Proposal for a Council Directive concerning the organisation of working time for mobile workers performing road transport activities and for self-employed drivers (1999/C 43/02) (Text with EEA relevance) COM(1998) 662 final - 98/0319(SYN)

(Submitted by the Commission on 24 November 1998)

THE COUNCIL OF THE EUROPEAN UNION

Having regard to the Treaty establishing the European Community, and in particular Articles 75 and 118a thereof,

Having regard to the proposal from the Commission,

In cooperation with the European Parliament,

Having regard to the opinion of the Economic and Social Committee,

Whereas Article 75 of the Treaty provides that the Council shall adopt, amongst other things, common rules applicable to road transport as well as measures designed to improve road safety; whereas this Article provided the proper legal base in particular for the adoption of common rules concerning working time for self-employed drivers in road transport;

Whereas Article 118a of the Treaty provides that the Council shall adopt by means of Directives, minimum requirements for encouraging improvements, especially in the working environment, to ensure a better level of protection of the safety and health of workers;

Whereas Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (1) has laid down common rules on driving times and rest periods for drivers; whereas this Regulation does not cover other aspects of working time for road transport;

Whereas Council Directive 93/104/EC of 23 November 1993 concerning aspects of the organisation of working time (2) has laid down minimum safety and health requirements for the organisation of working time applicable to all sectors of activity, both public and private with the exception of air, rail, road, sea, inland waterway and lake transport amongst others;

Whereas the Council recognised in the preamble to that Directive that it may be necessary to adopt separate measures with regard to the organisation of working time in certain sectors and activities which are excluded from the scope of the Directive;

Whereas it is therefore necessary in order to ensure improved road safety, to avoid distortion of competition, and to promote enhanced working conditions for road transport activities, that all mobile workers performing road transport activities and self-employed drivers should operate under a set of minimum standards on working time;

Whereas the provisions in this Directive are more specific to road transport than certain provisions in Directive 93/104/EC as amended and hence under Article 14 of the latter Directive these provisions take precedence;

Whereas, in order to improve road safety, to avoid distortion of competition and to ensure the safety and health of these mobile workers and self-employed drivers, they must be granted minimum daily and weekly periods of rest, and adequate breaks; whereas it is also necessary to place a maximum limit on weekly working hours;

Whereas it is necessary to indicate that the provisions relating to rest periods and breaks within Council Regulation (EEC) No 3820/85 on the harmonisation of certain social legislation relating to road transport continue to apply to certain mobile workers and self-employed drivers;

Whereas the above Regulation's provisions on driving time are supplemented by the working time provisions of this Directive;

Whereas, in spite of intensive negotiations between the social partners, an agreement has not been possible in respect of mobile workers in road transport, to be put into effect by means of a Council Decision on a proposal from the Commission, in accordance with Article 4(2) of the Agreement on Social Policy;

Whereas Directive . . ./. . ./EC amends Directive 93/104/EC to ensure its application to non-mobile workers in the sectors and activities currently excluded, and to provide basic protection to mobile workers performing road transport activities; whereas this basic protection includes the existing rules an annual leave and certain basic provisions for night workers including health assessment;

Whereas research has shown that the human body is more sensitive at night to environmental disturbances and also to certain burdensome forms of organisation and that long periods of night work can be detrimental to the health of workers and can endanger their safety and also road safety in general;

Whereas as a consequence there is a need to limit the duration of periods of night work, including overtime, and to ensure records of working time are kept by employers for night workers and for mobile workers exceeding the 48-hour average weekly maximum;

Whereas night workers should receive appropriate compensation for their activity and should not be disadvantaged as regards training and promotion opportunities;

Whereas Regulation (EEC) No 3820/85 permits drivers covered by Article 6(4) and (5) a driving time of up to 65 hours per week; whereas the driver's weekly working time is limited to 60 hours per week according to Article 3 of this Directive; whereas the drivers covered by Article 6(4) and (5) of cited Regulation (EEC) No 3820/85 will have to be able to continue driving up to 65 hours, provided that the average maximum weekly working time of 48 hours over four months is not exceeded;

Whereas the Commission should monitor the implementation of this Directive and developments in this fields in the Member States and submit to the Council, the European Parliament and the Economic and Social Committee a report on the application of the rules;

Whereas it is necessary to provide that certain provisions may be subject to derogations implemented, according to the case, by the Member States or the two sides of industry; whereas as a general rule, in the event of a derogation, the workers concerned must be given equivalent compensatory rest periods;

