White Paper on sectors and activities excluded from the working time directive
COMMISSION OF THE EUROPEAN COMMUNITIES *** * * • • * -It 11•* Brussels, 15. 07. J 997 COM(97) 334 final WHITE PAPER ON SECTORS AND ACTIVITIES EXCLUDED FROM THE WORKING TIME DIRECTIVE White Paper on Sectors and Activities excluded from the Working Time Directive Table of contents INTRODUCTION PART ONE: BACKGROUND AND ANALYSIS The Community Charter of the Fundamental Social Rights of Workers The Working Time Directive Public Safety The Problem The nature and extent of the exclusion Self employed Employment in the excluded sectors Legal and Contractual Situation in the Member States Action at Community Level Joint Committees and Studies Sector-by-sector analysis and assessment Road Transport Rail Transport Urban Transport Inland Waterways Air Transport Sea Transport Sea Fishing Other Work at Sea Doctors in Training PART TWO : OPTIONS Criteria for action Policy Options Option 1 : Non binding approach Option 2: Purely sectoral approach Option 3 : Differentiated approach Option 4: Purely horizontal approach PART THREE : THE WAY FORWARD Proposed Course of Action CONCLUSION ANNEX 2 2 2 2 3 3 3 4 4 5 5 6 6 6 7 8 8 9 10 10 11 12 14 14 14 14 14 15 15 16 16 18 White Paper on Sectors and Activities excluded from the Working Time Directive INTRODUCTION The aim of this White Paper is to 1. the the best ways of ensuring find protection of the health and safety, with time, of workers regard currently excluded from the Working Time Directive (93/l 04/EC). to working 2. The White Paper is in three parts. The first part sets out the background and an analysis of the current situation. The second part sets out the options. In the third part the Commission sets out its views on the way forward in this matter, subject to comments received on this White Paper. The White Paper has been 3. prepared folJowing informal consultation with the social partners on the basis of a Working Document of the Commission Services. PART ONE BACKGROUND AND ANALYSIS the The Community Charter of Fundamental Social Rights of Workers 4. The Community Charter of the Fundamental Social Rights of Workers contains provisions in relation to working time and holidays. Thus point 7 refers to the approximation of conditions as regards the duration and organisation of work. Point 8 refers to the right of every worker to a weekly rest period and to annual paid leave, while point 19 states that every worker must enjoy satisfactory health and safety his working environment. conditions in The Working Time Directive The Council 5. of Ministers adopted Directive 93/104/EC on certain aspects of the organisation of working time on 23 November 1993. It was based on Article I l 8A of the EC Treaty. This requires Member States to ''pay particular attention to encouraginK improvements, especially in the working environment, as regards the health and sqfety of workers " 6. The essential aims are to ensure that workers are protected against adverse effects on their health and safety caused long hours, by working excessively 2 inadequate rest or disruptive working patterns. The Directive provides in particular (Articles 3 to 8) for : • a minimum daily rest period of 11 consecutive hours a day; • a rest brea< where the working day is longer than 6 hours; • a minimu. "11 rest period of 1 day a week; • a maximum working week of 48 hours on average including overtime; • 4 weeks 1 annual paid holiday; and that that sides of 1ndustry. These tlcrogutions arc allowed normaliy ""provided the workers concerned are afforded equivalent periods of compensatory rest". In the ~ase of the provision for a maximum working the week of 48 ho1lrs on av·erage, derogations allow the "reference perio~s" over which the average can be cab:ilated to be extended t:p 1o 6 montbs in E. 11 cr. ses where derogations are allowed aTI6. up to 12 months by ~eans o~. collective agreement or agree::nents between ·t:1e ·~No sides of inckstry. 9. Member S:. ates were required to impiement the Dirn~·tive by 23 November 1996. • ni2ht workers must not worlc n". a. ore. th;L-i S homs in 24 on average. to relating 7. The rnrective contains a numb-er of fi. ctber provisions the protection of the health and safety of :night workers and shift workers. It also requires measures the organisation of work according to a certain pattern takes account of the general pr!nciple of adapting work to the worker. to be taken that sc range annual In particular, except in the a wide 8. The Di:ective makes extensive provisions for flexibility in the application of the principles of the directive to specific situations. the Directive provides for derogations from all the main leave provisions prov1s1on, of circumstances. These include "in the case of. :lctivities where the worker's place of work and his place of residence are distant from one another or where the worker's different places of work are distant from one anofaer"; "in the case of activities involving the need for continuity of service or production"; "where there is a foreseeable surge of activity"; and "in the case of accident or imminent risk of :iccident". In addition derogations :from the same provisions are allowed in respect of any activity, by means of collective agreement or agreements between the two 3 Public Safety 10. \VhHe it is workers' specific hea1tb and safoty whicil is quite properly ~. ae subject matter of this Wbite Paper, the Commission wis~ies to underscore the benefits that the general public may derive from adequate working time arrangements in all sectors. This is particularly the case w}th regard to transport ac'tivities and doctors in training, where fatigue brought by excessive hours of work may constitute a direct risk to the welfare and safety of others. The EC Treaty foresees specific Community areas where required for ensuring a high level of such action transport safety. Where relates times consistency with measures protecting the workers' health and safety must be ensured. to working (driving) action in Th~ Problem The. nature and extent qftbe exdusion The Commission's 11. original proposal for a Directive on working time and economic covered sectors all activities. The Council decided, however, to exclude certain sectors and activities from the scope of the Directive. The precise wording regarding the scope of the Directive is: "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" (Article 1 paragraph 3 ). The sixteenth to recital : "whereas, given the 12. Directive states the. \pecific nature of the work concerned, it may be necessary to adopt separate measures with regard io the organization of working time in certain sectors or activities which are excluded from the scope of this Directive 11 • the Thus exclusions were 13. considered by the Council to be directly related to the type of work involved, and not because of any suggestion that health and