SECTORS AND ACTIVITIES EXCLUDED FROM THE
WORKING TIME DIRECTIVE
(20941)
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European Parliament amendments to the draft Directive amending
Directive 93/104/EC concerning certain aspects of the organisation of
working time to cover sectors and activities excluded from that
Directive.
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| Legal base: |
Article 137 EC; co-decision; qualified majority voting
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| Department: |
Trade and Industry |
| Basis of consideration:
| Minister's letters of 3 and 17 March 2000
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| Previous Committee Report:
| HC 23-ix (1999-2000), paragraph 6 ( 16 February 2000)
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| To be discussed in Council:
| Conciliation procedure in progress
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| Committee's assessment:
| Politically important |
| Committee's decision:
| Not cleared; further information requested
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Background
6.1 The draft Directive covers road, rail,
sea, air, inland waterway and lake transport, sea fishing, "other
work at sea" (essentially offshore oil and gas extraction)
and "doctors in training" — all sectors which
are currently excluded from Directive 93/104/EC, the Working Time
Directive (WTD). The Social Affairs Council reached political
agreement to a proposed text on 25 May 1999; the Council unanimously
adopted its Common Position on 12 July. The European Parliament
(EP) Social Affairs Committee met on 14 October and tabled a number
of amendments to the Common Position text which the EP voted to
accept on 16 November. The Council did not accept all of the EP
amendments, and the conciliation procedure is now in progress.
6.2 When we considered the EP amendments
(in February), we had four questions for the Minister for Competitiveness
at the Department of Trade and Industry (Mr Johnson). He responded
to three of these in his letter of 3 March, and to the last on
17 March.
The Minister's letters
6.3 In his reply to our first three questions,
the Minister says:
"The Committee expressed
surprise that we did not comment on amendment 1, which would have
the effect of including a recital proposing a new measure that
Sunday be a day of rest. The UK supports the Common Position in
this respect, which removes references to Sunday as a day of rest.
As you point out, in the light of the ECJ judgment on the UK challenge
to the WTD any provision that Sunday should be a rest day could
not be effected as a health and safety measure and thus could
not be included in the revision to the WTD (without changes to
the treaty base). We did not single out this amendment for particular
comment as it will be precluded on procedural grounds.
"With regard to amendment 2 you say you are
unclear as to the agreements in the Common Position covering mobile
workers performing road transport activities and self-employed
drivers. The WTD only applies to those who are employed. The Horizontal
Amending Directive will extend the provisions of the WTD in full
to non-mobile workers in the excluded sectors. Mobile workers
(drivers) will be entitled to 4 weeks paid annual holiday and
their working time limited to an average of 48 hours work.
"The Road Transport Directive provides more
detailed rules for mobile workers concerning breaks and rest periods
in the road transport sector. Talks on these proposals have been
deadlocked for some time now and the question of whether self-employed
drivers should be included or not from [sic] the scope
has yet to be resolved. A separate EM concerning the Road Transport
Directive was submitted on 29 February 2000.
"In respect of amendments 5 and 8, relating
to junior doctors, you asked how willing the Government was to
compromise over the long transition period given that the BMA
does not support the Government on this issue. The reasons we
require such a lengthy period have been set out in the Explanatory
Memorandum. The Government has little room for manoeuvre, given
the length of time it takes to train a doctor and the number of
extra doctors that are needed.
"Doctors from the EEA already play a valuable
part in the NHS, and we have made efforts to recruit over the
past few years. However, the number of doctors from these countries
remains small in the UK. The barriers posed by language and culture
are major contributory factors in this respect. It is also the
case that a number of Member States will have similar difficulties
to ours in meeting the requirements of the Directive which, we
anticipate, will result in the market being tightened considerably.
Therefore, the Government, along with other Member States, opposes
any change to the Common Position."
6.4 In his second letter, the Minister responds
to our last question as follows:
"The Committee has asked
for clarification as to why the amendment limiting the overall
hours of sea fishermen to a weekly average of 48 hours is so restrictive
and inflexible given the existing measures which limit fishing
activity in an effort to conserve stocks.
