EU: Commission questions exclusion of maritime workers from employment Directives

Some employment law Directives cover seafarers and fishing industry workers in the same way as other workers, with no exclusions, specific provisions or exemptions. Examples include the Directives on fixed-term work (1999/70/EC), part-time work (97/81/EC), the health and safety of workers on fixed-term or temporary agency contracts (91/383/EEC), and the information to be provided on the conditions applicable to an employment contract or relationship (91/533/EEC).

Other Directives make specific provisions for certain types of maritime workers. While the general Directive on the organisation of working time (2003/88/EC) excludes seafarers, this group is covered by a specific working time Directive (1999/63/EC). Further, Directive 2003/88/EC contains specific rules for workers on board seagoing fishing vessels. The young workers Directive (94/33/EC) includes special provisions on work performed in the shipping or fisheries sectors.

Several Directives allow member states to exclude some or all maritime workers when introducing implementing legislation. For example:

• The Directive on European Works Councils (94/45/EC) applies to crews of fishing vessels falling within its general scope of application, but states that member states "may provide that this Directive shall not apply to merchant navy crews". One reason given for this exclusion was that in general these crews work at a great distance from one another and from management, making it very difficult to bring them together for consultation. Six member states have made use of this provision; two others have excluded merchant navy crews on the grounds that specific legislation exists for them; and three further countries have introduced mechanisms that adapt their implementing legislation to the situation of seafarers.
• The national information and consultation Directive (2002/14/EC) allows member states to "derogate from this Directive through particular provisions applicable to the crews of vessels plying the high seas". The reasons given for this exclusion were the difficulty of applying information and consultation procedures on board ships operating a long distance from a company's headquarters and the fact that seafarers’ contracts are frequently short term. However, the exclusion is not unconditional because it obliges member states to provide for "particular provisions" for ships' crews. It therefore cannot take the form of a simple absence of regulation or imply a different level of protection. Eight member states made use of this option, but only three of them have introduced particular provisions applying to ships' crews.
• The Directive on the protection of employees in the event of their employer's insolvency (2002/74/EC) allows member states to exclude claims by certain categories of employees from its scope, where other forms of guarantee exist that provide adequate insolvency protection for these employees. While this provision does not make specific reference to seafaring workers, member states may apply it to them. Further, the Directive permits member states that already excluded "share fishermen" from their existing national legislation to maintain this exclusion. Six member states have used these exclusion options.

Finally, some Directives simply exclude maritime workers from their scope of application.

• The Directive on collective redundancies (98/59/EC) states that it does not apply to the crews of seagoing vessels. When it proposed amendments to the existing redundancies Directive in 1992, the commission argued that the information, consultation and notification requirements laid down in this Directive are "in no way incompatible" with the special nature of employment contracts or relationships of the crews of seagoing vessels. Their exclusion from the protection provided by the Directive was "not justifiable", unless they are covered by other forms of guarantee offering them equivalent protection. The council opposed this reference to other forms of guarantee offering equivalent protection and it was excluded from the changes made to the Directive at that time.
• The Directive on transfers of undertakings (2001/23/EC) excludes seagoing vessels. When it proposed amendments to the existing transfers Directive in 1994, the commission argued that seagoing vessels could be excluded from the Directive's information and consultation rights but not from its fundamental provisions (ie the maintenance of employees' rights in the event of a transfer). This view was not accepted by the council in the 1998 revision of the Directive.
• The posted workers Directive (96/71/EC) states that it does not "apply to merchant navy undertakings as regards seagoing personnel". Posted workers are defined in the Directive as those who, for a limited period, carry out work in the territory of a member state other than the state in which they normally work. Strictly speaking, according to the commission, seagoing personnel on a vessel plying the high seas are not considered as being posted “to the territory of another member state”.

With regard to the Directives that allow member states to exclude maritime workers, or themselves exclude this group from their scope, the commission in most cases argues that these exclusions should now be reconsidered:

