Proposal for a Council Directive concerning the Agreement on the organisation of working time of seafarers concluded by the European Community Shipowners' Association (ECSA) and the Federation of Transport Workers' Unions in the European Union (FST) (1999/C 43/03) (Text with EEA relevance) COM(1998) 662 final - 98/0320(PRT)

(Submitted by the Commission on 24 November 1998)

THE COUNCIL OF THE EUROPEAN UNION

Having regard to the Agreement on social policy annexed to the Protocol 14 on social policy, annexed to the Treaty establishing the European Community, and in particular Article 4(2) thereof,

Having regard to the proposal from the Commission,

(1) Whereas on the basis of the Protocol on Social Policy annexed to the Treaty establishing the European Community, the Member States, with the exception of the United Kingdom of Great Britain and Northern Ireland (hereinafter referred to as 'the Member States`), wishing to continue along the path laid down in the 1989 Social Charter, have concluded an agreement on social policy;

(2) Whereas management and labour (the social partners) may, in accordance with Article 4(2) of the Agreement on social policy, request jointly that agreements at Community level be implemented by a Council Decision on a proposal from the Commission;

(3) Whereas the Council adopted Directive 93/104/EC on certain aspects of the organisation of working time; whereas sea transport was one of the sectors of activity excluded from the scope of that Directive;

(4) Whereas account should be taken of the relevant Conventions of the International Labour Organisation with regard to the organisation of working time, including in particular those relating to the hours of work of seafarers;

(5) Whereas the Commission, in accordance with Article 3(2) of the Agreement on social policy, has consulted management and labour on the possible direction of Community action with regard to the sectors and activities excluded from the Working Time Directive;

(6) Whereas the Commission, considering after such consultation that Community action was desirable, once again consulted management and labour at Community level on the substance of the envisaged proposal in accordance with Article 3(3) of the said Agreement;

(7) Whereas the European Community Shipowners' Association (ECSA) and the Federation of Transport Workers' Unions in the European Union (FST) have informed the Commission of their desire to enter into negotiations in accordance with Article 4 of the Agreement on social policy;

(8) Whereas the said organisations concluded, on 30 September 1998, an Agreement on the working time of seafarers; whereas this Agreement contains a joint request to the Commission to implement the Agreement by a Council Decision on a proposal from the Commission, in accordance with Article 4(2) of the Agreement on social policy;

(9) Whereas the Council, in its resolution of 6 December 1994 on prospects for a European Union social policy: contribution to economic and social convergence in the Union, asked management and labour to make use of the opportunities for concluding agreements, since they are close to social reality and to social problems;

(10) Whereas the Agreement applies to seafarers on board every seagoing ship, whether publicly or privately owned, which is registered in the territory of any Member State and is ordinarily engaged in commercial maritime operations;

(11) Whereas the proper instrument for implementing the Agreement is a Directive within the meaning of Article 189 of the Treaty; whereas it therefore binds the Member States as to the result to be achieved, whilst leaving national authorities the choice of form and methods;

(12) Whereas, in accordance with the principles of subsidiarity and proportionality as set out in Article 3(b) of the Treaty, the objectives of this Directive cannot be sufficiently achieved by the Member States and can therefore be better achieved by the Community; whereas this Directive does not go beyond what is necessary for the attainment of those objectives;

(13) Whereas, with regard to terms used in the Agreement which are not specifically defined therein, this Directive leaves Member States free to define those terms in accordance with national law and practice, as is the case for other social policy Directives using similar terms, providing that the said definitions respect the content of the Agreement;

(14) Whereas the Commission has drafted its proposal for a Directive, in accordance with its communication of 20 May 1998 on adapting and promoting the social dialogue at Community level, taking into account the representative status of the signatory parties and the legality of each clause of the Agreement;

(15) Whereas the Commission has drafted its proposal for a Directive in compliance with Article 2(2) of the Agreement on social policy which provides that Directives in the social policy domain 'shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings`;

(16) Whereas the Commission, in accordance with its communication of 14 December 1993 concerning the application of the Protocol 14 on social policy, informed the European Parliament by sending it the text of its proposal for a Directive containing the Agreement;

(17) Whereas the Commission also informed the Economic and Social Committee;

(18) Whereas the Agreement establishes minimum standards; whereas Member States and/or the social partners may maintain or introduce more favourable provisions;

(19) Whereas implementation of this Directive may not serve to justify any regression in relation to the situation which already exists in each Member State;

(20) Whereas the Member States may entrust the social partners, at their joint request, with the implementation of this Directive, provided that the Member States take all the necessary steps to ensure that they can at all times guarantee the results imposed by this Directive;

(21) Whereas the implementation of the Agreement contributes to achieving the objectives under Article 1 of the Agreement on Social Policy,

HAS ADOPTED THIS DIRECTIVE:

Article 1

The purpose of this Directive is to put into effect the annexed Agreement on the organisation of working time of seafarers concluded on 30 September 1998 between the organisations representing management and labour in the maritime sector (ECSA and FST).

