New law on working time of mobile road transport workers in force

A law adopted in Hungary in early 2005 transposes a 2002 EU Directive on the organisation of the working time of persons performing mobile road transport activities, as well as setting further sectoral rules for the road transport industry.

Act XI of 2005 on the modification of Act I of 1988 on Road Traffic transposes EU Directive 2002/15/EC on the organisation of the working time of persons performing mobile road transport activities (EU0110203N), and sets further sectoral rules on road transport. In accordance with the Directive, the provisions of the Act are applicable to drivers who perform their activities under the scope of EU Regulation 3820/85/EEC on the harmonisation of certain social legislation relating to road transport or, alternatively, the European Agreement concerning the Work of Crews of Vehicles Engaged in International Road Transport (AETR). In simple terms, the provisions cover long-distance bus and truck drivers, but do not apply to short-distance drivers such as drivers of buses, taxi cabs and smaller vans. Those who are covered by the Act (hereinafter referred to as 'drivers') are subject to the regulations of both the Labour Code and the Act, and, due to the legal transposition, to the abovementioned EU Regulation or, alternatively, the AETR agreement. Those not covered by the new Act remain subject solely to the provisions of the Labour Code.

Lack of sectoral regulation

Although the road transportation sector employs tens of thousands of workers in Hungary, special labour regulations were almost totally absent until 2001. In that year, the AETR agreement was incorporated into Hungarian law. Then, with the accession of Hungary to the EU in 2004, Regulation 3820/85/EEC became applicable as well. Still, there were neither legal provisions nor an appropriate sectoral collective agreement on the working time of drivers, as the abovementioned laws provide rules only on driving time, which is only part of the total working time of drivers.

According to the opinion of many experts, the lack of sectoral regulations was a major problem. In their view, the general labour law rules could sometimes be hardly applied to the sector, especially in the case of truck drivers. For example, it was hard to adhere to the daily rest provisions of the Labour Code in cases of waiting at border crossings, which could take up to several days, especially before EU accession. Similarly, it was practically impossible to observe another provision of the Labour Code that requires the employer to inform the worker about the working time schedule a week in advance. Despite this provision, many drivers were informed about the actual trip to be performed only a few hours in advance.

The obligation to implement Directive 2002/15/EC served as a good opportunity for the government to solve the problems caused by the lack of sectoral regulation through legislation. The Directive itself includes several provisions offering solutions for some of the existing problems. For example, the introduction of the category of 'period of availability' offered at least a partial solution for the problem of long waiting periods at borders. Nevertheless, not all types of waiting at borders qualify as a 'period of availability'. When the driver is obliged to stay at his or her workplace (ie, in the truck) queuing for the border check-point, this counts as driving time and, therefore, working time.

Main provisions of the new regulations

The Act copies the provisions on the period of availability and on working time almost word for word from the Directive. Consequently, no drivers may work more than 48 hours on average over a reference period, and the working hours worked for different employers have to be totalled.

Nevertheless, the new Act has introduced some novelties as well. For example, the Directive includes no provisions on the maximum length of the period of availability and on the remuneration thereof. According to the Act, the length of consecutive periods of availability and the working time can exceed 24 hours only in certain specified cases, especially when the activity performed cannot be interrupted (for example, in the case of waiting at borders). The Act also provides that the period of availability has to be remunerated, usually at 40% of the normal wage.

The long-term problem of the sector, whereby it was almost impossible to observe the Labour Code's rule on the working time schedule, is solved in the following manner: the new Act requires the employer to inform the driver about the next trip 12 hours in advance. If the driver is capable of working (for example, not influenced by alcohol) the employer may unilaterally deviate from this provision, but in this case the driver receives more remuneration for the first 12 working hours of the trip, as those hours qualify as overtime.

Finally, there is an interesting invention in the Act: a 'soft law' provision requires the employer to organise trips in such a way that the driver may spend as much time as possible in the place determined by himself or herself - which will usually be the driver’s home.

As mentioned above, the general rules of the Labour Code also apply to drivers. For example, in the absence of a collective agreement's provision to the contrary, the daily working time cannot exceed 12 hours. Other general rules on wages, annual paid holidays, termination of employment and other important issues, as well as the provisions of collective labour law, including those on trade unions and works councils, are applicable.

Social dialogue

The government's original draft bill specified 36 hours as the notice period for informing the driver about the next trip; however, even the very first draft included the abovementioned exception, in that if the driver was informed less than 36 hours in advance, a certain part of the working time was to be considered overtime, and therefore better remunerated. This proposal was generally welcomed by the trade unions, though one of them found the period of 36 hours too short. Employers, on the other hand, said that 36 hours was too long and unrealistic in certain cases. Later, the employers’ demand was accepted and the deadline was reduced to 12 hours. Some of the employers’ organisations criticised the provision which requires that the period of availability has to be remunerated. Furthermore, they demanded lifting the 12-hour limit on daily working time as a general rule. This rule, however, has been retained by the new law.

Commentary

As far as industrial relations in the Hungarian road transport sector are concerned, the main issue seems to be why the bargaining partners have been unable to resolve the abovementioned problems through collective bargaining. In fact, there have been two series of negotiations to conclude a sectoral agreement in road transport. For public bus services, dominated by the relatively large state-owned companies, a collective agreement has been in existence for many years, the wage increase stipulations of which are regularly modified by the signatories (HU0502102N). In the case of freight transport services, however, which are typically the domain of small and medium-sized companies, an attempt was made not long ago to conclude contractual regulations. However, in the latter case both the representativeness of the parties and the language of the agreement reached were heavily criticised by other actors in the sector, so the extension of the agreement to the whole industry was not a realistic option at all. Under such circumstances, the government’s initiative and legislation was the only possibility to create a universal regulation, and to meet the March 2005 deadline for the transposition of the Directive. (Gábor T Fodor and László Neumann, Institute of Political Science, Hungarian Academy of Sciences)

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