• The EWCs Directive. The commission believes that the option to exclude merchant navy crews needs to be re-examined, as: the sector's highly internationalised workforce needs transnational information and consultation procedures; the majority of member states do not use the option; and the Directive's provisions are flexible. However, it accepts that "the specific working patterns of seafarers will always need to be taken into account." One possibility is to replace the exclusion option with an authorisation to adapt national provisions to the specific situation of merchant navy crews, particularly long-haul crew members, as some member states already do.
• The national information and consultation Directive. The commission will "examine the legal conformity" of the particular provisions for the crews of vessels plying the high seas adopted by some member states in a forthcoming report on the implementation of the Directive.
• The insolvency Directive. The commission wants a reassessment of whether the exclusions applied by member states remain justified and whether other forms of protection afforded in such cases have proved to be equivalent.
• The collective redundancies Directive. The commission believes that there are "reasonable grounds" for re-examining the way that the Directive deals with the protection of the rights of crews of seagoing vessels.
• The transfer of undertakings Directive. The commission states that "on the face of it, there does not seem to be any specific reason to maintain" the exclusion of seagoing vessels. The Directive's provisions on safeguarding employees' rights "do not appear to be incompatible" with the special nature of the employment contracts or relationships on seagoing vessels. As for information and consultation rights, the approach should be "consistent" with that to be adopted for the Directives on collective redundancies and national information and consultation. Further, a "considerable number" of member states have not chosen to exclude seagoing vessels from the scope of national legislation implementing the Directive. For the commission: "It is therefore obvious that this issue requires further attention."
• The posted workers Directive. In a 2006 report on the implementation of the Directive, the commission stated that the exclusion of seagoing personnel "is considered justified by the vast majority of member states, given the specific nature of the itinerant work done by this group of workers and the practical difficulties associated with monitoring them". It concludes that the Directive's definition of posting does not seem to be applicable to seagoing personnel and that their exclusion "appears to reflect this reality and therefore to be justified".

The commission states in the communication that it is "committed to improving the Community legal framework for workers in the seafaring professions". Its analysis "indicates that their exclusion from the scope of some Directives might not be entirely justified insofar as they do not appear to contribute to the application of specific solutions, more adapted to the concrete situation of such workers".

Of particular concern to the commission are the rights of seagoing workers to protection in the event of the insolvency of their employer or a transfer of undertakings, where "a coherent approach should be promoted in order to enable them to exercise their rights effectively" both at national level and in multinational companies. The existing exclusions from the scope of the Directives regarding information and consultation also "merit review".

The commission argues that where "sufficiently strong reasons" exist to maintain the existing exclusions or derogations, "consideration should be given to whether specific EU legislation for the sector would be the most appropriate solution to guarantee to seafaring professions the same level of protection enjoyed by other workers under the general Directive" in question. The particular legal conditions applying in the member states need to be examined in order to make sure that the seagoing professions enjoy adequate levels of protection, particularly in the cases of "conditional exclusions" provided for by Directives, which oblige member states to establish more specific regulatory provisions or alternative guarantees, ensuring the same level of protection.

Any proposals concerning the reassessment of exclusions and/or derogations applicable to maritime sectors will, the commission states, be considered on the basis of a thorough analysis of their impact on the competitiveness of the EU seafaring industry. Moreover, account will be taken of international (International Labour Organization and International Maritime Organisation) standards and their interaction with EU rules.

Against this background, the commission asks the EU-level social partners to respond to the following questions:

• Do respondents share the commission's analysis of the justifications for the exclusions and derogations from EU labour legislation concerning seafaring professions?
• Should the elimination of exclusions that are no longer justified lead to the inclusion of seafaring professions within the general scope of application of the relevant Directives? What should be the priorities for action in this respect?
• In the case of exclusions that respondents consider justified owing to the particularities of the sector or other reasons, is an equivalent level of protection for seafaring professions guaranteed by other means? Is a specific regulation within the relevant Directive or a specific EU legal instrument for the seafaring professions warranted?

On other issues covered by the communication, the social partners are asked:

• What means do respondents find "more appropriate" in order to enhance health and safety on board ships, in particular on small fishing vessels (which are excluded from Directive 93/103/EC on the minimum safety and health requirements for work on board fishing vessels)?
• Taking into account the division of legal responsibilities between the Community and member states as regards social security, what means of action are "more appropriate" in order to improve the social security protection of workers in seagoing professions (the communication argues that EU rules on the coordination of social security "can only ensure a very partial protection of rights in the case of seafarers")?

The consultation represents the first stage of the process laid down in art. 138 of the Treaty establishing the European Community. Before submitting proposals in the social policy field, the commission consults the social partners on the possible direction of Community action. Then, if the commission considers Community action advisable, it consults a second time on the content of the envisaged proposal. At that stage, the social partners may seek to negotiate a European-level agreement on the issue in question, which may be a substitute for EU legislation. The social partners have six weeks in which to respond to the first-stage consultation (that is, until late November).

Commenting on the launch of the consultation, Vladimír Špidla, the EU commissioner for employment, social affairs and equal opportunities, said: "Jobs in the maritime sector should be of the same standard as in other sectors: this includes working conditions and social protection. At the same time, the EU has to contribute to consolidating a global level playing field for the maritime sector. This is especially important if the latter wants to attract young, highly skilled professionals. The views of workers and employers in the reassessment of any labour and social legislation are essential for any such discussions."