11 Working time: inland waterway transport
| Committee's assessment
| Politically important |
| Committee's decision | Not cleared from scrutiny; further information requested
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| Document details | Draft Council Directive about a social partners agreement on working time in inland waterway transport (36216), 11688/14 + ADDs 1-3, COM(14) 452
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| Legal base | Article 155(2) TFEU; —; QMV
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| Department | Transport
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Summary and Committee's conclusions
11.1 The Working Time Directive, lays down common
minimum standards, including daily and weekly work and rest limits,
night work and annual leave, but allows for more specific rules
to be made for specific sectors. Article 155 TFEU provides for
the possibility of a European Social Partners' Agreement (SPA)
between management and labour being implemented by Council decision
on a proposal from the Commission.
11.2 The European Barge Union, the European Skippers
Organisation and the European Transport Workers Federation, the
sectoral social partners, have concluded an SPA on specific working
time rules for mobile workers in inland waterway transport. In
response to a request from these organisations the Commission
proposes this draft Directive to implement the SPA.
11.3 The Government recognises the need for adequate
working time rules for mobile workers in inland waterway transport.
But it finds the SPA, which can only be accepted or rejected in
its entirety, insufficiently flexible to cater for the UK's significantly
different inland waterway transport operations to those on the
EU's major waterways. Moreover, one of the aims of the draft Directive
is to facilitate cross-border enforcement of these working time
rules, which has little relevance for the UK, given the one waterway,
between Northern Ireland and the Republic of Ireland, which currently
has one small Irish flag passenger ship operation.
11.4 The Government will therefore seek support from
other Member States not linked to the main EU waterway network
challenge the scope of the proposed Directive in order to limit
the application of the agreement to cross-border inland waterways
transport, and possibly to the major routes on the Trans-European
Transport Network, provided that national rules provide a similar
or equivalent level of protection, taking into account national
characteristics. But, if unsuccessful in limiting the application
of the Directive, the Government will seek clarification on the
application of the proposal to the types of operation in the UK,
with a view to minimising the numbers of UK operations that would
be bound by the standards.
11.5 The Government also tells us that that it is
possible that a political agreement on the draft Directive may
be sought at a Council meeting on 16 October, but that it will
be seeking industry views during negotiation of the draft Directive
and that it will only be able to make a full assessment of its
potential impact when it has clarification of a number of matters
in the proposal.
11.6 We recognise the need for adequate working
time rules for mobile workers in inland waterway transport. But
we share the Government's view that this proposal is inappropriate
for the UK's circumstances. Moreover, we are concerned that a
seemingly precipitate push to agree the proposal will not allow
the Government time to properly consult the industry or make an
adequate assessment of the potential impact. Therefore we ask
the Government to press the Presidency to allow sufficient time
for the necessary consideration of the issues. We will consider
this matter again when we have more information from the Government
about its consultations and impact assessment; meanwhile the document
remains under scrutiny.
Full details of the documents:
Draft Council Directive implementing the European Agreement concluded
by the European Barge Union (EBU), the European Skippers Organisation
(ESO) and the European Transport Workers' Federation (ETF) concerning
certain aspects of the organisation of working time in inland
waterway transport: (36216), 11688/14 + ADDs 1-3, COM(14) 452.
Background
11.7 Directive 2003/88/EC, the Working Time Directive,
lays down common minimum standards, including daily and weekly
work and rest limits, night work and annual leave, but allows
for more specific rules to be made for specific sectors. Article
155 TFEU provides for the possibility of a European Social Partners'
Agreement (SPA) between management and labour being implemented
by Council decision on a proposal from the Commission.
11.8 The European Barge Union, the European Skippers
Organisation and the European Transport Workers Federation, the
sectoral social partners, have concluded an SPA on specific working
time rules for mobile workers in inland waterway transport. They
have asked the Commission to propose that the Council should decide
to implement the SPA, in accordance with Article 155.
The document
11.9 The Commission proposes this draft Directive
to implement the SPA on working time for mobile workers in inland
waterway transport, as specific sectoral rules as provided for
in the Working Time Directive. The Commission says that the objectives
are to:
· allow more flexibility for the operations
in inland water transport to balance between periods of high and
low work load;
· ensure minimum health and safety protection
for all mobile workers in the sector; and
· facilitate enforcement of working time
rules, in particular in cross-border situations.