Article 2 Minimum requirements

1. Member States may maintain or introduce more favourable provisions than those laid down in this Directive.

2. The implementation of this Directive shall under no circumstances constitute sufficient grounds for justifying a reduction in the general level of protection of workers in the fields covered by this Directive. This shall be without prejudice to the rights of Member States and/or management and labour to lay down, in the light of changing circumstances, different legislative, regulatory or contractual arrangements to those prevailing at the time of the adoption of this Directive, provided always that the minimum requirements laid down in this Directive are adhered to.

Article 3 Penalties

Member States shall determine the range of penalties applicable for infringements of national provisions made in implementation of this Directive and shall take all necessary steps to ensure that they are enforced. The penalties must be effective, commensurate with the infringement, and must constitute a sufficient deterrent. Member States shall notify these provisions to the Commission by the date mentioned in Article 4 at the latest, and any subsequent amendment thereto in good time.

Article 4 Transposition

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 June 2001, or shall ensure that, by that date at the latest, management and labour have introduced the necessary measures by agreement, the Member States being required to take any necessary measure to enable them at any time to be in a position to guarantee the results imposed by this Directive. They shall forthwith inform the Commission thereof.

2. When Member States adopt the provisions referred to in the first paragraph, these shall contain reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by the Member States.

Article 5 Addressees

This Directive is addressed to the Member States.

ANNEX

EUROPEAN AGREEMENT ON THE ORGANISATION OF WORKING TIME OF SEAFARERS

Having regard to the Agreement on social policy annexed to the Protocol on social policy attached to the Treaty establishing the European Community and in particular Article 3(4) and 4(2) thereof,

Whereas Article 4(2) of the Agreement on social policy provides that agreements concluded at European level may be implemented at the joint request of the signatory parties by a Council Decision on a proposal from the Commission;

Whereas the signatory parties hereby make such a request;

The signatory parties have agreed the following:

Clause 1

1. The Agreement applies to seafarers on board every seagoing ship, whether publicly or privately owned, which is registered in the territory of any Member State and is ordinarily engaged in commercial maritime operations. For the purpose of this Agreement a ship that is on the register of two States is deemed to be registered in the territory of the State whose flag it flies.

2. In the event of doubt as to whether or not any ships are to be regarded as seagoing ships or engaged in commercial maritime operations for the purpose of the Agreement, the question shall be determined by the competent authority of the Member State. The organisations of shipowners and seafarers concerned should be consulted.

Clause 2

For the purpose of the Agreement:

(a) the term 'hours of work`: means time during which a seafarer is required to do work on account of the ship

(b) the term 'hours of rest`: means the time outside hours of work; this term does not include short breaks

(c) the term 'seafarer`: means any person who is employed or engaged in any capacity on board a seagoing ship to which the Agreement applies;

(d) the term 'shipowner`: means the owner of the ship or any other organisation or person, such as the manager or bareboat charterer, who has assumed the responsibility for the operation of the ship from the shipowner and who on assuming such responsibility has agreed to take over all the attendant duties and responsibilities.

Clause 3

Within the limits set out in Clause 5, there shall be fixed either a maximum number of hours of work which shall not be exceeded in a given period of time, or a minimum number of hours of rest which shall be provided in a given period of time.

Clause 4

Without prejudice to Clause 5, the normal working hours' standard of seafarers is, in principle, based on an eight-hour day with one day of rest per week and rest on public holidays. Member States may have procedures to authorise or register a collective agreement which determines seafarers' normal working hours on a basis no less favourable than this standard.

Clause 5

1. The limits on hours of work or rest shall be either:

(a) maximum hours of work which shall not exceed

(i) 14 hours in any 24-hour period; and

(ii) 72 hours in any seven-day period

or

(b) minimum hours of rest which shall not be less than:

(i) 10 hours in any 24-hour period; and

(ii) 77 hours in any seven-day period.

2. Hours of rest may be divided into no more than two periods, one of which shall be at least six hours in length and the interval between consecutive periods of rest shall not exceed 14 hours.

3. Musters, fire-fighting and lifeboat drills, and drills prescribed by national laws and regulations and by international instruments shall be conducted in a manner that minimises the disturbance of rest periods and does not induce fatigue.

4. In respect of situations when a seafarer is on call, such as when a machinery space is unattended, the seafarer shall have an adequate compensatory rest period if the normal period of rest is disturbed by call-outs to work.