safety as regards working time was sufficiently protected in those sectors and activities. A common feature of all these sectors, apart from doctors in training, is that key workers typically are required to spend time away from home as an integral part of their duties. TI1e way in which the exclusions 14. are drafted has been interpreted as implying that all workers in the transport and sea fishing sectors are excluded from the scope of the Directive, even those who perform sedentary tasks. The Commission considers that this should be clarified, as there is no objective reason why "non mobile" employees should be treated differently in comparison to employees in other carrying out similar industries. The test should relate to the nature of the activity, not to a definition of the "sector" in which the employee works. tasks In the case of "other work at sea" 15. and "doctors in training", the reference, implicitly or explicitly, either to is "activities", so the problem of defining the work involved does not arise. Self emoioved :6. Self-emplo:1cd \. vcrkers are not coverec b: 1 Directive 93/l (J4/3C. V,111ile self-employmeat £s cormr;. 011 ir1 certain excluded sectors, fo:- exai1~)le ie the read and inland '"atenvays sectors~ it is alsc prevalent in many other sectors~ already covered by the Directive, for e};ampie :he, construction indw1try. The argum\::m th(:_t special treatment should contir. ue to se applied in certain sectors 1 sirr. ply because of the high proportion of self-eniploye(; workers canno~· therefore be sustai. ned. This does not mean 10 sa. y that self employed workers <,. re excluc1ed fi·mi'l BU Community ieg:s1 aticr. 1. ::;or ;:x8n-. ple: :x. the economically most impcrt2nt exducied Sf. ;] f-en:pJ o~/ed sector, transport, workers are covered by the existing regulations on driving time. road 17 However, while the objective is to protect health and safety, the Conm. 1 ! ss ior: the effect cf possible to is sensitive distortions of competition the imperatives of enswi. ng trans1::crt safety, and this is why an integrated approach to the implementation of the Community, s transport and social policies is favoured in this White Paper. and Employment in the excluded sectors The total employment, including 18. self-employment, in all the se<;tors and activities excluded from the Directive, is about 5. 6 million (about 4% of total employment in the EU 1). Of these 3. 5 million are in the Road Transport industry. In addition there are some 3 million Source: Employment in Europe 1996 4 workers in "own account"2 road trcuisport, which is not excluded from the Directive. Estimates of total employment in the different sectors and activities are set out in the Annex. More detailed information is to be found in the sector-by sector analysis (see paragraphs 29 to 66 below). Legal and Contractual Situation in the Member States 19. There have been significant changes in national legislation since the Directive was adopted in 1993. These reflect in part the measures taken by Member States to implement the Directive and partly moves towards greater flexibility in working time arrangements, combined with reductions in working time. A study of legal and contractual limitations to Working Time in the European Union has recently been prepared by the European Foundation for Living and Working Conditions3. often 20. The extent to which employees are already covered by general or sector specific working time legislation varies enormously both between Member States and between sectors. All Member States have some legislation which provides some protection in respect of working time in respect of some categories of workers. But there is no apparent uniformity or consistency. In some cases general working time laws apply to some (or all) of the sectors and activities excluded, in other cases there are specific legal rules applying to the sector. In most countries, legislation is complemented by collective agreements. There is, however, 2 Mostly in chemicals, oil products, agri-food, construction and the gross/retail trade 3 Legal and Contractual Limitations to Working Time in the European Union, published by the the Office European Peeters Publications for Official Publications of Communities and legislation in most Member States providing minimum periods of annual leave, in ·respect of most sectors. Action at Community Level Parliament. 4 21. In negotiations with the European Parliament during the Second Reading, the Commission undertook to take initiatives in respect of the sectors and activities excluded the the Directive. For example, from the to Commission's Communication European the Commission's intention "to take appropriate initiatives as soon as possible in respect of the different sectors excluded from the scope of the Directive. The preparatory work for the implementation of these initiatives is being undertaken in the context of the Joint sectors Sectoral Committees concerned (where they exist). " stated for the that 22. In the Medium Term Social Action Programme 1995-97, the Commission stated that "discussions with the social partners and/or studies will continue on how best to the activities and sectors ensure the the directive on excluded organisation of working are time appropriately covered. If necessary, the Commission will consider bringing forward proposals to complete the Directive in 1996- 1997". from 23. In its Resolution on the Mediwn Term Social Action Programme 1995-1997, the European Parliament expressed "the wish that the Commission in its forthcoming Work Programme for 1996, will put forward detailed legislative proposals on. working time directives for those sectors excluded from the Working Time Directive, as well as social dialogue actions". In its Resolution on a reduction and adaptation of working time, the also the Parliament called on 4 SEC(93) 1054 of7 July 1993 5 Commission. to encourage the two sides of industry to consult. at European level with a view to concluding flexible agreements on reducing and adapting working time particularly in sectors currently excluded from the directive on working hours. 1995-2000 Programme In its Common Transport Policy 24. Action the Commission indicated its intention to launch sector-specific initiatives on working time in various transport modes once the outcome of discussions between the social partners has become sufficiently clears. In its Resolution on this Action Programme the European Parliament endorsed the need to submit legislative proposals on working time in transport, in particular in areas where social partners did not reach agreement. Joint Committees and Studies 25. In the five transport sectors and the sea fishing sector discussions between the social partners are organised in the form of Joint Committees at Community level. provide The Commission requested to 26. the JOmt Joint Committees descriptions of the existing situation with regard to working time arrangements in their and these recommendations on how to adapt the principles of the Directive with regard to their area of work. sectors give to 27. On 16 June 1995 Commissioners Flynn and Kinnock met all five Joint Committees in the transport sectors. At this meeting there was widespread agreement that there was no justification for excluding "non-mobile" workers from the scope of EC legislation on working time and that this needed to be put right. 