11.10 Rather than detailing the provisions of the
SPA in the draft Directive itself the Commission proposes that
it should be annexed. The articles of the Directive:
· would define the scope;
· provide only for minimum requirements,
leaving the Member States free to adopt measures which are more
favourable to workers in the area concerned, the aim being to
explicitly guarantee acquired levels of protection of workers
and ensure that only the more favourable standards of occupational
protection apply; and
· apply the usual provisions on transposition
(by 31 December 2016) into the Member States' national law, including
the obligation to provide for effective, proportionate and dissuasive
penalties.
11.11 The SPA:
· applies to all mobile workers, whether
members of the navigational crew or other shipboard personnel
(such as "hotel" staff on large passenger ships);
· applies to all commercial operations,
with particular specific (slightly more stringent) provisions
for passenger ships;
· does not cover those who own and operate
their own vessel — thereby excluding the small number of
traditional narrow boats in the UK operating semi-commercially;
· is based around a standard daily working
time of eight hours and an average weekly working time of 48 hours,
but allows that average to be calculated over a "reference
period" of up to 12 months;
· allows however, within that reference
period, a maximum working day of 14 hours and a maximum working
week of 84 hours (72 hours on passenger vessels);
· allows a maximum of 31 days to be worked
consecutively and sets rules regarding rest days within or between
periods of work;
· specifies minimum daily and weekly rest
periods;
· provides scope for exceptions in emergency
situations;
· provides special protection for those
who work at night, both by limiting maximum hours worked at night
and specifying the requirement for health assessment for those
moved from day work to night work and those under 18 years of
age, by limiting the conditions in which they can be required
to work at night;
· sets the minimum period of paid annual
leave at four weeks;
· makes rules for record keeping to allow
compliance to be checked;
· gives all workers covered the right to
an "annual free health assessment"; and
· includes general provisions to ensure
the health and safety protection of workers, including consideration
of working patterns.
11.12 The draft Directive is accompanied by the Commission's
analysis of the socio-economic impact of implementing the SPA.
The Government's view
11.13 In her Explanatory Memorandum of 30 July the
Parliamentary Under-Secretary of State, Department for Transport
(Claire Perry), explains that, as the proposed Directive is based
on a SPA, there is no scope for negotiating variations in the
standards agreed and that normally a request to convert a SPA
into a Directive can only be accepted or rejected. She then discusses
a number of points of interest for the Government.
11.14 The Minister says first that:
· the Government accepts that there are
weaknesses in the current EU regulations for mobile workers on
inland waterways, which allow the maximum 48 hour week to be averaged
over up to 17 weeks (and longer in certain circumstances), with
no daily or weekly limits — the sole requirement being for
rest to be "adequate", with no definition of what might
be considered "adequate";
· with the Merchant Shipping (Inland Waterways:
Working Time) Regulations 2003 the UK addressed this weakness
by introducing a requirement for a minimum of 77 hours of rest
per week, for safety reasons, in line with seafarers' rules;
· unlike the main Working Time Regulations
1998 as amended (which implement in the UK the main Working Time
Directive), there is no provision in the 2003 Regulations for
workers to "opt out" of the maximum 48 hour week average;
and
· as lack of an opt-out in the draft Directive
is, however, in line with other highly regulated sectors, such
as mobile road transport workers, the Government is content to
accept this aspect of the proposal.
11.15 Next the Minister says that:
· clarity is needed on the intended meaning
of "mobile workers";
· the definition given is any "travelling
personnel", but this may mean day workers who travel with
the vessel during the day but return home at night, or may only
mean those who stay on and travel with the vessel over more than
one day;
· because of the limited length of UK waterways,
there are few operations where mobile workers live on board and
none where they stay on board for more than a few days at a time;
· if workers who never stay on board the
vessel are excluded, the implication in terms of cost to the industry
is small in absolute terms; and
· any cost increase is likely, however,
to have a severe impact on the viability of those operations which
are affected — nearly all inland waterway businesses in
the UK are SMEs.
