EC: Conciliation committee agrees working time Directive extension

A new version of the text extending the 1993 working time Directive to excluded sectors and activities has been agreed by the conciliation committee set up under the co-decision procedure in order to broker a compromise between the views of the Council and the European Parliament. In this feature, we examine the context and look in detail at the content of the first major social policy proposal to be resolved in this way.

Background

The 1993 working time Directive (93/104/EC), which was adopted on 23 November 1993, contains a considerable number of exclusions and derogations relating to specific sectors and activities. At the time of its adoption, this proposal was particularly controversial and the focus of fierce debates in Council. Following adoption, it was the subject of an unsuccessful challenge to its legal basis by the UK government, which maintained that the text should not be based on Article 118a, on which health and safety measures were based and which, more crucially, was subject to qualified majority voting in Council and therefore able to be approved despite UK opposition to the text.

The text of the 1993 Directive excludes a number of sectors and activities from its scope: 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 Commission therefore decided that this situation should be clarified, noting that there was no objective reason why non-mobile employees should be treated differently to 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. It said it believed that agreements between the social partners would be the best solution. However, noting that many social partners favoured a legislative solution, it considered that a "differentiated approach" was best. Under this option, Commission action would potentially take the following form: the extension of the full provisions of the working time Directive to all non-mobile workers, adjusting existing derogations where appropriate; the extension to all mobile workers and those engaged in other work at sea of the Directive's provisions on annual leave and health assessments for night workers, and on adequate rest and a maximum number of annual hours; and the introduction or modification of sector- or activity-specific legislation concerning working time and rest periods for mobile workers and those engaged in other work at sea.

Meanwhile, sectoral social partner negotiations at European level yielded two agreements, both formally signed on 30 September 1998. Firstly, in the maritime sector, the agreement between the Federation of Transport Workers' Unions in the European Union (FST) and the European Community Shipowners' Association (ECSA) sets out detailed provisions regulating the working time of employees in this sector and has since formed the basis of a Directive (see below). Secondly, an agreement negotiated by the social partners in the rail sector applies the provisions of the working time Directive and lists a number of activities for inclusion in the list of derogations provided for by the Directive. This agreement will come into force once similar agreements or legislation covering all transport sectors excluded from the 1993 Directive come into force.

A second consultation paper was issued by the Commission in March 1998 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 have been negotiated. The Commission was hoping that the social partners in the road transport industry would be able to reach agreement on the organisation of working time in their sector. However, talks between the FST and the employers, represented by the International Road Transport Union (IRU), broke down at the end of September 1998 and the Commission issued a package of measures designed to extend some or all of the protection afforded by the Directive to the excluded sectors and activities. The package consisted of four proposals:

  • 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; and

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

    The third and fourth proposals in this package have been the simplest to progress. Adoption of the Directive implementing the maritime sector social partner agreement was achieved on 21 June 1999 and the Directive on the organisation of working time for seafarers onboard ships using Community ports was adopted on 13 December 1999.

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

    Although the horizontal proposal reached the second reading stage in the European Parliament (EP) in November 1999, the EP made a number of amendments to the text which the Council could not accept. As this proposal is subject to the co-decision procedure, a conciliation committee was subsequently convened to try and broker an agreement and at its second sitting on 3 April 2000 agreed a text, which was issued on 4 April. Below, we examine the main points of this new agreed text.

    The text in detail

    Exemptions

    The new text removes the previous exemptions, contained in Article 1, covering workers in air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training. However, it states that the Directive shall not apply to seafarers, as defined in Directive 1999/63/EC, which gives legal effect to the social partners' agreement on working time in the maritime industry, although this is without prejudice to the definition of "offshore work" (see below).

    Definitions

    The new text adds the following new definitions to Article 2 of the Directive:

  • "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.

    Extension of derogations

    The new text extends the list of circumstances and activities - listed under Article 17(2.1) - in respect of which derogations may be adopted. These derogations concern:

  • daily rest (ie rest between working days - Article 3 of the Directive);

  • rest breaks (Article 4);

  • weekly rest (Article 5);

  • length of night work (Article 8); and

  • reference periods (Article 16).

    Thus, the extended list of circumstances and activities now includes:

  • offshore work as one of the activities where the place of work and place of residence are distant from one another;

  • doctors in training as one of the services relating to reception, treatment and/or care provided by hospitals or similar establishments;

  • workers concerned with the carriage of passengers on regular urban transport services; and

  • persons working in railway transport whose activities are intermittent, who spend their working time onboard trains, or whose activities are linked to transport timetables and to ensuring the continuity and regularity of traffic.

    This essentially means that these workers may be exempted from the above-mentioned 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, crucially, provisions governing maximum weekly working time.

    Doctors in training

    The issue of working time for doctors in training was the most controversial subject in the text and the one which ultimately led to the impasse between the Parliament and the Council. The conciliation committee's text agrees a compromise which appears to tread a middle line between the wishes of the Parliament and the Council.

    The new text states that in the case of doctors in training, certain derogations may be made from Article 6 (weekly working time) and Article 16(2) (reference periods of up to four months for maximum weekly working time).

    In the case of maximum weekly working time, a transitional period of five years may apply. During the first three years of this transitional period, member states must ensure that weekly working time does not exceed an average of 58 hours. During the remaining two years, the weekly average should not exceed 56 hours.

    Further, 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." The procedure for putting this into place is also set out: at least six months before the end of the five-year transitional period set out above, the 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.

    In addition to this two-year period, member states may apply for an additional period of up to one further year in the case of "special difficulties". Application for this should follow the above-mentioned procedure. During both the two-year and the further one-year extension periods, average weekly working time should not exceed 52 hours.

