Opinion of the Economic and Social Committee on the 'White Paper on sectors and activities excluded from the Working Time Directive'
Date: 1998-03-26
Institutions: European Economic and Social Committee
Subjects: EU action, application of EU law, arrangement of working time, occupational health, working time

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Opinion of the Economic and Social Committee on the ‘White Paper on sectors and activities
excluded from the Working Time Directive’

(98/C 157/18)

On 17 July 1997 the Commission decided to consult the Economic and Social Committee,
under Article 198 of the Treaty establishing the European Community, on the ‘White Paper
on sectors and activities excluded from the Working Time Directive’.

The Section for Social, Family, Educational and Cultural Affairs, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 12 March 1998. The
rapporteur was Mr Konz.

At its 353rd plenary session (meeting of 26 March 1998) the Economic and Social Committee
adopted the following opinion by 101 votes to 6, with 7 abstentions.

1.

Introduction

1.1.
The aim of this white paper is to find the best
ways of ensuring the protection of health and safety,
with regard to working time, of workers currently
excluded from the scope of Council Directive 93/104/EC
concerning certain aspects of the organization of work-
ing time. In the light of sectoral analysis and evaluation,
and following a request from the European Parliament,
the Commission has concluded that there is a problem
to be solved, i.e. that in all the excluded sectors and
activities there are some workers who have no protection
against working long hours or no guarantee of adequate
rest. Moreover, the lack of adequate measures could
lead to distortions of competition within the single
market and between competing modes of transport.
Four broad policy approaches to the problem can be
considered:

1) a non-binding approach;

2) a purely sectoral approach;

3) a differentiated approach;

4) a purely horizontal approach.

Subject to consideration of the views expressed on the
white paper, the Commission proposes to proceed on
the basis of Option 3, i.e. a differentiated approach.
Under this option a distinction would be made between
those activities which can be accommodated under the
Working Time Directive (93/104/EC) and those which
require specific measures.

This would entail:

— extending the full provisions of the directive to all
non-mobile workers. Appropriate adjustment of the
existing derogations would be made to take account
inter alia 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 provisions of the directive
regarding:

• four weeks’ paid annual leave

• health assessments for night workers

• a guarantee of adequate rest;

• a maximum number of hours to be worked

annually.

— introducing or modifying specific legislation for each
sector or activity concerning the working time and
rest periods of ‘mobile’ workers and those engaged
in ‘other work at sea’.

With regard to such sectoral measures, the Commission
hopes that it will be possible to proceed on the basis of
agreement between the social partners.

1.2.
Directive 93/104/EC, on certain aspects of the
organization of working time, was only adopted by the
Council on 23 November 1993, although the Com-
mission proposal (1) dated back to 20 September 1990.
The Social Affairs Council was only able to reach an
agreement after much political prevarication, which
ended in a conditional UK opt-out on the length of
the working week, an across-the-board extension to
‘managing executives’ of the excessively broad dero-
gations provided for under Article 17, and the exclusion
of a large number of sectors and activities.

1.3.
Finally, in a Judgement of 12 November 1996,
the European Court of Justice dismissed an appeal
lodged by the UK against the Council, finding that the
directive did no more than was needed to achieve the
objective of protecting the health and safety of workers.
Directive 93/104/EC is thus legally binding in all
Member States, which were required to implement it by
23 November 1996 at the latest.

(1) OJ C 254, 9.10.1990.

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1.4.
The directive is based on Article 118a of the
Treaty establishing the European Community, which
stipulates that Member States ‘shall pay particular
attention to encouraging improvements, especially in
the working environment, as regards the health and
safety of workers ...’. The fourth and fifth recitals
respectively refer to the key points (Nos 7, 8 and 19) of
the Community Charter of the fundamental social rights
of workers (1), and to the principle that ‘the improvement
of workers’ safety, hygiene and health at work is an
objective which should not be subordinated to purely
economic considerations’.

1.5.
If the single market is to operate properly, it is
vital that minimum regulations on the protection of
workers’ health and safety be introduced.

