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European Union
INTRODUCTION
PART ONE: BACKGROUND AND ANALYSIS
PART TWO: OPTIONS
PART THREE: THE WAY FORWARD
CONCLUSION
ANNEX
1. The aim of this White Paper is to find the best ways of ensuring the protection of
the health and safety, with regard to working time, of workers currently excluded from the
Working Time Directive (93/104/EC).
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.
3. The White Paper has been prepared following informal consultation with the social
partners on the basis of a Working Document of the Commission Services.
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
conditions in his working environment.
5. The Council 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 118A of the EC
Treaty. This requires Member States to "pay particular attention to encouraging
improvements, especially in the working environment, as regards the health and safety of
workers ...".
6. The essential aims are to ensure that workers are protected against adverse effects
on their health and safety caused by working excessively long hours, 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 break where the working day is longer than 6 hours;
- a minimum rest period of 1 day a week;
- a maximum working week of 48 hours on average including overtime;
- 4 weeks' annual paid holiday; and that
- night workers must not work more than 8 hours in 24 on average.
7. The Directive contains a number of further provisions relating to the protection of
the health and safety of night workers and shift workers. It also requires measures to be
taken so that the organisation of work according to a certain pattern takes account of the
general principle of adapting work to the worker.
8. The Directive makes extensive provisions for flexibility in the application of the
principles of the directive to specific situations. In particular, the Directive provides
for derogations from all the main provisions except the annual leave provision, in a wide
range of circumstances. These include "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";
"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 accident”. In addition derogations from the
same provisions are allowed in respect of any activity, by means of collective agreement
or agreements between the two sides of industry. These derogations are allowed normally
"provided that the workers concerned are afforded equivalent periods of compensatory
rest". In the case of the provision for a maximum working week of 48 hours on
average, the derogations allow the "reference periods" over which the average
can be calculated to be extended up to 6 months in all cases where derogations are allowed
and up to 12 months by means of collective agreement or agreements between the two sides
of industry.
9. Member States were required to implement the Directive by 23 November 1996.
10. While it is workers' specific health and safety which is quite properly the subject
matter of this White Paper, the Commission wishes to underscore the benefits that the
general public may derive from adequate working time arrangements in all sectors. This is
particularly the case with regard to transport activities 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 action in areas where required
for ensuring a high level of transport safety. Where such action relates to working
(driving) times consistency with measures protecting the workers’ health and safety
must be ensured.
The nature and extent of the exclusion
11. The Commission's original proposal for a Directive on working time covered all
economic sectors and 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).
12. The sixteenth recital to the Directive states : "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".
13. Thus the exclusions were 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.
14. The way in which the exclusions 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 carrying out similar tasks in
other industries. The test should relate to the nature of the activity, not to a
definition of the "sector" in which the employee works.
15. In the case of "other work at sea" and "doctors in training",
the reference, either implicitly or explicitly, is to "activities", so the
problem of defining the work involved does not arise.
Self employed
16. Self-employed workers are not covered by Directive 93/104/EC. While self-employment
is common in certain excluded sectors, for example in the road and inland waterways
sectors, it is also prevalent in many other sectors, already covered by the Directive, for
example the construction industry. The argument that special treatment should continue to
be applied in certain sectors, simply because of the high proportion of self-employed
workers cannot therefore be sustained. This does not mean to say that self-employed
workers are excluded from all Community legislation. For example, in the economically most
important excluded sector, road transport, self-employed workers are covered by the
existing regulations on driving time.
17 However, while the objective is to protect health and safety, the Commission is
sensitive to the effect of possible distortions of competition and the imperatives of
ensuring transport 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.
Employment in the excluded sectors
18. The total employment, including self-employment, in all the sectors and activities
excluded from the Directive, is about 5.6 million (about 4% of total employment in the EU).
Of these 3.5 million are in the Road Transport industry. In addition there are some 3
million workers in “own account” road transport, 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).
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,
often 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 Conditions.
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, legislation in most Member States providing minimum periods of annual leave,
in respect of most sectors.
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
from the Directive. For example, the Commission's Communication to the European Parliament
stated 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 Sectoral Committees for the sectors concerned (where they
exist)."
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
ensure that the activities and sectors excluded from the directive on the organisation of
working time are appropriately covered .... If necessary, the Commission will consider
bringing forward proposals to complete the Directive in 1996-1997".
23. In its Resolution on the Medium-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 Parliament also called on the 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.
24. In its Common Transport Policy Action Programme 1995-2000 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
clear. 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.
26. The Commission requested the Joint Committees to provide joint descriptions of the
existing situation with regard to working time arrangements in these sectors and to give
their recommendations on how to adapt the principles of the Directive with regard to their
area of work.
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 working time
arrangements in respect of "other work at sea" and "doctors in
training" to provide the basis for the analysis which follows, in respect of these
activities.