28. The Commission arranged for factual studies to be undertaken of the 5 See COM(95)302 final. 6 working time arrangements in respect or "other work at sea" and "doctors in training" to provide the basis for the analysis which follows, in respect of these activities. Sector-by-sector analysis and assessment The following paragraphs analyse 29. the specific features and issues relating to the regulation of working time in each sector and activity, including, in particular, the level of employment, and the discussions in the relevant Joint Committee or the views of the social partners. This analysis is followed in each case by an assessment of the possibilities for legislation on working time in the sector, including any obstacles which might arise from the simple extension of the Working Time Directive to cover workers in the sector concerned. Road Transport 30. Road transport is by far the largest sector not covered by the Directive. Precise figures are difficult to establish. However, it has been estimated6 that road transport activities provide a total of 6. 5 million jobs in the EU. A significant number of these are self-employed. There are about 1. 2 million jobs in passenger transport, some 2. 1 million in road haulage for hire or reward and 3 - 3. 5 million in own account transport (mostly in agri-food, chemicals, construction and the gross/retail trade). It should be noted, however, that own account transport workers are already covered by the Directive. products, oil 31. This is the only industry where there is relevant Community legislation. In particular, Regulation 3820/85 provides for maximum daily driving periods of nine 6 Road Transport in the European Union: Aspects of the Organization and Enforcement of Working and Driving Time Regulations hours which may be extended twice in any one week to 10 hours, breaks of at least 45 minutes for each period of four-and-a-half hours driving, and daily rest periods of eleven hours which may be reduced to a minimum of nine consecutive hours not more than three times in any one week (on condition that compensatory rest be given in the following week). But there are important differences between this Regulation and the \Vorking Time Directive. The provisions of Regulation 3820/85 have as their objective not only the protection of the health and safety of workers, but they also primarily ain1 to hannonise the conditions of competition bet\veen all types of road trans:port operators as well as to improve in road safety and working conditions general. Given its direct link with road safety, the Regulation applies not only to employees but also to se1f-employed drivers. long overall working 32. Nevertheless, Regulation 3820/85 does not stipulate maximum hours for activities other than driving, such as loading and unloading which can form an important pait of the daily working time of drivers but which are not covered by the Regulation. 1bis may in certain circumstances lead to extremely times. Furthermore there are many exclusions and possibilities for further exceptions from the Regulation. As a result, a variety of rules is currently applicable the Community significant distortions of to leading competition. This means the road that haulage sector can be subject to industrial relations problems which have already led to in the provision of serious disruptions transport services, affecting considerably the free movement of goods, services and p-ersons. These shortcomings need to be phased out by appropriate Community action. in Employers have argued that a 33. better application of existing mles would be preferable to new rules, whereas trade unions stress the need to cover all working time. Discussions in the Joint Committee were resmned towards the end of 1996, but there appears to be little common ground between the two sides. The provision. for consecutive daily 34. rest in the Working Time Directive might be con. r;idered to be the most difficult rule to apply to mobile workers involved in long distance road transport. However, there are already similar provisions in Regulation 3820185, and this is the most appropriate instrument to deal with the issue of daily and weekly rest for mobile workers. Moreover, there does not appear to be any sector- 5pecific argument why the provisions on paid leave and health assessment for night workers in the Working Time Directive, as well as guarantees of adequate rest and ll maximum number C?l hours worked per year should not apply to all mobile workers in the sector. The full provisions af the Working Time Directive should ap_ply to all non mobile workers. As a complement to any general action taken with regard to the protection of the health and sqfety of workers in respect of worJing time, the Commission intends to propose in early 1998 important amendments to Regulation 3820185. These amendments would, inter alia, the integrate new provisions on ma:x:imum daily, weekly and fortnightly limits and to placed loading/unloading the Community's legislative system on driving time in road transport. They will also seek to achieve uniformity as far as checking rules andprocedures are concerned on activities driving into be Rail Transport 35. Almost one million people were employed in rail transport in the 15 Member States of the EU in 1995. A study , undertaken for the European Commission by the Committee for Transport Workers' Unions in the European Community? shows that in 1992, 19% of (now Federation) 7 7 Social Aspects of the Common Transport Policy: Study of the Working and Social employees worked as drivers and other train crew, 31 % as traffic/maintenance staff porters, (goods semi-skjlJed workers, shunters for train coupling in stations and/or private installations, containers etc. ) and 50% were operational and station staff. tenninal sidings, 36. A specific feature of the industry is the intermittent nature of some of the work, particularly in rural areas. Thus the intensity of activity is detennined by the frequency of the trains. This can give rise to problems of calculation of "working time" in some cases. _ There are also problems in applying the Directive to and drivers train long-distance these accompanying staff. While activities, and working conditions in general, are covered by a series of collective agreements at national level, the absence of any Community level growing framework and problems competition with new