2. General comments

2.1. On 18 December 1990, the Economic and Social
Committee (ESC) adopted, by a large majority, an
opinion (2) on the proposal for the directive (3). The
proposal did not at that stage contain the exclusions
which have prompted the white paper under discussion.

Whilst the ESC endorsed the Commission proposals, it
hoped to strengthen them by referring on several
occasions to ILO (International Labour Organization,
Geneva) standards in this sphere. Nowhere did it call
for the exclusion of any sector or activity, since the
proposal aimed only to regulate certain limited aspects
of the organization of working time, and derogation
options — subject to certain conditions — were provided
for in the body of the text.

At the time, the ESC did not feel that the proposal:

— in any way restricted flexibility in working time or

in plant operating hours;

— would reduce overall working time;

— sought to harmonize shift and night work throughout

the Community.

Three years later, however, the Council saw fit
2.2.
to ignore the Commission and ESC line. It decided, on
its own initiative, to exclude a large number of sectors
and activities from the scope of the directive. This is
particularly perplexing in relation to work-related issues,
as the proposal included a number of provisions for the
flexible application — in specific situations — of the
principles which it sets out. For example, the directive
provides for derogations from all the main provisions,
except for annual leave, in a wide range of circumstances,
including ‘in the case of activities 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 another.’

2.3.
The ESC noted that when the Council took its
decision, it reasoned that the exclusions were warranted
by the specific nature of certain activities; it did not
contest the need for social protection of the workers
concerned. The 16th recital of the directive reflects this
thinking, and is evidence of the political will to use other
methods to tackle the problem:

‘Whereas, given the specific nature of the work
concerned, it may be necessary to adopt separate
measures with regard to the organization of working
time in certain sectors or activities which are excluded
from the scope of this directive;’.

2.4.
The ESC also noted the following Commission
declaration, on the day the directive was adopted: ‘The
Commission reserves the right to put forward, as soon
as possible, specific proposals on the various sectors and
activities which have been excluded, bearing in mind
the individual features of each sector and activity’
(Translator’s note: unofficial translation — reference
document not available).

2.5.
Subsequently, the ESC followed with interest the
progress of the various Commission and European
Parliament initiatives. During the debate on the Common
Transport Policy Action Programme (1995-2000), for
example, the European Parliament: ‘endorsed the need
to submit legislative proposals on working time in
transport, in particular in areas where the social partners
did not reach agreement.’

2.6. On this basis, the ESC agrees with the Com-
mission white paper that:

— there is no objective justification for totally excluding

any sector;

— there is no justification for treating ‘non mobile’
workers differently from other workers covered by
the directive;

— in order to ensure minimum levels of protection of
health and safety, the basic principles of the directive
should apply to all workers;

— workers should be adequately protected from the
harmful effects of disruptive working patterns and
night work;

— agreements between the social partners would pro-

vide the best solution.

3. Sectoral comments

3.1. Transport

(1) European Council of 9.12.1989, Strasbourg.
(2) OJ C 60, 8.3.1991, p. 26.
(3) OJ C 254, 9.10.1990.

The ESC agrees with the Commission when it
3.1.1.
states openly that a large number of workers, particularly

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‘non mobile’ workers in the road, rail, inland waterway,
sea and air-transport sectors, were excluded for no
objective reason in 1993 and should be covered by
Directive 93/104/EC.

The ESC would point out that the existing Regulation
(EEC) No 3820/85 fixes maximum driving time and
minimum rest periods even for self-employed drivers,
but does not cover working time outside the driving
period.

These workers are engaged in occupations which can be
equated with work in other industries currently covered
by the directive. This is extremely important, as these
workers make up the vast majority of those excluded.

3.1.2.
In this respect, the ESC regrets that the white
paper — published four years after these workers were
excluded — is not accompanied by a proposal for an ad
hoc directive.

The ESC is obliged to note that the absence of
3.1.3.
a directive for ‘mobile’ workers in the surface transport
sector has already led to major changes in the various
modes of transport, and that, owing to the legislative
delay which has arisen for a variety of reasons, an often
conflictual situation has worsened considerably. If such
a directive had been provided in the first place, this
downward spiral could have been avoided, or at least
nipped in the bud.