29. The following paragraphs analyse 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 estimated 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 chemicals, oil products, agri-food, construction and the gross/retail trade).
It should be noted, however, that own account transport workers are already covered by the
Directive.
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 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 Working 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 aim to harmonise the conditions of
competition between all types of road transport operators as well as to improve road
safety and working conditions in general. Given its direct link with road safety, the
Regulation applies not only to employees but also to self-employed drivers.
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 part of the
daily working time of drivers but which are not covered by the Regulation. This may in
certain circumstances lead to extremely long overall working times. Furthermore there are
many exclusions and possibilities for further exceptions from the Regulation. As a result,
a variety of rules is currently applicable in the Community leading to significant
distortions of competition. This means that the road haulage sector can be subject to
industrial relations problems which have already led to serious disruptions in the
provision of transport services, affecting considerably the free movement of goods,
services and persons. These shortcomings need to be phased out by appropriate Community
action.
33. Employers have argued that a better application of existing rules would be
preferable to new rules, whereas trade unions stress the need to cover all working time.
Discussions in the Joint Committee were resumed towards the end of 1996, but there appears
to be little common ground between the two sides.
34. The provision for consecutive daily rest in the Working Time Directive might be
considered 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
3820/85, 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-specific
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 a maximum number of
hours worked per year should not apply to all mobile workers in the sector. The full
provisions of the Working Time Directive should apply to all non-mobile workers. 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 intends to propose in early
1998 important amendments to Regulation 3820/85. These amendments would, inter alia,
integrate new provisions on the maximum daily, weekly and fortnightly limits to be placed
on driving and loading/unloading activities into the Community’s legislative system
on driving time in road transport. They will also seek to achieve uniformity as far as
checking rules and procedures are concerned.
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 (now
Federation) for Transport Workers' Unions in the European Community shows that in 1992,
19% of employees worked as drivers and other train crew, 31% as traffic/maintenance staff
(goods porters, semi-skilled workers, shunters for train coupling in stations and/or
private sidings, terminal installations, containers etc.) and 50% were operational and
station staff.
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 determined 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 long-distance train
drivers and accompanying staff. While these activities, and working conditions in general,
are covered by a series of collective agreements at national level, the absence of any
Community level framework will present growing problems as liberalisation and competition
with new entrants gathers momentum.
37. The Joint Committee on Railways 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 provisions should be applied to other transport sectors at
the same time. A further condition is that existing 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.
38. Rail seems to be a sector where existing agreements between social partners work
satisfactorily. In the light of the agreement within the Joint Committee, there are no
objective reasons for continuing the exclusion in respect of this sector. In addition the
Commission will monitor developments closely in this industry with a view to assessing the
need for supplementary specific action.
Urban Transport
39. While not mentioned specifically in Directive 93/104, this "sector",
which covers aspects of rail and road transport, is excluded from the Working Time
Directive. It is also excluded to a large extent from Regulation 3820/85 (regular
passenger services with an operating radius of 50km or less), which may affect the safety
of passengers. The Commission services have received representations from the UITP (Union
Internationale des Transports Publiques) representing the interests of urban passenger
transport, which are different from those of road or rail sectors as such. In formulating
any proposals, the Commission will take account of their concerns.
Inland Waterways
40. Approximately 45,000 people work in the inland waterway 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 small operators with only one vessel, who make up the great majority of the
small operators, their vessel is both their means of making a living as well as their
permanent home. However, those operating on the Rhine are currently subject to provisions
on crew's rest periods, its composition and vessel navigation time. The link between these
measures and working time is that the small operator, in as much as he is a member of the
crew, is subject to regulations on an obligatory rest period and vessel navigation times.
41. The two sides in the 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 followed
fairly closely 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.
42. The extension of the provisions of 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, both by 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.
Air Transport
43. It is estimated that there are approximately 375,000 employees working for air
transport companies in the 15 Member States of the EU. About 20% of these are flight crews
and the remainder ground staff, including maintenance and ticketing staff.
44. Flight time limitations are necessary, because it has long been recognised that
serious performance degradation could occur as a result of flight crew fatigue. Aviation
presents combinations of factors that influence fatigue not encountered in other
professions. Personnel are required to evaluate situations, take decisions and perform
well under stress during long work periods, sometimes at night and after crossing many
time zones. It is therefore necessary 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.
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.
46. The agreement that the provisions of the general Directive should be extended to
ground staff constitutes a considerable step forward. With regard to flight personnel, the
only substantive problem with extension of the Directive might concern the provisions with
regard to daily rest and rest breaks, 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.
Sea Transport
47. The number of seafarers employed in the EU flagged fleet is estimated 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.