entrants gathers momentum. present liberalisation will as The Joint Committee on Railways 3 7. reached agreement on 18 September 1996 that the provisions of the Working Time Directive should be applied to all workers in the industry, including mobile workers, with appropriate adjustments to the derogations. A condition of the agreement is that similar to other provisions should be applied transport sectors at the same time. A further condition conditions concerning working time should be applied through legislation to all new entrants to the industry. This arises from fears that health and safety standards with regard to working time might otherwise fall as the industry is opened up to competition. existmg that is Conditions of European Railway Workers by Hugues de Villele and Brenda O'Brien (CTWU) 8 the 38. Rail seems w be a !:ector where existing agreements between social partners work satfafactoriiy. light of the In agreement within the Joint Commitiee, there are no objective reasons for continuing 1he In exclusion in respect of this sector. addition the Comn;ission will monitor developments closely in this indi1. stry with a view to assessing the need. fhr. mpplementwy. \pecjfic action. Urhan Tranworl 39. While not mentioned specifically in Directive 93/104, this "sector!(, which cover~ aspects of rail and road transport is ex duded from the Working Time Directive. It is also excluded to a large extent from RegulatilJ~1 3820/85 (regular passenger services \\iith ?JJ operating radius of 50km or less), which may affect the safoty of passengers. T~1e recei\,eJ Commission (1. _Jruon !:epresentations Internationale des Transports Publiques) representing the interests of urban passenge. 1· transprni, which arc difforcnt from those of road or rail sectors as such. In formulating any proposals, the Commission will take account of their concerns. have the UJTP services from Inland Waterways in the Approximately 45,000 inland waterway people 40. work transport sector; 35,000 of them are employees and the rest are small operators, owners of between one to three vessels. Nowadays there is a perceptible general upward trend in the number of small operators due to the sale by the big companies of their vessels to their employees. In the case of the sn:all operators with only one vessel, who make the great majority of the small up operators, their vessel is both their means their of making a Jiving as well as those home. permanent However, the Rhine are currently operating on subject rest periods, composition and vessel navigation time. The link between these measures and working time is that the to provisions on crew's its small operator, in as much as he is a member of the crew, to regulations on an ohl igatory rest pcrio<l an<l vessel navigation times. subject is in the two The sides fairly followed 41. Joint Committee for inland waterways decided to enter into negotiations with a view to reaching a Community-level agreement on working time within the industry. The draft agreement, submitted by the workers' side, generally the provisions of the Working Time Directive. It did, however, contain different provisions relating to daily rest, providing for 10 hours consecutive rest, as compared with 11 in the Directive. These negotiations broke down in early 1995, because the employers did not accept that the principle of working time should apply to the category of the small operator. closely 42. The extension of the provisions ~l the Directive to employees in this sector ought not to pose insuperable problems. For, although the basic provision on daily rest periods provided for in the Working Time Directive could pose problems, the Directive does allow derogations from the relevant Article, collective agreement and where the worker works away from home. The Commission intends to submit a proposal to the Council in 1998, containing provisions, inspired by the Rhine Convention, which would apply to all Member States. both by Air Transport It that is estimated there are 4 3. approximately 375,000 employees working for air transport companies the 15 Member States of the EU. About 20% of these are flight crews and the remainder ground staff, including maintenance and ticketing staff. in time Flight are 44. long been necessary, because recognised performance degradation could occur as a result of flight limitations it has serious that that Aviation crew fatigue. presents combinations of factors influence fatigw: not encountered in other profossions. Personnel arc required to evaluate situations, take decisions an<l perform well under stress during long work periods, sometimes at night and after crossing many time zones. It is to protect such personnel not only against short-term fatigue but also from the possible effects of fatigue built up over the course of time. therefore necessary 45. Agreement has been reached in the Joint Committee on Air Transport that the provisions of the Working Time Directive should apply to ground staff (some 80% of all employees). Further discussions in the Joint Committee have concentrated on the application of the principles of the Working Time Directive to flight crews. These have been hampered by disagreements over the inter-relationship between these discussions and parallel discussions within the Joint Aviation Authorities (JAA) on the limitation of flying duty periods for flight and cabin crews. to regard forward With The agreement that the provisions 46. of the general Directive should be extended to ground staff constitutes a considerable step flight personnel, the only substantive problem with extension of the Directive might concern the provisions with regard to daily rest and rest hreah, though with the possibilities for derogations provided by the Directive these should not prove insuperable. As a complement to any general action taken with regard to the protection of the health and safety of workers in respect of working time, the Commission is also considering specific proposals, for reasons of operational safety, for a uniform Flight Time Limitation scheme. 