3.1.4.
The ESC believes that outstanding problems in
the road transport sector must be addressed rapidly, in
order to avoid an increase in distortions of competition
both within this particular mode and between different
modes of transport, and to avoid a rapid decline in the
working conditions of commercial drivers, of which
there are currently 1,2 million employed in the passenger
transport sector and 2,1 million in the road haulage
sector.

3.1.5.
The ESC welcomes the fact that, in the rail
transport sector, the social partners in the Joint Com-
mittee on Railways reached an agreement on 18 Septem-
ber 1996.

This agreement could easily serve as a blueprint for the
other sectors, and for the Commission in the draft
directives which it is to submit to the Council.

The ESC is particularly pleased that, in the
3.1.6.
sea shipping sector, the social partners in the Joint
Committee have also reached an agreement, which
should be finalized shortly.

Like the Commission, the ESC hopes the Member States
will move quickly to ratify ILO Convention No 180
(1996) on working time in the sea shipping sector,
adopted by the International Labour Organization in
Geneva in October 1996.

According to a recent statement by the Transport
Council, a political platform exists for speedy ratifi-
cation. This is a sine qua non for the social partners in
the sector, which is open to global competition.

3.1.7.
Conversely, the ESC is disappointed that, in
the inland waterway and lake transport sector, the Joint
Committee on Inland Waterways has been unable to
reach an agreement, owing to the fact that some
employers felt that they did not have a mandate to do
this.

3.1.8.
The ESC is keen to see an agreement in the air
transport sector, where the ad hoc working party has
only to establish Flying Time Limitations.

There is a real risk that this unhealthy situation could
lead to serious social conflict and unacceptable social
dumping in the road haulage sector, which is a vital
sector of the European economy.

3.2. Sea fishing

The European Community has to protect itself from the
unfair competition resulting from the social dumping
practised by road-transport firms from less socially
advanced third countries.

In this context, it should also be stressed that Directive
93/104/EC already applies automatically to own-
account road transport (mainly chemical and petrol
products, agrifoodstuffs, construction industry, and
wholesale and retail trading). This sector provides
employment for 3 to 3,5 million lorry drivers.

3.2.1. With regard to sea fishing, the ESC is the first
to acknowledge that the conditions and the nature of
the work are very specific and diverse, particularly as
regards fishing methods and type of catch, ship tonnage
and the large number of self employed workers in the
sector. However, the Committee would point out that
failure to deal promptly with the question of working
time in the sea fishing sector — currently undergoing
major changes — has had serious implications for the
implementation of EU sea fisheries programmes, the
importance of which is plain to all.

3.2.2.
The ESC therefore believes that this industry,
in which there are more occupational deaths and
accidents than in any other, should be covered — even

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more than other sectors — by adequate worker health
and safety-protection arrangements, since the link
between fatigue and accidents has been established
clearly. This principle cannot be brought into question,
neither for the sake of entrenched practices whose
justification would be worth exploring, nor for economic
reasons, as indicated clearly by the European Court of
Justice’s judgement (1).

3.4.2. Here, the ESC would also point out that the
considerable discrepancies in the working hours of
trainee doctors (even within the same country) threaten
not only the physical and mental health of the doctors
themselves in the short and medium term, but also —
due to overwork and insufficient rest periods — the
quality of the treatment which they provide for the
community as a whole.

3.2.3.
In view of the above, the ESC would call on
the social partners to return to the ‘Joint Committee’
negotiating table and reach an agreement.

Should no agreement be forthcoming, the partners
should submit proposals to the Commission so that it
can, on the basis of the general principles enshrined in
Directive 93/104/EC, present the Council with a draft
which reflects an industrial view of the sector.

3.4.3. Whilst the Commission feels (point 66 of the
white paper) that the ‘on call’ issue for doctors in
training should be dealt with at national level, the ESC
would remind the Commission that specific on-call
and standby periods — which vary widely in their
characteristics — should be limited in compliance with
the general principles — and in particular with the
provisions for consecutive rest periods — of Council
Directive 93/104/EC.