48. Long working hours at sea are 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.
49. Agreement was reached in the 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 10 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 Commission has submitted a formal proposal to the Council amending
Directive 94/58/EC on the minimum level of training of seafarers. This proposal reflects
the provisions of the 1995 STCW Convention in respect of minimum rest periods for
watchkeepers in the deck and engine departments. This amended Directive is currently being
discussed in the legislative bodies of the European Community and on 18 June 1997, the
Council of Ministers reached a common position on it.
50. In October 1996, the International 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 (10 hours a day and 77 hours a week). The
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° 180 and, subject to further discussion of the details, elements of the
Working Time Directive.
51. Much progress has been made. 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 ILO Convention 180, so that minimum standards with
regard to maximum working time or minimum rest can be enforced internationally.
Sea Fishing
52. There are about 270,000 sea-going fishermen in the EU Member States. In addition
there are 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 industry, but these are already subject to the provisions of the Working Time
Directive.
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, the financial consequences for
share fishermen and the diverse nature of the industry in Europe. The 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.
54. The Commission hopes that the social partners will reach a common position.
However, in the absence of agreement, sector-specific provisions could be proposed for
sea-going personnel, covering daily and weekly rest periods. In 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 provisions of the Working
Time Directive should apply to all non-mobile workers, with suitable further provision for
derogations, if necessary.
Other Work at Sea
55. The number of 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 engaged in seismic surveying
work in European waters. The main EU countries involved are the UK (with well over half
the EU employment in the sector), Denmark, Netherlands and Italy.
56. According to the study undertaken for the Commission virtually all
offshore work in the North Sea is based around a 12-hour working shift. Some managerial
personnel and specialists may work according to the daily requirements of the job, rather
than to fixed hours. The duration of the period offshore is typically two weeks, but
varies somewhat according to the 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.
57. There is legislation, often supplemented by collective agreements, containing at
least basic provisions concerning hours of work or minimum 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 safety of their employees.
Working time should be included in both the safety case and the risk assessment.
58. According to the Coshape report (prepared in 1995), overtime of 6 to 16 hours per
week (over and above the 12 hour daily shift) was not unusual in Denmark. In the
Netherlands, where overtime was worked offshore there had to be compensatory rest during
the time offshore. In the UK 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 overtime 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.
59. There is no EC level social dialogue in this sector. Trade unions wish for
negotiations at EC level, or, failing that, a specific Directive. The 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 day
shift pattern and an annualised 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 recognition to the international and seasonal nature of the
industry’s working patterns by allowing an annualised calculation of working hours.
Indeed the working patterns of these workers are in many ways analogous to those of
“mobile” transport workers, in that they work away from home. They should
therefore be treated similarly to such workers. In particular, some of the activities
could be covered by similar arrangements to those proposed for maritime transport.
Doctors in Training
61. The exclusion refers to "doctors in training". In general, in Member
States, the concept of "doctor in training" contains two important features: the
persons concerned have completed their basic (undergraduate) medical training; and they
are preparing for a recognised higher medical qualification. The length of the training
period varies from country to country and it is not clear in some 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.
62. It is estimated that there are over 270,000 junior hospital doctors (corresponding
roughly to the concept of “doctors in training”) throughout the EU. However,
almost half of these are in Germany, where national legislation on working time already
applies.
63. There was an apparent problem relating to the employment status of doctors in
training. In some countries, they have a special status, which is neither self-employed,
employee, nor trainee. However, on further investigation, it would appear that in the vast
majority of countries, they are considered to be "employees" for the purpose of
employment law.
64. A specific feature of the employment of doctors in training relates to
“on-call” duty. The study undertaken for the Commission in 1994 showed that the
treatment of “on-call” duty varies considerably in individual Member States. A
high number of weekly hours and excessively long periods of continuous duties are expected
of doctors in training in several countries, 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 exceeded 55 hours a week in many countries.
65. There is a clear risk therefore to the health and safety of a considerable number
of trainee doctors. To the extent that these doctors are directly involved in medical
procedures and medical decisions affecting patients, the safety of such patients could
also be put at risk.
66. The "on-call" issue for doctors in training should be dealt with at
national level. However, the current wording of the Directive does, in fact, allow Member
States to define 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, just as they already apply to other
employed doctors, while adjusting the existing derogations to allow the Member States to
deal with the treatment of “on call duty”. In considering how to extend the
Directive, the Commission will take into account the potential impact on the provision and
quality of health care.
67. Before making proposals, it is 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 Directive, the following criteria would appear to
be appropriate.
68. The action proposed would need :
a) to ensure adequate protection for the health and safety of workers with regard to
working time;
b) to allow adequate operating flexibility to firms;
c) to take account of any impact on employment;
d) 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;
e) to respect the principle of subsidiarity;
f) to respect the principle of proportionality.
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.
