Re-examined proposal for a COUNCIL DIRECTIVE concerning certain aspects of the organization of working time
Date: 1993-11-16
Institutions: European Commission
Subjects: arrangement of working time, humanisation of work, occupational safety, organisation of work, working time

COMMISSION  OF  THE  EUROPEAN  COMV1UNITIES 

COM(93) 578 final  - SYN 295 

Brussels,  16 November  1993 

BHS':K~s*  4B*"ftii  Uiffl. 

Re-exaniiiicd  proposal  for a 

COUNCIL  DIRECTIVE 

concerning  certain  aspects  of  the  organization  of  working  time 

(presented  by  the  Commission  pursuant  to  Article  I89c,  paragraph  d 
of  the  EC  Treaty) 

Explanatory  memorandum 

Introduction 

The  initial  proposal  for  this  Directive  was  presented  by  the  Commission  on  20  September 
19901.  It  seeks to  establish  basic  provisions  with  regard  to  certain  aspects  of  the  organization 
of  working  time. 

The  European  Parliament  (at  the  first  reading)  and  the  Economic  and  Social  Committee  gave 
their  opinions  on  20  February  1991  and  18  December  1990  respectively. 

The  Commission  forwarded  an  amended  proposal2  to  Council  on  23  April  1991. 

On  30  June  1993  the  Council  adopted  a  Common  Position 
incorporating  amendments 
introduced  in  the amended  proposal  from  the Commission  and,  as  a  result,  some  amendments 
proposed  by  the  European  Parliament  at  the  first  reading.  The  Common  Position  contained 
a  significant  number  of  other  changes  compared  with  the  amended  proposal. 

The  European  Parliament  examined  the Common  Position  at  a  second  reading  on  27  October 
1993  and  approved  it  subject  to  19  proposed  amendments. 

Amendments  taken  into  account 

Of  the  19 amendments,  the  Commission  agreed  to  take  account  of  9,  either  wholly  or  partly, 
in  the  reexamined  proposal.  These  are  as  follows: 

New  recital  8A 
Amendments  No  I  and  20 
The  Commission's  proposed  new  recital  draws  attention  to  the  need  to  respect  the  principles 
of  the  International  Labour  Organisation,  especially  with  regard  to  night  work. 

Ninth  recital 
Amendment  No  2 
This  amendment  clarifies  the  recital  about  the  need  to  take  due  account  of  the  diversity  of 
cultural,  ethnic,  religious  and  other  factors  in determining  whether  Sunday  should  be  included 
in  the  weekly  rest  period. 

New  recital  14A 
Amendment  No  3 
The  amendment  proposed  the  deletion  of  "doctors  in  training"  from  the  exclusions  from  the 
scope  of  the  Directive  and  an  obligation  on  the  Council  to  adopt  Directives  on  the  excluded 
sectors  within  3  years. 

The  Commission's  proposed  new  recital  accepts  the  exclusion  of  certain  sectors  and  activities 
from  the  scope  of  the  Directive,  but  states  explicitly  that  the Commission  will  take  initiatives 
to  ensure  the  application  of  the  principles  of  this  Directive  to  those  sectors  and  activities 

COM  (90)  317  final 
COM  (91)  HO  final 

3 

Article  16 
Amendment  No  9 
The  first  part  of  the  amendment  proposed  reduction  of  the  reference  period,  for  calculation 
of  the  average  of 48  hours  a week,  from  four  to  three  months.  This  was  not  accepted  because 
it  was  an  essential  element  of  the  Council  system  allowing  for  the  introduction  of  the 
maximum  48  hour  a  week  on  average  -  see  also  amendment  number  14  below. 
The  Commission's  amendment  to  Article  16  (based  on  the  second  part  of  Parliament's 
amendment)  makes  clear  that  periods  of  annual  leave  and  sick  leave  are  not  to  be  included 
in  the  calculation  of  the  average. 

Article  17.2(a) 
Amendment  No  11 
This  improves  the  drafting  of  the  derogation  in  respect  of  people  working  away  from  their 
normal  place  of  work. 