9 Sea Transport The number or seafarers employed 47. in the EU flagged fleet is cstimatcd8 to total about 162,000. Of these, about 129,000 (80%) are nationals of the Member State concerned and 33,000 are non-nationals, mostly from third countries. Long working hours at sea are 48. common. However, a systematic approach to limitation of these hours has hitherto been difficult because of competition from ships flying the flags of third countries. Indeed the decline in employment in the EU-registered fleet - by over 30% between 1985 and 1995 - has been a major preoccupation of both ship owners and seafarers over recent years. For this reason, and because this is a global industry, there has been concern, within the Joint Committee, to reach agreement in the international organisations, before tackling intra-Community issues. Agreement was reached in the 49. International Maritime Organisation in 1995 on the adoption of the revised Standards of Training, Certification and Watchkeeping (STCW) Convention in relation to minimum rest periods for watchkeepers. This provides for minimum daily rest periods of I 0 hours per 24, which can be divided into no more than 2 periods, including one period of at least 6 consecutive hours; and for weekly rest periods of not less than 70 hours. The formal Commission has proposal to the Council amending Directive 94/58/EC on the minimum level of training the of seafarers. This proposal reflects provisions of the 1995 STCW Convention in respect of minimum for rest periods watchkeepers the deck and engine departments. This amended Directive is currently being discussed in the legislative bodies of the European Community and on submitted in a 18 June 1997, the Council of Ministers reached a common position on it. In October 1996, the International 50. Labour Organisation (ILO) adopted a new Convention (N° 180) on hours of work in shipping. The strategy followed, in the lead up to the adoption of Convention 180, was developed by the social partners. The Convention provides, in respect of seafarers on board ship, either maximum working hours ( 14 hours a day and 72 hours a week) or minimum rest periods (I 0 hours a day anci 77 hours a week). TI1e Conference decided on a mechanism which would allow for the provisions of Convention N° 180 to be enforced upon non-EU registered ships operating in EU waters by means of Port State Control. Since then, the social partners have emphasised that it is very important for the strategy that Member States should ratify this Convention. They have also agreed in principle that there is a need for a specific Community instrument on working time in the maritime sector. On that basis, the Commission will, as it has previously indicated, rapidly make a proposal for a Directive. This will take account of the provisions of ILO Convention N° J 80 and, subject to further discussion of the details, elements of the Working Time Directive. Much progress has been made. 51. The Commission welcomes the agreement in the Joint Committee and looks forward to receiving its detailed recommendations. The Commission also hopes that Member States will ratify /LO Convention 180, so that to minimum maximum working time or minimum rest can be eriforced internationally. standards with regard Sea FishinL! 52. There are about 270,000 sea-going fishermen in the EU Member States9. In 8 TecnEcon: Study on professions in the European Union the maritime Number of fishermen (full and part-time) (all EU Member States). Figures are for 199:::1 10 addition there arc relatively small numbers of non-mobile land-based workers in the sea fishing sector, whose activities are directly related to the landing of catches and who are not covered by the Directive. There are also substantial numbers of other land-based workers who are closely related to sea fishing, e. g. port workers and workers in the fish processing these are already subject to the provisions of the Working Time Directive. industry, but 53. Both sides in the Joint Committee for this sector provided the Commission with their separate opinions. These were very different from one another. The employers expressed their opposition to any Directive on working time in the sector, given the specific nature of the industry and the principle of subsidiarity. Particular problems cited included the large number of self-employed workers, financial consequences for share fishermen and the diverse nature of the industry in Europe. ·me trade unions, on the other hand, argued that action is necessary to protect fishermen from long working hours; that the exclusion from Directive 93/104/EC was unnecessary; and that suitable derogations could have been provided. They submitted detailed textual proposals. Discussions resumed earlier this year, with a view to reaching a common position. the in The Commission hopes that the 54. social partners will reach a common position. However, the a~sence of agreement, sector-specific provisions could be proposed for sea-going personnel, covering daily and weekly rest periods. Jn addition, the provisions on paid leave and health assessment for night workers in the Working Time Directive, as well as guarantees of adequate rest and a maximum number of hours worked per year, could be applied to all sea-going personnel in the sector. The full provisiom <f the WorkinK Time Directive should apply lo all non farther mobile workers, with provision. for derogatiom, flnecessary. suitable Other Work at Sea of The number 55. employees working offshore fluctuates seasonally. The best estimate available is that the overall population of workers engaged in "other work at sea" in the EU is approximately 45,000. Of these, most are employed on offshore operations, but some 10,000 are employed in marine contracting work (including saturation diving) and at the high season there are some 3000 personnel in engaged European waters. The main EU countries involved are the UK (with well over halfthe EU employment in the sector), Denmark, Netherlands and Italy. in seismic surveying work 56. According to the study undertaken fix the Commission 10 virtually all offshore work in the North Sea is based around a 12- shift. Some managerial hour working specialists may work and personnel according to the daily requirements of the job, rather than to fixed hours. The duration of the period offshore is typically two weeks, the but varies somewhat according country and employer. In the field of marine contracting in the UK, the arrangements regarding the period offshore are made according to the anticipated duration of the task. If a task is anticipated to take up to about five weeks it is probable that the same crew will remain working for the duration of the job. to is There legislation, 57. often supplemented by collective agreements, containing at least basic prov1s1ons concerning hours of work or minimum except Greece (1990) and Ireland (1991). Source: OECD, Member States to Coshape Ltd: The Working Hours in 'Other Work at Sea' in the Context of Directive 93/104/EC, 1995 11 rest periods offshore in Denmark, Italy and the Netherlands. In the UK there is no specific legislation on hours of work, but each operator is required to prepare a safety case in respect of each installation and an assessment of the risks to the health and sa{ety of their employees. Working time should be included in both the safety case and the risk assessment. In In the UK 58. According to the Coshape report (prepared in 1995), overtime of 6 to 16 hours per week (over and above the 12 in hour daily shift) was not unusual Denmark. the Netherlands, where overtime was worked offshore there had to be compensatory rest during the time offshore. the amount of overtime actually worked