3.3. Other work at sea

3.3.1.
The ESC would note its concern that the white
paper does not contain any proposals referring to the
mutual interests of the economic and social partners
involved in this sector. The reason for this situation is
apparently the refusal of one of the parties to make its
calls public. The ESC suggests that the Commission set
up a ‘joint ad hoc group’ to decide what working time
legislation is required in this area.

3.3.2.
This ‘joint ad hoc group’ should discuss the
existing legislation and collective agreements that apply
in virtually all the countries involved in offshore oper-
ations.

Since the future could bring new developments in such
activities, the ESC believes it is important to have
appropriate legislation in this sector.

3.4. Doctors in training

The ESC would hasten to point out that there
3.4.1.
is no valid reason to exclude doctors in initial or
specialist training, as a) they are not ‘mobile’ workers
and b) their work does not differ from that of their
salaried colleagues who are ‘not in training’, and who,
by definition, are covered by the scope of Council
Directive 93/104/EC.

Preventive measures should be implemented forthwith
in the hospitals in question, in order to prevent any
deterioration in the quality of patient care.

4. Conclusions

The ESC endorses the Commission’s pragmatic
4.1.
approach in seeking to ensure at EU level the protection
of the health and safety, with regard to working time,
of workers in the sectors and activities currently excluded
from Council Directive 93/104/EC.

The ESC also favours Option 3, which advocates

4.2.
a differentiated, three-pronged approach:

1) extension of the full provisions of the Working Time
Directive (93/104/EC) to all ‘non-mobile’ workers;

2) extension to all ‘mobile’ workers (including sea-going
fishermen) and to those engaged in ‘other work at
sea’ of the provisions of the Working Time Directive
on:

— four weeks’ paid annual leave,

— health assessments for night workers,

— guarantee of adequate rest,

In this respect, the ESC regrets that the Commission
white paper is not accompanied by a proposal for an ad
hoc directive.

— ceiling on the number of hours to be worked

annually;

(1) Judgement of 12 November 1996 in the appeal lodged by

the UK against the Council.

3) adoption, for each sector or activity, of specific
legislation concerning the working time and rest
periods of ‘mobile’ workers and mutatis mutandis
those engaged in sea fishing and ‘other work at sea’.

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4.3.
The Committee joins the Commission in continu-
ing to hope that it will be possible to proceed on the
basis of agreement between the social partners in the
transport and sea fishing sectors.

The ESC therefore urges the Commission to keep up its
action and to give the social partners responsibility in
this area, while making it clear that the new rules must:

— be given the binding force of a directive;

— apply to all the workers concerned;

— not be used to justify deterioration of existing
working conditions (cf. Article 18(3) of Directive
93/104/EC);

— incorporate the provisions for possible and necessary
derogations provided for in Directive 93/104/EC;

— comply with the subsidiarity principle, so that such
derogations may be negotiated within the same
bodies and through the same channels already used
in the respective Member States;

the application of different rules on protecting the
health and safety of workers; and

— mention the advantages for the general public, in
the knowledge that tiredness caused by excessive
working hours poses a real, direct risk for other
people’s safety and well-being.

Agreements between the social partners in the
4.4.
‘Joint Committees’ on the application to their industry
of the points listed in 4.2(2) must obviously be incorpor-
ated in the sectoral legislation envisaged in point 4.2(3).

4.5.
Lastly, the ESC calls for a reasonable deadline
for the conclusion of negotiations between the social
partners, following which the Commission should waste
no time in presenting the Council with concrete pro-
posals to ensure effective protection, with regard to
working time, of the health and safety of workers in the
excluded sectors and activities, whilst providing for
sufficient flexibility to allow firms adequate room for
manoeuvre.

— be implemented simultaneously in order to avoid
disastrous intermodal competition resulting from

The ESC feels it must emphasize its prerogative to be
consulted on any such steps.

Brussels, 26 March 1998.

The President

of the Economic and Social Committee

Tom JENKINS