Article  17.2.Uc¥iin 
Amendment  No  12 
This  makes  clear  that  film  production  is  included  in  the  list  of  possibilities  for  derogation 
under  the  heading  of  "activities  involving  the  need  for  continuity  of  service  or  production". 

Article  18.2A  (new) 
Amendment  No  27 
The Commission  wishes to draw the Council's  attention  to the importance  which  the  European 
Parliament  attached  to  the  introduction  of  a  "non-regression"  clause  in  an  Article  of  the 
Directive.  The  Commission  considers  that  the  proposed  new  text  represents  a  reasonable 
compromise  between  the  Parliament's  amendment  and  the  Common  Position  of  the  Council. 

Article  18.4 
Amendment  No  22 
This  called  for  reports  to  be  made  by  the  Commission  on  the  application  of  this  Directive 
every  3  years  (Article  18.5).  While  accepting  the  need  for  the  frequency  of  these  reports  to 
be  specified,  the Commission  proposes  5 years, which  would  be consistent  with  the  frequency 
at  which  Member  States  are  required  to  report  to  the  Commission. 

Amendments  not  accepted 

The  Commission  declined  to  take  account  of  10  amendments,  namely  numbers  5,  7,  8,  13, 
14,  15,  16,  17,  18  and  19. 

The  Commission  wishes  to  make  the  following  points  regarding  the  amendments  which  it 
rejected: 

Amendment  No  5 
Deletion  of  reference  to  possibility  of  24  hours'  weekly  rest  (instead  of  35)  if  objective, 
technical  or  work  organisation  conditions  so justify  (Article  5). 
Comment 
This  provision  was  introduced  into  the  Common  Position  in  order  to  cover  the  problem  of 
shift  workers  working  the  late  shift  on  Saturday  and  the  early  shift  on  Monday 

Amendment  No  7 
In  Article  9.1(b)  concerning  the  transfer  of  workers  to  day  work  when  they  are  unable  to 
work  at  night,  the  words  "whenever  possible"  would  be  replaced  by  "as  soon  as  possible". 
Comment 
The  Commission  accepts  the  Council's  view  that  there  may,  occasionally,  be  circumstances 
in  which  transfer  to  day  work  may  not  be  possible. 

Amendment  No  8 
Reinsertion  of  amended  Commission  proposal  on  consultation  and  participation  of  workers 
in  accordance  with  Article  11 of Directive  89/391/EEC; deletion  of  words  "if they  so  request" 
(Article  11). 
Comment 
The  Commission  accepts  the  Council's  view  that  this  provision  is  superfluous,  in  view  of 
Article  1.4  of the  Common  Position  which  states  that  the  provisions  of  Directive  89/39 l/EEC 
are  fully  applicable;  the  words  "if  they  so  request"  were  inserted  to  avoid  unnecessary 
bureaucratic  procedures. 

Amendment  No  13 
Addition  of  reference  in  Article  17.3  second  sub-paragraph  (derogations)  to  consultation 
between  two  sides  of  industry  at  national  or  regional  level. 
Comment 
The  formulation 
in  the  Common  Position  reflects  the  current  practice  with  regard  to 
agreements  between  employers  and  workers  in  some  Member  States.  The  amendment  would 
have  required  changes  in  their  industrial  relations  systems. 

Amendment  No  14 
Possibility  of  extension  of  reference  period  for  calculation  of  the  average  of  48  hours  a  week 
to  be  reduced  from  6  to  4  months  (Article  17.4) 
( Comment 
This  was  an  essential  element  of  the  Council  system  allowing  for  the  introduction  of  the 
provision  for  a  maximum  48  hour  week  on  average.  The  Commission  maintains  its  support 
for  this  system. 

Amendment  No  15 
Introduction  of  adequate  inspection  systems  (New  Article  17A) 
Comment 
There is  a general  obligation  on  Member  States to ensure that  Directives  are  correctly  applied. 
The  Commission  rejected  a  similar  amendment  following  the  first  reading. 

Amendment  No  16 
Reduction  of  implementation  period  from  3  years  after  adoption  to  two  years  (Article  18). 
Comment 
This  complex  Directive  will  require  major  changes  to  legislation  in  some  Member  States. 

