parcels delivery company Tuffnells for paid annual leave under the UK Working Time Regulations 1998, which came into force on 1 October 1998 (UK9810154F), was refused by the management on the grounds that workers in the road transport sector were excluded from the Regulations, introduced to transpose the Directive into UK law. The three employees pursued a complaint to an industrial tribunal but the tribunal supported management's interpretation of the Regulations and held that they were not entitled to paid annual leave.

On appeal, the Employment Appeal Tribunal (EAT) in London stayed proceedings pending a preliminary ruling from the ECJ on whether all workers employed in the road transport sector, including non-mobile office staff, were necessarily excluded from the scope of the Directive and, if not, what criteria should be applied in order to determine which employees were excluded and which were not. The EAT noted that a 'broad purpose' of the Directive was that 'every worker' in the EU should have the right to paid annual leave, but that the exclusion of road transport from the scope of the Directive 'appears to be significantly destructive of that broad purpose', and enquired whether it was entitled to apply national law 'so as to give effect to that broad purpose notwithstanding the clarity of the wording appearing to exclude that purpose' in the road transport sector.

According to lawyers representing the three employees, the Directive's exclusion of certain 'sectors of activity' rather than 'sectors' meant that the key issue was the activities performed by employees rather than the sector in which the employer operated. In these circumstances, they argued, only workers whose activities were directly linked to transport operations were excluded from the scope of the Directive, and office workers did not fall into that category.

On the other hand, the company, the UK government and the European Commission contended that it was clear that a literal interpretation of Article 1(3) - that all workers in the road transport sector were excluded from the scope of the Directive - was the correct one. This was supported by the fact that the Commission's first proposal for the Directive in 1990 had not envisaged any sectoral exclusions, only derogations based on the specific nature of certain activities, but that this approach had been rejected and the final version of the Directive as adopted excluded entire sectors of activity. Such an interpretation was in their view confirmed by the fact that the protection introduced by the 1993 Directive had been extended by Directive 2000/34/EC to workers in previously excluded sectors, including road transport, subject to special provisions concerning mobile workers.

The opinion of Advocate General Tizzano, delivered on 8 May 2001, was also that Article 1(3) of the Directive 'must be interpreted as meaning that the exceptions allowed by that provision cover all workers in the road transport sector'.

Judgment

In the Court's view, it is clear that, by referring to 'air, rail, road, sea, inland waterway and lake transport' the Directive meant those sectors of activity 'as a whole', whereas in the case of 'other work at sea' and 'the activities of doctors in training' it referred precisely to those specific activities as such. Thus the exclusion of the road transport sector extends to all workers in that sector. Furthermore, the ECJ notes that the preamble to the Directive states that 'it may be necessary to adopt separate measures with regard to the organisation of working time in certain sectors or activities which are excluded from the scope of this Directive', indicating that the Community legislature was aware of the limits of the protection provided by the Directive.

The ECJ therefore ruled that: 'on a proper construction of Article 1(3) of [the Directive], all workers employed in the road transport sector, including office staff, are excluded from the scope of that Directive.'

Commentary

Neither the European Commission nor the European Parliament favoured the exclusion of the sectors specified in the final version of the 1993 working time Directive as adopted by the Council. The main rationale for excluding certain groups of workers was to accommodate their particular working patterns, especially in the case of a range of mobile workers. However, as the Commission argued, there was no objective reason why non-mobile workers in the sectors identified by Article 1(3) should be treated differently to employees carrying out similar tasks in other sectors.

Nevertheless, as has now been confirmed by the ECJ's ruling, the Commission accepted that the Directive did exclude road transport and other sectors, and following the publication of a white paper on the issue in 1997 (EU9707138N) proposed amendments to deal with the position of workers in the sectors and activities excluded by the original Directive.

The Commission's proposals for amendments to the 1993 Directive resulted in the adoption of a further 'horizontal' Directive by the Parliament and Council in June 2000 after the Parliament and the Council had approved a conciliation text in May 2000 (EU0005249F). This extends the provisions of the 1993 Directive in full, including those on paid annual leave, to non-mobile workers in the excluded sectors, as well as providing basic protections, again including the right to paid annual leave, for mobile workers in road transport and other sectors excluded from the original Directive. Member States are required to implement the amending Directive by 1 August 2003 (and by 1 August 2004 in respect of doctors in training). A number of sector-specific Directives regulating the working time of mobile workers have also been adopted and a further draft Directive covering mobile workers in the road transport sector is currently at the conciliation stage of the decision-making process, after the Council could not accept amendments to the text made by the European Parliament in June 2001 (EU0107224N).

The issue of principle raised by the case - that all workers should have the right to paid annual leave - has therefore now been addressed by EU legislators, though this may offer scant comfort to the three workers who pursued this case who will have to wait until the UK implements the amending Directive, ie probably until August 2003, for the statutory right to paid annual leave. (Mark Hall, IRRU)