White Paper on sectors and activities excluded from the working time directive
Date: 1997-07-15
Institutions: European Commission
Subjects: EU action, application of EU law, arrangement of working time, occupational health, working time

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