5. With regard to paragraphs 3 and 4, where no collective agreement or arbitration award exists or if the competent authority determines that the provisions in the agreement or award are inadequate, it would be for the competent authority to determine such provisions to ensure that the seafarers concerned have sufficient rest.

6. With due regard for the general principles of the protection of the health and safety of workers, Member States may have national laws, regulations or a procedure for the competent authority to authorise or register collective agreements permitting exceptions to the limits set out in paragraphs 1 and 2. Such exceptions shall, as far as possible, follow the standards set out but may take account of more frequent or longer leave periods, or the granting of compensatory leave for watchkeeping seafarers or seafarers working on board ship on short voyages.

7. A table shall be posted, in an easily accessible place, with the shipboard working arrangements, which shall contain for every position at least:

(a) the schedule of service at sea and service in port; and

(b) the maximum hours of work or the minimum hours of rest required by the laws, regulations or collective agreements in force in the Member States.

8. The table referred to in paragraph 7 shall be established in a standardised format in the working language or languages of the ship and in English.

Clause 6

No seafarer under 18 years of age shall work at night. For the purpose of this Clause; 'night` means a period of at least nine consecutive hours, including the interval from midnight to 5 a. m. This provision need not be applied when the effective training of young seafarers between the ages of 16 and 18 in accordance with established programmes and schedules would be impaired.

Clause 7

1. The master of a ship shall have the right to require a seafarer to perform any hours of work necessary for the immediate safety of the ship, persons on board or cargo, or for the purpose of giving assistance to other ship or persons in distress at sea.

2. In accordance with paragraph 1, the master may suspend the schedule of hours of work or hours of rest and require a seafarer to perform any hours of work necessary until the normal situation has been restored.

3. As soon as practicable after the normal situation has been restored, the master shall ensure that any seafarers who have performed work in a scheduled rest period are provided with an adequate period of rest.

Clause 8

1. Records of seafarers' daily hours of work or of their daily hours of rest shall be maintained to allow monitoring of compliance with the provisions set out in Clause 5. The seafarer shall receive a copy of the records pertaining to him or her which shall be endorsed by the master, or a person authorised by the master, and by the seafarer.

2. Procedures shall be determined for keeping such records on board, including the intervals at which the information shall be recorded. The format of the records of the seafarers' hours of work or of their hours of rest shall be established taking into account any available international guidelines. The format shall be established in the language or languages provided by Clause 5, paragraph 8.

3. A copy of the relevant provisions of the national legislation pertaining to this Agreement and the relevant collective agreements shall be kept on board and be easily accessible to the crew.

Clause 9

The records referred to in Clause 8, shall be examined and endorsed at appropriate intervals, to monitor compliance with the provisions governing hours of work or hours of rest that give effect to this Agreement.

Clause 10

1. When determining, approving or revising manning levels, it is necessary to take into account the need to avoid or minimise, as far as practicable, excessive hours of work, to ensure sufficient rest and to limit fatigue.

2. If the records or other evidence indicate infringement of provisions governing hours of work or hours of rest, measures, including if necessary the revision of the manning of the ship, shall be taken so as to avoid future infringements.

3. All ships to which this Agreement applies shall be sufficiently, safely and efficiently manned, in accordance with the minimum safe manning document or an equivalent issued by the competent authority.

Clause 11

No person under 16 years of age shall work on a ship.

Clause 12

The shipowner shall provide the master with the necessary resources for the purpose of compliance with obligations under this Agreement, including those relating to the appropriate manning of the ship. The master shall take all necessary steps to ensure that the requirements on seafarers' hours of work and rest arising from this Agreement are complied with.

Clause 13

1. All seafarers shall possess a certificate attesting to their fitness for the work for which they are to be employed at sea.

The nature of the health assessment to be made and the particulars to be included in the medical certificate shall be established after consultation with the shipowners' and seafarers' organisations concerned.

All seafarers shall have regular health assessments. Watchkeepers suffering from health problems certified by a medical practitioner as being due to the fact that they perform night work shall be transferred, wherever possible, to day work to which they are suited.

2. The health assessment referred to in paragraph 1 shall be free and comply with medical confidentiality. Such health assessments may be conducted within the national health system.

Clause 14

Shipowners shall provide information on watchkeepers and other night workers to the national competent authority if they so request.

Clause 15

Seafarers shall have safety and health protection appropriate to the nature of their work. Equivalent protection and prevention services or facilities with regard to the safety and health of seafarers working by day or by night shall be available.

Clause 16

Every seafarer shall be entitled to paid annual leave of at least four weeks, or a proportion thereof for periods of employment of less than one year, in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and or/practice.

The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

Done at Brussels, 30 September 1998.

Federation of Transport Workers' Unions in the European Union (FST)

European Community Shipowners' Association (ECSA)