Whereas, in accordance with the principles of subsidiarity and proportionality as set out in Article 3b of the Treaty, the objectives of the proposed action as outlined above cannot be adequately achieved by the Member States, in that the objective is to ensure that all workers in the Community enjoy adequate protection of their health and safety, with regard to working time; whereas, in view of the scale and impact of the proposed action, these objectives can best be achieved at Community level by the introduction of minimum provisions applicable to the entire European Community; whereas the present Directive constitutes no more than the minimum necessary to achieve these objectives,

HAS ADOPTED THIS DIRECTIVE:

Article 1 Purpose and scope

1. The purpose of this Directive is to establish minimum health and safety standards in relation to the organisation of working time in road transport and to improve road safety.

2. This Directive applies to all mobile workers performing road transport activities employed by undertakings established in a Member State and to self-employed drivers established in a Member State.

3. This Directive contains more specific Community provisions as regards mobile workers performing road transport activities and therefore, pursuant to Article 14 of Directive 93/104/EC, the former's provisions take precedence over the relevant provisions of Directive 93/104/EC as amended by Directive . . ./. . ./EC.

4. This Directive applies without prejudice to the provisions of Regulation (EEC) No 3820/85.

Article 2 Definitions

For the purposes of this Directive:

1. Working time means:

(a) in the case of self-employed drivers, the time during which they carry out the following activities:

(i) driving

(ii) loading and unloading

(iii) supervising passengers getting in/out of the bus/coach

(iv) cleaning of the vehicle

(v) security inspection of the vehicle and the load

(vi) other work to ensure the safety of the vehicle, the load or the passengers

(vii) technical maintenance of the vehicle

(b) in the case of mobile workers, the time from the beginning to the end of work, that is all activities or standby duty, excluding breaks.

Activities include, in particular:

(i) driving

(ii) loading and unloading

(iii) supervising passengers getting in/out of the bus/coach

(iv) cleaning of the vehicle

(v) security inspection of the vehicle and the load

(vi) other work to ensure the safety of the vehicle, the load or the passengers

(vii) technical maintenance of the vehicle

(viii) administrative work

2. Standby duty means the time during which the mobile worker is at his place of work, ready to take up full working duties, where appropriate on his own initiative, and generally with certain tasks associated with being on duty.

Standby period means the time during which the mobile worker has no duties, while available for taking up work. Standby periods must be known in advance by the mobile worker in accordance with the conditions agreed between social partners at the level and under the terms provided in the legislation of the Member States.

Without prejudice to the legislation of the Member States or agreements between social partners requiring such periods to be compensated or limited, stand-by periods shall not be considered as working time within the meaning of Articles 3 and 6 of this Directive.

3. Mobile workers are all those workers, including trainees and apprentices, who are employed by an undertaking, perform road transport activities and form part of the travelling personnel.

4. Rest period means any uninterrupted period of at least one hour during which the mobile worker or self-employed drive may freely dispose of this time.

5. Week means the period between 0.00 hours on Monday and 24.00 hours on Sunday.

6. Night time means a period of at least seven hours, as defined by national law, and in any case encompassing the period between midnight and 5 a. m.

7. Night work means work during a period of work which includes more than two hours of night time.

8. Night workers means mobile workers or self-employed drivers who:

(i) usually perform night work on rotating shifts because of their work schedule, or

(ii) perform a certain proportion of their annual working time during night time. This proportion shall be defined by the legislation of the Member States in consultation with the social partners.

Article 3 Maximum weekly working time

Member States shall take the measures necessary to ensure that:

1. the average weekly working time may not exceed 48 hours. The maximum weekly working time can be extended to 60 hours only if within four months an average of 48 hours per week is not exceeded. This is without prejudice to Article 6(4) and (5) of Regulation (EEC) No 3820/85, provided that the self-employed drivers and mobile workers concerned do not exceed the average maximum weekly working time of 48 hours over four months.

2. for mobile workers, working time for different employers is the sum of the working hours. The mobile worker shall inform the employer concerned in writing of working time performed for another employer.

Article 4 Breaks

Member States shall take the measures necessary to ensure that, without prejudice to the level of protection provided by Regulation (EEC) No 3820/85 on the harmonisation of certain social legislation relating to road transport, mobile workers shall in no circumstances be employed and self-employed drivers shall in no circumstances carry out the activities referred to in Article 2(1) for more than six consecutive hours without a break. Working time shall be interrupted by breaks of at least 30 minutes, if working hours total between six and nine hours, and of at least 45 minutes, if working hours total more than nine hours. The breaks referred to in the first sentence may be divided up into periods of at least 15 minutes.