varied according to company and activity. In most cases significant overtime work was unusual during routine operations and was limited to about 4 hours a week, though in some instances it was over double this figure. For managerial personnel, overtime of 2 to 3 hours a day was commonplace; in Italy shift patterns and ove11ime working were very varied. The Coshape study concluded that the existing shift patterns appear to be the most appropriate way of organising working time offshore and that the scope for change is significantly limited. The There is no EC level social 59. dialogue in this sector. Trade unions wish for negotiations at EC level, or, failing that, a specific Directive. employers' organisations, on the other hand, have been reluctant to take part in any EC social dialogue and indeed the main organisations state that they are not mandated to do so. They consider that the industry is well regulated and that there is no justification for EC legislation in this sector. A particular concern is to maintain the 2 x 12 hour x 14 shift pattern and an annualised day calculation of working hours. 60. Any proposal needs to allow shift systems based on 2 shifts x 12 hours x 14 days to continue and to give adequate 12 recognition to the international and seasonal nature <?f the indm·try 's working patterns by allowing an annualised calculation <!l working hours. Indeed the working patterm <!f these workers are in many ways analogous to those of ''mobile " trampLJrt workers, in that they work away from home. They should there. fore he treated similarly to such workers. In particular, some of the activities could he covered by similar arrangements for to maritime tramport. those proposed Doctors in IraininL: in features: The exclusion refers to "doctors 61. in training". In general, in Member States, training" the concept of "doctor contains the important two persons concerned have completed their basic (undergraduate) medical training; and they arc preparing for a recognised higher medical qualification. The length of the training period varies from country to is not clear in some country and Member States when this period of training comes to an end. Employed doctors "not in training" are, by definition, covered by the Working Time Directive, subject to the flexibility provided by the Directive, as described in paragraph 8 above. it junior It is estimated that there are over 62. 270,000 doctors hospital (corresponding roughly to the concept of "doctors in training") throughout the EU. However, almost half of these are m legislation on Germany, where national working time already applies. There was an apparent problem 63. the employment status of to relating doctors in training. In some countries, they have a special status, which is neither self employed, trainee. employee, it However, on further would appear that in the vast majority of to be countries, of "employees" employment law. they are considered the investigation, purpose nor for comidering how to extend the Directive, the Commission will take into account the potential impact on the provision and quality <?f health care. A of of duty feature specific 64. the employment of doctors in training relates to "on-call" duty. The study undertaken for the Commission in 1994 11 showed that the treatment varies "on-call" considerably in individual Member States. A and high nwnber of weekly hours excessively long periods of continuous duties are expected of doctors in training in several counL;es, and generally arise through the imposition of night or weekend cover on to a typical weekly working pattern. "Unless there are specific provisions for proper breaks, or other restrictions on the hours that are worked, many rostering systems mean that a doctor in training is working without proper rest for 32 hours routinely, and in excess of 70 hours in the more extreme cases. " The report concluded that although the weekly hours worked by doctors in training were highly variable, they routinely in many exceeded 55 hours a week countries. There is a clear risk therefore to 65. the health and safety of a considerable number of trainee doctors. To the extent that these doctors are directly involved in and medical medical decisions affecting patients, the safety of such patients could also be put at risk. procedures The "on-call" issue for doctors in 66. training should be dealt with at national level. However, the current wording of the Directive does, in fact, allow Member States to de. fine working time in a restrictive way, while allowing a wider definition. There would, therefore, appear to be no practical legal problem in extending the provisions of the Directive to doctors in training, jm·t m· to other employed they already apply existing doctors, while a4ju\·ting derogations to allow the Member States to deal with the treatment of" on call duty". In the 11. Coshape Ltd: The Working Hours of Doctors in Training in the context of Directive 93/104/EC 13 PART TWO : OPTIONS Criteria for action it 67. is Before making proposals, necessary to establish the criteria against which the preferred policy option needs to be judged. In the case of action in respect of workers not covered by the Working Time following criteria would Directive, appear to be appropriate. the 68. The action proposed would need : a) b) c) d) e) f) to ensure adequate protection for the health and safety of workers with regard to working time; to allow flexibility to firms; adequate operating to take account of any impact on employment; not to place unreasonable burdens on firms, in particular small firms, and to take account of specific characteristics of sectors such as share fishing and the heterogeneous nature of sea fishing; to respect subsidiarity; the principle of to respect proportionality. the principle of 69. In addition it is also necessary to ensure as far as possible that action taken, or indeed failure to take action, takes account of European competitiveness and public safety requirements and does not lead to distortions of competition within the internal market and between competing modes of transport. Policy Options The analysis 70. in Part One has shown that there is a problem to be solved, i. e. that in all sectors and activities excluded 14 there are some workers who have no protection against working long hours or no guarantee of adequate rest. I laving identified the policy options to resolve this problem, the Commission must ensure that the chosen solution meets in paragraph 68. the criteria set out 71. the problem can be considered : Four broad policy approaches to - - - a non-binding approach; a purely sectoral approach; a differentiated approach; a purely horizontal approach. Option 1: Non-bindin1i: Approach this Under approach, the 72. Commission would either issue one or more Recommendations or propose Council Recommendations. 