70. The analysis in Part One has shown that there is a problem to be solved, i.e. that
in all sectors and activities excluded there are some workers who have no protection
against working long hours or no guarantee of adequate rest. Having identified the policy
options to resolve this problem, the Commission must ensure that the chosen solution meets
the criteria set out in paragraph 68.
71. Four broad policy approaches to the problem can be considered :
- a non-binding approach;
- a purely sectoral approach;
- a differentiated approach;
- a purely horizontal approach.
Option 1: Non-binding Approach
72. Under this approach, the Commission would either issue one or more Recommendations
or propose Council Recommendations. This would mean keeping the current exclusions from
the Directive, if this is justified in a particular sector. The 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 the 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.
Option 2: Purely sectoral approach
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 safety requirements and operating
flexibility needs. This approach appeared until relatively recently, to be unlikely to
produce results in the Joint Committees. But there is now some progress in at least two
sectors: sea and rail transport. This is the approach advocated by the European Trade
Union Confederation (ETUC).
Option 3: Differentiated approach
74. The third option is to differentiate between those activities which can be
accommodated under the Working Time Directive and those which require specific measures.
This would entail:
- extending the full provisions of the Working Time Directive to all non-mobile workers.
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
provisions of the Working Time 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;
- 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”.
Option 4: Purely horizontal approach
75. The fourth option would be to 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:
a) clarification of Directive 93/104/EC to ensure that all the provisions of that
Directive apply to non-mobile workers;
b) to provide for basic minimum protection in respect of working time, such as a
guarantee of adequate rest and 4 weeks’ paid annual leave, for all other workers not
covered by Directive 93/104/EC.
76. The assessment in Part One leads to 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. The second conclusion is that there is no reason to treat "non-mobile"
workers differently from other workers already covered by the Directive.
79. The third conclusion is that in order to ensure minimum health and safety
protection, the basic principles of the 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.
80. The Commission continues 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 specific to management and labour or through legislation at
EC level. The 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.
81. In the light of these considerations, the Commission's preliminary view is that the
most practical approach would 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 account of the operational considerations which were at the
root of the exclusion in the first place.
82. On the other hand, the Commission believes - in the light of the analysis of the
sectors - that the non-binding approach (Option 1) would not be appropriate, 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 or equitable treatment of non-mobile 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 distortions of
competition.
83. How does this proposed course of action (Option 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. The options envisaged are based on the Working Time
Directive, which itself seeks to establish minimum standards.
85. The Working Time Directive allows considerable flexibility to firms (see paragraph
8 above). Similar flexibility should be allowed in any new proposal. Careful consideration
will also be given to the views of employers to ensure adequate additional flexibility
under any new proposals.
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
situation and the competitiveness of European firms. Widely different views are held on
the effect of reducing working time on employment. These are discussed in the Green Paper
“Partnership for a new organisation of work”. However, the Working Time
Directive already permits longer working hours than are commonly worked in practice in
most Member States. Furthermore, the Commission firmly believes that minimum standards
with regard to the protection of the health and safety of workers are important for the
good functioning of the internal market.
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.
88. With regard 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, 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 the 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 objection to legislative action with regard to
subsidiarity.
89. Turning to 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 ascertained whether the means which it employs are suitable
for the objective 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 that the principle of proportionality would also be satisfied.
90. In the light of the foregoing considerations, the Commission considers that a
pragmatic approach should be taken in order to ensure at EC level the protection of the
health and safety, with regard to working time, of workers in the sectors and activities
currently excluded from the Working Time Directive.
91. Subject to consideration of the views expressed on this White Paper, 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:
- extending the full provisions of the Working Time Directive to all non-mobile workers.
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
provisions of the Working Time 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;
- 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”.
92. 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. 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 unions in the sea-fishing and off-shore sectors as to whether they
would wish arrangements similar to those for sea transport (see paragraphs 47 - 51 above)
to apply in their industry.
93. In its Communication concerning the application of the Agreement on social policy,
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. The Commission would also welcome views from other recipients of this White Paper
on the course of action proposed. Any comments should be sent (reference V/D2 - WP) by 31
October 1997 to:
European Commission
DGV/D2
rue de la Loi / Wetstraat 200
1049 Brussels
95. Comments can also be sent by
96. After that date, the Commission will adopt its final position with due regard to
all the views of the social partners and other recipients of the White Paper.
TOTAL EMPLOYMENT |
| Road Transport |
3 500 000 |
| Rail Transport |
965 000 |
| Inland Waterways |
45 000 |
| Air Transport |
375 000 |
| Sea Transport |
160 000 |
| Sea Fishing |
270 000 |
| Other work at sea |
45 000 |
| Doctors in training |
270 000 |
| Total |
5 630 000 |
N.B. These are "ball-park" figures, for further explanations
see sector-by sector analysis in paragraphs 29 to 66.
| 
International
Bureau
for