Amendment  No  17  and  19 
The  option  not  lo  apply  Article  (> (maximum  IS  hour  week)  undei  certain  conditions  would 
end  automatically  after  live  years  without  possibility  of  I'sk'iision 
( 
See  comment  on  Amendment  No  14 

'omnwnf 

the  workers  concerned  or 

to  voluntary  overtime  can  be  given  by 

Amendment  No  18 
Agreement 
representatives  at  company  level. 
Comment 
While  declining  to  make  an  amendment  to  the  text,  the  Commission  wishes  to  make  clear  to 
the  Council  that  it  considers  that,  where  a  Member  State  uses  the  option  set  out  in  Article 
18.1(b)(i),  workers'  representatives  should  be  consulted,  where  they  exist,  before  agreement 
is reached  for  a  worker  to  work  more  than  48  hours  a week  on  average;  it  also  considers  that 
such  a  Member  State  will  have  to  ensure  that  any  individual  who  believes  he  has  been 
subjected  to any  detriment,  because  he was  not  willing  to give  his agreement  to  perform  such 
work,  will  be  able  to  seek  redress  through  the  judicial  procedure  in  place  in  that  Member 
State  with  regard  to  individual  employment  rights. 

their 

Re-examined  proposal  for  a 

Council  Directive 

concerning  certain  aspects  of  the  organization  of  working  time 

6 

PREVIOUS  TEXT 

AMENDED  TEXT 

Citations  and  Recitals  1 to  8 

Unchanged 

Recital  8A  (new) 

Whereas  it  is  appropriate  that  Member 
States  take  full  account  of  the  principles 
of  the  International  Labour  Organisation 
with  regard  to the organisation  of  working 
time,  including  those  relating  to  night 
work: 

Recital  9 

Whereas,  with  respect  to  the  weekly  rest 
period,  due account  should  be taken  of  the 
diversity  of  cultural,  ethnic,  religious  and 
other  factors  prevailing  in  the  Member 
is 
States;  whereas, 
to 
ultimately 
decide  whether 
be 
included  in  the  weekly  rest  period,  and  if 
so  to  what  extent, 

it 
for  each  Member  State 

in  particular, 

Sunday 

should 

Whereas,  with  respect  to  the  weekly  rest 
period,  due  account  should  be taken  of  the 
diversity  of  cultural,  ethnic,  religious  and 
the  Member 
other  factors  existing 
is 
States,  whereas, 
to 
ultimately 
decide  whether 
be 
included  in  the  weekly  rest  period,  and  if 
so  to  what  extent; 

it 
for  each  Member  State 

in 
in  particular, 

Sunday 

should 

Recitals  10  to  14 

Unchanged 

Recital  14A  (new) 

Whereas,  because  of  the specific  nature  of 
the  work,  it  will  be  necessary  to  take 
to 
separate  measures  with 
the 
organisation  of'working  time 
in  certain 
the 
sectors 
Com miss i on  will  take initiatives  in  respect 
of  each  o f. the  sectors  ancL  activities 
excluded  from  this  Directive: 

activities,  whereas 

regard 

or 

Recitals  15  to  17 

Articles  I  to  15 

Article  16 

Reference  periods 

Member  States  may  lay  down: 

1)  for 

the  application  of  Article  5 
reference 

rest  period),  a 

(weekly 
period  not  exceeding  15  days; 

Unchanged 

Unchanged 

Unchanged 

2)  for 

the  application  of  Article  o 
(maximum  weekly  working  lime),  a 
reference  period  not  exceeding  four 
months; 

2)  for 

the  application  of  Article  (> 
(maximum  weekly  working  time),  a 
reference  period  not  exceeding  four 
months; 

periods  of  paid  annual  leave  granted  in 
accordance  with  Article  7  and  periods 
of  sick  leave  shall  not  be  included  in 
the  calculation  of  the  average: 

Unchanged 

3)  for  the  application  of  Article  8  (length 
of  night  work),  a  reference  period 
defined  after  consultation  of  the  two 
sides  of 
industry  or  by  collective 
agreements  or  agreements  concluded 
between  the  two  sides  of  industry  at 
national  or  regional  level 

If  the  minimum  weekly  rest  period  of 
24  hours  required  by  Article  5  falls 
within  that  reference  period,  it  shall 
not  be  included  in  the  calculation  of 
the  average. 