"The European Parliament amendment would impose
an annual ceiling of 2,304 working hours (i.e. 48 weeks x 48 hours).
In opposing the amendment, the Government is not seeking to put
at risk the health and safety of employed sea fishermen. An average
of 2,304 working hours a year is unlikely to constrain many boats
in the inshore fleet. However, the larger, offshore vessels account
for the majority of the fish landings, and fishermen on a significant
proportion of these vessels have to work well in excess of 2,304
hours a year to earn a living. A reduction of fishing trips in
order to meet the working time requirements would reduce fishermen's
income and endanger livelihoods in vulnerable fishing communities.
"The existence of limitations on fishing effort
mentioned by the Scrutiny Committee is in fact a further reason
for opposing the EP amendment, because when fishermen find a shoal
of fish that can be legitimately caught within their quotas, it
would be unreasonable to expect them to forego the opportunity
to land the catch because all or some of the crew have worked
more than say, 14 hours that day. Moreover, not all species are
subject to quotas, and fishermen are encouraged to diversify into
non-quota species wherever possible.
"Imposing arbitrary limits will make it even
harder for the UK fishing fleet to survive than at present. The
Council's Common Position recognises the reality of fishing while
seeking to protect employed fishermen from risk to their health
and safety due to fatigue."
Conclusion
6.5 We thank the Minister for his response,
and accept his reasons for not commenting in his Explanatory Memorandum
on amendment 1 (proposing that Sunday be a day of rest).
6.6 We are also grateful to him for clarifying
(to some extent) the position of mobile workers performing road
transport activities and self-employed drivers, and for supplying
a separate Explanatory Memorandum on the Road Transport Directive,
on which we have now reported[18].
6.7 In relation to junior doctors, we
note the points made by the Minister, but suggest that the barriers
to employing doctors from elsewhere in the EEA may not be as insuperable
as he suggests.
6.8 The Minister's argument about the
hours of sea fishermen is hard to grasp. His basic premise seems
to be that the EP amendment is unacceptable because it does not
allow any facility to derogate from the annual limit. However,
instead of stating that objection directly, he attacks the amendment
on a number of fronts, in a way which is difficult to follow.
6.9 His chief concern is with the offshore
fleet which, he says, accounts for the majority of fish landings.
To justify his opposition to the EP amendment he points to the
unreasonableness of expecting that fishermen, faced with an immediate
fishing opportunity, will forego it because they have reached
a limit of 14 hours of work a day. But that limit (albeit with
some ability for substitution) is in the Council's Common Position,
which the Minister supports.
6.10 The Minister objects to the annual
limit on working hours proposed by the EP because, he says, a
significant proportion of offshore vessels have to work
in excess of that limit to earn a living.
6.11 Leaving aside the question whether
the total annual hours of work of the vessel are the same
as those of its crew (which would be the case only if on a fishing
vessel at sea it were not feasible to provide rest hours at all),
we do not find the Minister's assertion immediately persuasive
and ask below for the evidence on which it is based.
6.12 Fishing effort is constrained both
by weather and conservation measures, which have a particular
impact on the catching of species subject to quota. We ask the
Minister to tell us how many days each year, on average, an offshore
vessel is not able to fish due to weather conditions, breaking
down his answer according to sector or region if appropriate.
We further ask the Minister to tell us, on average, how many days
fishing effort are required for an offshore vessel to catch its
quota allocation for each of the species subject to quota.
6.13 We recognise that fishing for quota
species can be supplemented by fishing for non-quota species and
we ask the Minister to tell us what proportion of the offshore
fleet participates in the latter fisheries and, amongst those
vessels, what proportion of the time spent fishing is spent on
fishing for such species, broken down if appropriate by sector
and region.
6.14 Since this proposal is now in conciliation
we ask the Minister for an urgent reply to enable us to consider
it again before that procedure is concluded. In any event and
notwithstanding that, in relation to both junior doctors and sea
fishermen, the Government still opposes any change to the Common
Position, we trust that progress will somehow be made so that
the proposal does not fall.
6.15 We do not clear the document.
18 (21010) - ; see HC 23-xi (1999-2000), paragraph 8
(8 March 2000). Back
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