1bis would mean keeping the current exclusions from the Directive, if this is justified in a particular sector. l11e essential message would be to urge Member States and the social partners to take the necessary measures to ensure that all workers, whatever their status, have adequate rest and do not work excessively long hours. Most employers' organisations who commented during informal consultation process on this White Paper favoured this approach, including some, particularly those representing the off-shore industry, who argued that the exclusion in respect of their sector should continue. The trade unions were strongly opposed to the non-binding approach. the Option 2: Purely sectoral cwproacb 73. Hitherto, the main approach has been, both within the Joint Committees and in the studies, to seek to find working time arrangements, inspired by the Working Time Directive, which would strike the right balance, on a sector-by-sector basis, between the protection of the health and safety of workers, public safoty requirements and operating flexibility needs. This approach appeared until relatively recently, to be in the Joint unlikely to produce results a) clarification of Directive 93/104/EC to ensure that a11 tne provisions of that Directive app1y to non-mooile wor:(ers; b) to provide for basic minimum protection in respect of wo~. :cing time, such f:S a g'. mw. ntee o:f adeq:. :ate rest anci 4 wee:(S' paid enra. ml Jeave, for a11 other workers not covered by Di:·ective 93/104/EC. Committees. B-. 1t there is now some progress in at least two sectors: sea and rail transport. This js the approach advocated by the E:. rro_pean Tratle Union Confederation {ETUC). Qption 3: Diffe-rentiated ap;>roach T:1e foird option is to differentiate 74. h:etwee11 those activities which can he ac~ommodated under the Wor}dng Time Diredve and those which require S:;')ecific measur~s. This would entail: workers. • extending the full provisions of the W mking Time Directive to all non o:::ibile Appropriate adjustment of the existing derngations wou1d be made to take account, notably of the rieed for co~tinuity of service and ofaer operationa~ requirementsl2; • extending to all mobile wor:(ers and fuose engeged in "other work at seP. " the the Wor:<lng Ti:ne provisions of Directive on 4 weeks' paid anmk'li }eave and health assessments for night workers; and p:oviding a guarantee of adequate rest and for a maximum number of hours to be wor~(ed rumually; • or mod1f1ing. specific introducing legisiafa:m for each sector or a~tivity concerning the working time and rest periods of mobile workers and foose engaged in "other work at sea". QQt1on 4: Purely horizontal approach The fourth option would be to 7 5. propose a purely horizontal measure, which did not address the sector-specific aspects of the working time question. Such a proposal might contain the following features: i2 bcluding, for example, the 'on-cal; duty' of trainee doctors, and quayside activities in the sea fishing sector directly related to the J3nding of catc!les. 15 ---·-·---------- PART FORWARD THREE THE WAY Proposed Course of Action The assessment in Part One leads to 76. three conclusions. 77. The first is that there is a health and safety problem which must be rectified given that there are workers in all the excluded sectors who have no protection against risks to their health and safety through having to work excessively long hours. Furthermore it is not justifiable on objective grounds to exclude any sector totally. 78. TI1e second conclusion is that there is no reason to treat "non-mobile" workers differently from other workers already covered by the Directive. l11e third conclusion is that in order 79. to ensure minimum health and safety the basic principles of the protection, Working Time Directive should apply to all workers, and that there is no justification for complete exclusion of any of the sectors provided that public safety and operating flexibility requirements can be met in an appropriate way. The Commission continues 80. to believe that agreements between the social partners would be the best solution. Such agreements could be implemented either in accordance with the procedures and practices labour or specific level. The through Commission notes, however, that in the sectors where agreement has already been reached (rail and sea transport), the social partners are advocating a legislative solution. to management and legislation at EC In the light of these considerations, 81. the Commission's preliminary view is that the most practical approach wo~ld be to initiate the legislative process in accordance with Option 3. This approach guarantees the protection of health and safety while allowing for sufficient flexibility to take 16 account of the operational considerations which were at the root of the exclusion in the first place. the On other hand, 82. the Commission believes - in the light of the analysis of the sectors - that the non-binding (Option 1) would not be approach approp1iate, as it gives no guarantee that the health and safety requirements will be addressed in regard to all workers. The purely sectoral approach (Option 2) would make it very difficult to achieve a coherent treatment of non-mobile or equitable workers, while the purely horizontal approach (Option 4) would fail to provide the health and safety protection required by mobile workers. Furthermore, Options 1 and 2 could in themselves lead to distmtions of competition. 83. How does this proposed course of action (Op~ion 3) measure up against the criteria established in Part Two above ? 84. The first test is to ensure adequate protection for the health and safety of workers with regard to working time. 111e options envisaged are based on the Working Time Directive, which to establish minimum standards. itself seeks 85. The Working Time Directive allows considerable flexibility to finns (see flexibility paragraph 8 above). Similar should be allowed in any new proposal. Careful consideration will also be given to the views of employers to ensure adequate any new additional proposals. flexibility under 86. With regard to employment, it is most important that action at European level should either help to create or preserve jobs or at least should not harm the employment competitiveness of situation European firms. Widely different views are held on the effect of reducing working time on employment. These are discussed in the and the objection to legislative action with regard to subsidiarity. to Turning 89. the principle of proportionality, the Court has consistently held that, in order to establish whether a provision of Community law complies with the principle of proportionality, it must be a'iccrtained whether the means which it the o~jective employs arc suitahle. fhr pursued and whether they do not go beyond what is necessary to achieve it. It is necessary, therefore, to determine whether the