    The transposition date for these provisions of the Directive is four years after the coming into force of the Directive. 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 transitional period), rising to 12 years if the two-year and further one-year extensions are made use of.

    With regard to reference periods contained in Article 16(2), the text states that the reference period may be of up to 12 months during the five-year transitional period (and any extension of this) relating to weekly working and of up to six months following this.

    Mobile workers and offshore work

    The new text inserts an Article 17a, which deals specifically with the working time of mobile workers and those engaged in offshore work. With regard to mobile workers, it states that the Directive's provisions relating to daily rest, rest breaks, weekly rest periods and duration of night work shall not apply to mobile workers. However, it obliges member states to take the necessary measures to ensure that these mobile workers are entitled to adequate rest, except in case of accident or imminent risk of accident or in the circumstances described in Article 5(4) of the 1989 framework Directive on health and safety (89/391/EEC), which refers to occurrences due to unusual and unforeseeable circumstances beyond the employer's control and to exceptional events the consequences of which could not have been avoided despite the exercise of all due care.

    With regard to workers who mainly perform offshore work, the text says that 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 onboard sea-going fishing vessels

    The text inserts a new Article 17b dealing specifically with workers engaged onboard sea-going fishing vessels which fly the flag of a member state. These workers will be exempt from the Directive's provisions in the following areas:

  • daily rest;

  • rest breaks;

  • weekly rest;

  • maximum weekly working time; and

  • length of night work.

    However, it obliges member states to 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.

    Further, member states must choose one of two options:

  • that working time shall be limited 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

  • that a minimum number of hours of rest are provided 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.

    These provisions should be specified by member states by law, regulations, administrative provisions or by collective agreements or agreements between the two sides of industry.

    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, and to the limits on hours of work and rest breaks. These exceptions may take account of issues such as more frequent or longer leave or the granting of compensatory leave.

    Further, the master of a sea-going fishing vessel may require workers to perform any hours of work deemed necessary for the immediate safety of the vessel, crew and cargo or to assist other vessels or persons in distress at sea.

    Finally, if, under national legislation or practice, certain sea-going fishing vessels are not allowed to operate in a specific part of the year which exceeds one month, member states may provide that the workers onboard these vessels must take annual leave within this period.

    Sunday working

    The text deletes the second subparagraph of Article 5, which states that minimum weekly rest should in principle include Sunday. This follows the ECJ's ruling in November 1996 following a challenge by the UK government to the legal basis of the Directive, in which the ECJ states that the Council 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.

    Implementation and review

    Member states have three years, from the coming into force of the Directive, to implement its provisions, with the exception of the provisions relating to the working time of doctors in training, for which the implementation period will be four years (see above). The Directive comes into force on the day it is published in the Official Journal.

    The provisions governing offshore workers (see above) will be reviewed by the Commission five years after the Directive has come into force, as will be provisions governing workers concerned with the carriage of passengers on regular urban transport services "with a view to presenting, if need be, the appropriate modifications to ensure a coherent and suitable approach in the sector". The provisions relating to work onboard sea-going fishing vessels will be reviewed after nine years.

    Under the co-decision procedure provided for in Article 251 of the Amsterdam Treaty, the EP and the Council had six weeks from the agreement of the conciliation committee's new text in which to adopt the joint text. The EP acts by an absolute majority of the votes cast and the Council acts by qualified majority vote. The text was adopted by the EP on 17 May, although many MEPs regretted the long implementation and transition period of working time limits in the case of doctors in training. Some stressed that the nine-year implementation period should be seen as the norm and that extensions of up to a further three years should only be granted in exceptional circumstances. The EP estimates that around 270,000 junior doctors in the EU will be affected, including 10,000 in the UK. The text was approved by the industry Council on 18 May. EIRR will publish the full consolidated version of the new Directive as soon as it is issued.

    Now that this text has been adopted, the main outstanding issue in this area is the road transport sector, for which a proposed Directive is still under discussion in Council.

    Main points of the new text extending the 1993 working time Directive to cover previously excluded sectors and activities

    Introduction of new definitions of mobile workers, offshore work and adequate rest

    Workers engaged in offshore work, 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 will be covered by all other provisions of the Directive, including annual leave and weekly working time.

    Average weekly working time limits of 48 hours for doctors in training may be introduced over a five-year transition period. During the first three years, average weekly working time will be 58 hours, falling to 56 hours during the following two years. Extra transition time of two years, followed by a further one year in the case of special difficulties, is available upon application to the Commission. During this extra time, average weekly working time must not exceed 52 hours. Weekly working time may also be averaged out over a reference period of 12 months during the transition period and subsequently over six months.

    Mobile workers are not covered by the Directive's provisions on daily rest, rest breaks, weekly rest and length of night work. Member states must ensure that these workers are entitled to adequate rest.

    Weekly working time for those employees mainly performing offshore work may be calculated over a reference period of up to 12 months.

    Workers onboard 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. Member states must ensure that these employees are entitled to adequate rest and that their working time is limited to 48 hours a week over a reference period of 12 months, although member states may allow exceptions to this for objective or technical reasons. Further, member states must make sure that either: working time is limited to a certain number of hours within a given period; or that a minimum number of hours of rest are provided within a given period. Again, member states may grant exceptions to these limits in cases such as the granting of compensatory leave.

    The provision that the weekly rest day should in principle be a Sunday is deleted.

    The transposition period for this Directive is three years following its entry into force, 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 onboard sea-going fishing vessels will be reviewed after nine years.