Article 5 Rest periods

1. Those self-employed drivers and mobile workers subject to Regulation (EEC) No 3820/85 shall have the rest periods provided therein.

2. Member States shall take the measures necessary to ensure that self-employed drivers and mobile workers other than those referred to in paragraph 1 have an uninterrupted period of rest at the end of their daily work of at least 11 hours.

3. The duration of the period of rest referred to in paragraph 2 may be reduced by up to one hour, if each such reduction is compensated either within the following calendar month or within four weeks by the extension of another rest period to at least 12 hours.

4. Member States shall take the measures necessary to ensure that for self-employed drivers and mobile workers other than those referred to in paragraph 1, after no more than six consecutive daily working periods, the period of rest in paragraph 2 shall be extended by 24 consecutive hours to form a period of weekly rest.

Article 6 Night workers

Member States shall take the measures necessary to ensure that:

1. the daily working time of a night worker may not exceed eight hours. It may be extended to 10 hours only if an average of eight hours a day is not exceeded within two months; for periods in which night workers are not requested to perform night work, Article 3 shall apply

2. compensation for night work shall be given in accordance with the national legislative measures, collective agreements and/or national practice, but such compensation is permitted only on condition that it is of such a kind as not to endanger road safety and

3. those mobile workers who are night workers shall have the same access to further training and opportunities for promotion as other workers.

Article 7 Derogations

1. Derogations from Articles 3, 5 and 6 may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agreements between the two sides of industry, provided that the workers concerned are afforded equivalent periods of compensatory rest.

2. The option to derogate from Article 3 may not result in the establishment of a reference period exceeding six months, for the average maximum weekly working time of 48 hours. In addition, Member States may allow derogations from Article 3 provided that the maximum average weekly working time is reduced as follows:

- to 39 hours on average, over reference period of up to 9 months, and

- to 35 hours on average, over a reference period of up to 12 months.

3. For regular passenger transport services over distances of less than 50 kilometres, breaks or layover time may be split into periods of less than 15 minutes duration.

Article 8 Information and records

1. Member States shall take the measures necessary to ensure that the employer of mobile workers takes the following action:

(a) the employer shall post or display in an appropriate place in the undertaking's premises, a copy of this Directive, of the relevant national rules and statutory orders and of the collective agreements and company agreements, if applicable, made on the basis of this Directive; and

(b) the employer shall record the working time of mobile workers who do more than 48 hours of work per week or, for night workers, more than eight hours work per day. These records shall be kept for at least two years.

2. Member States shall take measures necessary to ensure that the self-employed driver shall maintain a record of his working time when he does more than 48 hours of work per week or, if he is a night worker, more than eight hours work per day. These records shall be kept for at least two years.

Article 9 More favourable provisions

This Directive shall not affect Member States' rights to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the health and safety of mobile workers or self-employed drivers, or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the health and safety of mobile workers.

Article 10 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 11(1) at the latest, and any subsequent amendment thereto in good time.

Article 11 Final provisions

1. Member States shall adopt the laws, regulations ad administrative provisions necessary to comply with this Directive by (two years after entry into force) or shall ensure by that date that the two sides of industry establish the necessary measures by agreement, with Member States being obliged to take any necessary steps to enable them to guarantee at all times that the provisions laid down by this Directive are fulfilled.

2. When Member States adopt the measures referred to in paragraph 1, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.

3. Without prejudice to the right of Member States to develop, in the light of changing circumstances, different legislative, regulatory or contractual provisions in the field of working time, as long as the minimum requirements provided for in this Directive are complied with, implementation of this Directive shall not constitute valid grounds for reducing the general level of protection afforded to mobile workers and self-employed drivers.

4. Member States shall report to the Commission every two years on the implementation of this Directive indicating the viewpoints of the two sides of industry. The information must reach the Commission no later than 30 September following the date on which the two-year period covered by the report expires. The two-year period shall be the same as that referred to in Article 16(2) of Council Regulation (EEC No 3820/85.

5. The Commission shall produce a report every two years on the implementation of this Directive by Member States and developments in the field in question. The Commission shall forward this report to the Council, the European Parliament and the Economic and Social Committee.

6. Member States shall communicate to the Commission the texts of the provisions of national law already adopted or being adopted in the field governed by this Directive.

Article 12

This Directive is addressed to the Member States.

(1) OJ L 370, 13.12.1985, p. 1.

(2) OJ L 307, 13.12.1993, p. 18.