intensity of the Community action taken by means of the Directive goes beyond what is necessary to achieve the objective of protecting the health and safety of workers. Again, the ECJ concludes in the case of the Working Time Directive that they do not. As any proposals for directives in the excluded sectors will not go beyond the provisions of the Working Time Directive, it seems to the Commission of principle that proportionality would also be satisfied. the for a new Green Paper "Partnership organisation of work" 13. However, the Working Time Directive already permits longer working hours than are commonly worked in practice in most Member States. Furthermore, firmly believes that minimum standards with regard to the protection of the health and safety of workers are the good functioning of the internal market. the Commission important for 87. Similar arguments apply in relation to the issue of placing burdens on firms, particularly small and medium sized firms. It is necessary to avoid excessive regulation and adding unnecessary burdens. But, while the Working Time Directive is complex, the basic provisions, as set out in paragraph 6 above, are very simple. Indeed, most of the complexity arises from the flexibility the Directive allows to Member States to cater for particular cases and national traditions. With regard 88. to respect of the principle of subsidiarity, the Commission now has the benefit of the Judgment of the European Court of Justice in the application by the United Kingdom for annulment of the Working Time Directive. In this Judgment t 4, the Court notes that "once the Council has found that it is necessary to improve the existing level of protection as regards the health and safety of workers and to harmonise the conditions in this area while maintaining improvements made, achievement of that objective through the imposition of minimum requirements necessarily presupposes Community-wide action". There is, in fact, no objective difference, in terms of subsidiarity, between the sectors excluded from the Working Time Directive and those included. It has to be concluded therefore that there can be no the 13 Com (97) 128 14. Judgment of the Court, 12 November 1996 in Case C-84/94: United Kingdom v Council of the European Union. 17 CONCLUSION In the light of the foregoing 90. considerations, the Commission considers that a pragmatic approach should he taken in order to ensure at EC level the protection or the health and safety, with regard to working time, of workers in the sectors and activities currently excluded from the Working Time Directive. this White Paper, Subject to consideration of the views 91. expressed on the Commission proposes to proceed on the basis of Option 3 (see paragraph 74). Under this option a distinction would be made between those activities which can be accommodated under the Working Time Directive and those which require specific measures. This would entail: workers. • extending the full provisions of the Working Time Directive to all non mobile Appropriate adjustment of the existing derogations would be made to take account notably of the need for continuity of service and other operational requirements; • extending to all mobile workers and those engaged in "other work at sea" the the Working Time prov1s10ns of Directive on 4 weeks' paid annual leave and health assessments for night workers; and providing a guarantee of adequate rest and for a maximum number of hours to be worked annually; • or modifying specific introducing legislation for each sector or activity concerning the working time and rest periods of mobile workers and those engaged in "other work at sea". to such With regard 92. sectoral measures, the Commission hopes that it will be possible to proceed on the basis of agreement between the social partners. With regard to possible specific measures in respect of sea fishing (if the discussions on a common policy do not succeed) and other work at sea, the Commission would welcome views from employers and trade in the sea-fishing and off-shore unions sectors as to whether they would wish arrangcmcnll;) similar for sea transport (sec paragraphs 4 7 - 51 ahovc) to apply in their industry. those to In its Communication concerning 93. the application of the Agreement on social policy,t5 the Commission stated that it would follow the consultation procedures set out in that Communication on all measures with major social implications, irrespective of the legal base of the proposal. Therefore the Commission is sending this White Paper to the social partners for consultation. The Commission will, of course, subsequently consult management and labour on the content of any proposal envisaged. 94. also The Commission would welcome views from other recipients of this the course of action White Paper on proposed. Any comments should be sent (rcforence V /02 - WP) by 31 October 1997 to: European Commission DGV/02 rue de la Loi I Wetstraat 200 I 049 Brussels 95. e-mail to: Comments can also be sent by dg5-workingtime@bxl. dg5. cec. be After that date, the Commission 96. will adopt its final position with due regard to all the views of the social partners and other recipients of the White Paper. ·niis document is accessible at the following address: internet http://europa. eu. inti The DGV homepage following path: Welcome, Policies, Employment and Social Policies, on which page there is a link to DGV. is accessible through the 15 Com(93) 600 18 ANNEX TOTAL EMPL0"4\fENTl. 4 Road Transport Rail Transport Inland Waterways Air Transport Sea Transport Sea Fishing Other work at sea Doctors in training Total ) 500 00017 IK 965 00019 45 00020 375 00021 1so00022 270 00()23 45 00024 27Q QQQ25 5 630 000 N. B. These are "ball-park" figures, for further explanations see sector-by sector aiJ. a1ysis in paragraphs la 17. 18 19. 20. 21. 22. 2J. 24. 25. All EU Member States Ext:Judes workers in "own account transport" which is not excluded from the Working Time Directive. Source: Road Tmnsport !n -~he European Union: Aspects of the Organ!zation and Enforcement of Work1ng and Driving Time Regulations, 1995 Source: M:iin statistical results for UlC Member Railways, 1995 Source : DGVII estimates, 1996 Source :Flight 1nternational World Airline Directory, figures for 1995 Source: TecilEcon: Study on the maritime profess1ons in the European Union, l 996 NumJer of fis}1ermen (full ar. d part-time) (all EU Memher States). Figures are for J. 993, except Greece ( l 990) and Jrcland { J 99 J ). Source: OECD, ,Vi cm her Stales S0:. :::-ce: Coshape Ltd: The Working Hours in 'Other Work at Sea' in 1he Context of Directive 931) C4/EC, 1995 Sou::ce: Permanent Working Group of European Junior Hospital Doctors, 1996 ISSN0254-1475 COM(97) 334 final DOCUMENTS EN 04 OS 06 Catalogue number CB-C0-97-401-EN-C ISBN 92-78-23326-9 Office for Official Publications of the European Communities L-2985 Luxembourg