CELEX: 51993PC0578
Language: en
Date: 1993-11-16
Title: Re-examined proposal for a COUNCIL DIRECTIVE concerning certain aspects of the organization of working time

COMMISSION OF THE EUROPEAN COMV1UNITIES
                                                                     COM(93) 578 final - SYN 295
                                                                      Brussels, 16 November 1993
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                                             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)
 ---pagebreak--- 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 proposal 2 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
 ---pagebreak---                                                                                               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
 ---pagebreak--- 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
( 'omnwnf
 See comment on Amendment No 14
 ---pagebreak--- Amendment No 18
Agreement to voluntary overtime can be given by the workers concerned or their
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.
 ---pagebreak---                                                                                                     6
                                  Re-examined proposal for a
                                        Council Directive
             concerning certain aspects of the organization of working time
           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            Whereas, with respect to the weekly rest
period, due account should be taken of the          period, due account should be taken of the
diversity of cultural, ethnic, religious and        diversity of cultural, ethnic, religious and
other factors prevailing in the Member              other factors existing in the Member
States; whereas, in particular, it is               States, whereas, in particular, it is
ultimately for each Member State to                 ultimately for each Member State to
decide whether Sunday should be                     decide whether Sunday should be
included in the weekly rest period, and if          included in the weekly rest period, and if
so to what extent,                                  so to what extent;
Recitals 10 to 14                                    Unchanged
                                                    Recital 14A (new)
                                                    Whereas, because of the specific nature of
                                                     the work, it will be necessary to take
                                                     separate measures with regard to the
                                                     organisation of'working time in certain
                                                     sectors or activities, whereas the
                                                     Com miss i on will take initiatives in respect
                                                     of each o f . the sectors ancL activities
                                                     excluded from this Directive:
 ---pagebreak--- Recitals 15 to 17                           Unchanged
Articles I to 15                            Unchanged
Article 16
Reference periods
Member States may lay down:
1) for the application of Article 5         Unchanged
   (weekly rest period), a reference
   period not exceeding 15 days;
2) for the application of Article o         2) for the application of Article (>
   (maximum weekly working lime), a            (maximum weekly working time), a
   reference period not exceeding four         reference period not exceeding four
   months;                                     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:
3) for the application of Article 8 (length Unchanged
   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
 ---pagebreak---                                                                                                S
Paragraph 2
Derogations may be adopted by means of         Unchanged
laws, regulations or           administrative
provisions or by means of collective
agreements or agreements between the
two sides of industry provided that the
workers concerned are afforded equivalent
periods of compensatory rest or that, in
exceptional cases in which it is not
possible, for objective reasons, to grant
such equivalent periods of compensatory
rest, the workers concerned are afforded
appropriate protection:
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        (a) in the case of activities where there
     worker's place of work and his place            is a considerable distance between
     of residence are distant from one               the worker's usual place of work and
      another.                                       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 security and                Unchanged
      surveillance activities requiring a
      permanent presence in order to
      protect     property    and     persons,
      particularly security guards and
      caretakers or security firms,
(c) in the case of activities involving the    I huhaiu'.ed
      need for continuity of seivice oi
      production, particularly:
      (i)   services     relating    to    the Unchanged
            reception, treatment and /or care
            provided by hospitals or similar
            establishments,       residential
            institutions and prisons;
      (ii)  dock or airport workers,            Unchanged
      (iii) press, radio, television, postal   (iii) press,      radio,     television,   fi[m
            and teI ecomm un i ca t i on s            p r otl y e t i o n ,   postal      an d
            services, ambulance, fire and             telecommunications             services,
            civil protection services.                ambulance, lue and civil piotection
                                                      sei vices
 ---pagebreak---     (iv) gas, water and           electricity Unchanged
          production, transmission and
          distribution, household refuse
          collection    and     incineration
          plants,
    (v)   industries in which work cannot     Unchanged
          be interrupted on technical
          grounds;
    (vi) research      and     development    Unchanged
          activities;
    (vii) agriculture,                        Unchanged
(d) where there is a foreseeable surge of
    activity, particularly in:
    (i)   agriculture;                        Unchanged
    (ii)  tourism,                            Unchanged
    (iii) postal services;                    Unchanged
Paragraphs 2.2, 2.3, 3 and 4                  Unchanged
Article 18
Final provisions
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
                                              not in any case constitute sufficient
                                              grounds to justify a reduction in the
                                              general level of protection of workers.
 Paragraphs 3 and 4                           I Inchanged
 ---pagebreak---                                                                                     /Q
Paragraph 5
The Commission shall at regular intervals The -Commission shall at five-yearly
submit to the European Parliament, the    intervals submit to the Kuropean
                                          Parliament, the Council and the Economic
Council and the economic and Social
                                          and Social Committee a report on the
Committee a report on the application of
                                          application of this Directive taking into
this Directive taking into account        account paragraphs 1,2, 2A, 3 and 4.
paragraphs 1, 2, 3 and 4.
                                           Unchanged
 Article 19
 ---pagebreak---                                                                                          M
                                                                          ISSN 0254-1475
                                                                   COM (93) 578 final
                                                           DOCUMENTS
     EN                                                                              04
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