Article  17 

Derogations 

Paragraph  I 

Unchanued 

S 

Unchanged 

Paragraph  2 

or 

regulations 

Derogations  may  be  adopted  by  means  of 
laws, 
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  or  that,  in 
exceptional  cases 
is  not 
possible,  for  objective  reasons,  to  grant 
such  equivalent  periods  of  compensatory 
rest,  the  workers  concerned  are  afforded 
appropriate  protection: 

in  which 

it 

2.1.  from  Articles  3,  4,  5,  8  and  16: 

2.1.  from  Articles  3,  4,  5,  8  and  16: 

(a)  in  the  case  of  activities  where  the 
worker's  place  of  work  and  his  place 
of  residence  are  distant  from  one 
another. 

(a) 

in  the  case  of  activities  where  there 
is  a  considerable  distance  between 
the  worker's  usual  place  of  work  and 
the  place  where  he  is  required 
to 
work  or.  where  there  is  no  usual 
place  of  work,  between  different 
workplaces: 

(b)  in 

the 

case 

of 

surveillance  activities 
permanent  presence 
protect 
particularly 
caretakers  or  security  firms, 

property 

security 

and 

security 

in  order 

and 
requiring  a 
to 
persons, 
and 

guards 

(c) 

in  the  case  of  activities  involving  the 
for  continuity  of  seivice  oi 
need 
production,  particularly: 

(i) 

to 

services 
the 
relating 
reception,  treatment  and /or  care 
provided  by  hospitals  or  similar 
establishments, 
residential 
institutions  and  prisons; 

Unchanged 

I huhaiu'.ed 

Unchanged 

(ii)  dock  or  airport  workers, 

Unchanged 

(iii)  press,  radio,  television,  postal 

t e I e c o m m u n i c a t i o n s 

a n d 
services,  ambulance, 
civil  protection  services. 

fire  and 

(iii)  press, 

radio, 

television, 
p o s t al 

fi[m 
an  d 
p r otl  ye  t i o n , 
t e l e c o m m u n i c a t i o ns 
services, 
ambulance,  lue  and  civil  piotection 
sei vices 

and 

(iv)  gas,  water 
production, 
distribution,  household 
collection 
plants, 

electricity 
and 
refuse 
incineration 

transmission 

and 

Unchanged 

(v) 

industries  in  which  work  cannot 
technical 
be 
grounds; 

interrupted  on 

Unchanged 

(vi)  research 

and 

development 

Unchanged 

activities; 

(vii)  agriculture, 

(d)  where  there  is  a  foreseeable  surge  of 

activity,  particularly  in: 

(i) 

agriculture; 

(ii) 

tourism, 

(iii)  postal  services; 

Paragraphs  2.2,  2.3, 3  and  4 

Article  18 

Final  provisions 

Unchanged 

Unchanged 

Unchanged 

Unchanged 

Unchanged 

Paragraphs  1 and  2 

Unchanged 

['anagraph  2\  (new) 

• 

Without  prejudice  to the  rights of  Member 
States  to  develop  different  legislative  and 
?' 
contractual  arrangements  on  working  time 
in  the  light  oi^ changing  circumstances^ 
provided  that  the  minimum  requirements? 
laid  down  in  this  Directive  are  respected, 
the  implementation  of  this  Directive  shall 
sufficient 
not 
grounds 
the 
general  level  of  protection  of  workers. 

in  any  case  constitute 

to  justify  a  reduction 

in 

Paragraphs  3  and  4 

I Inchanged 

/Q 

Paragraph  5 

The Commission  shall  at regular intervals 
submit  to  the  European  Parliament,  the 
Council  and  the  economic  and  Social 
Committee  a report on  the  application  of 
into  account 
taking 
this  Directive 
paragraphs  1, 2,  3 and 4. 

shall  at  five-yearly 
The  -Commission 
the  Kuropean 
to 
intervals 
submit 
Parliament, the Council  and the Economic 
and  Social  Committee  a  report  on  the 
application  of  this  Directive  taking  into 
account  paragraphs  1,2,  2A,  3 and 4. 

Article  19 

Unchanged 

M 

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