11.16 In relation to possible impacts, overall, the
Minister says that:
· in the majority of UK operations, the
proposed limits on working time and rest hours would have no practical
impact, since few operations would currently exceed those limits;
· in the UK the majority of operations are
passenger day trips and evening parties, with a much smaller number
of cargo operations some of which operate part-time (for example,
gravel barges on the Trent and Humber, making a three-day trip
between Goole and the gravel pits on the Trent, once a week);
· in response to the Commission's consultation
on these proposals with Member States, the Government raised concerns
about the rigidity of the rules which may not be conducive to
working on the smaller tidal rivers, where operations can be severely
constrained by the tides;
· in principle, for safety reasons the Government
would support minimum daily rest and maximum hourly work provisions;
· it believes, however, that some flexibility
is needed to allow for the constraints of tidal operations, provided
that compensatory rest is available subsequently;
· the SPA does not allow for compensatory
rest arrangements, other than for emergencies — since tides
are predictable, they do not fall under this concession;
· the UK inland waterways industry is both
small in number and small in scale compared to the major EU waterways,
and (except for one waterway between Northern Ireland and the
Republic of Ireland, which currently has one small Irish flag
passenger ship operation) has no opportunity for international
trade;
· the Government questions the value of
imposing EU regulations aimed at harmonising cross-border operations
on UK waterways where there is no significant cross-border trade;
· as such, UK operators are not in competition
with inland waterway transport operators on other waterways; and
· the additional costs of compliance with
the proposed Directive, while not high in absolute terms, would
further damage the competitiveness of the sector in comparison
with road and rail.
11.17 The Minister tells us that the Government
also has concerns about the requirement for annual free health
assessment for all those working on inland waterways, which is
considered to be an unnecessary burden, compared to other transport
sectors, where health assessments are only required for those
moving from day work to night work and where less frequent medical
examinations are the norm.
11.18 The Minister, noting that possible concerns
about the representativeness of the organisations which negotiated
the SPA are addressed in the Commission's explanatory memorandum
introducing the draft Directive, says that:
· the Commission argues that the organisations
have representation on the employers' side from nine Member States
and on the workers' side from 17 Member States, including the
UK;
· it points out that organisations from
other Member States not represented by the EU bodies were given
the opportunity to comment on the proposals but no comments were
received; and
· it is not clear, however, whether, at
that stage, the consultation was on the basis that the SPA would
become a Directive applying to mobile workers on all EU waters.
11.19 The Minister then summarises the situation
thus:
· while accepting the validity of the objectives
of the proposed Directive and the potential safety benefits of
maximum daily working time and minimum daily rest, the Government
has concerns about the relevance of the SPA to the UK inland waterways
industry;
· it would therefore prefer a national regime
for vessels in purely domestic operation, which could apply equivalent
standards but take account of the particular characteristics of
domestic operations;
· the Government will therefore seek support
from other Member States not linked to the main EU waterway network
(for example, Italy, Portugal, Spain, Lithuania, Scandinavian
countries) to challenge the scope of the proposed Directive in
order to limit the application of the agreement to cross-border
inland waterways transport, and possibly to the major routes on
the Trans-European Transport Network, provided that national rules
provide a similar or equivalent level of protection, taking into
account national characteristics;
· on issues of social protection the Government
recognises, however, that support from other Member States may
be limited;
· therefore, if unsuccessful in limiting
the application of the Directive, it will seek clarification on
the application of the proposal to the types of operation in the
UK, with a view to minimising the numbers of UK operations that
would be bound by the standards; and
· the Government would however accept that
such a limitation should be on the condition that national rules
provide an equivalent level of protection.
11.20 The Minister tells that:
· although UK industry organisations have
been approached for a view on the proposals, no response has been
received in the time available;
· further consultation to establish the
likely impact of the proposals will be conducted during the negotiation
stage of the draft Directive; and
· the Scottish Government has confirmed
that it does not expect the proposal would affect operators on
canals in Scotland, the Northern Ireland Administration is content
with the proposal and the Welsh Assembly has not commented.
11.21 The Minister also elaborates on an assessment
of the impact of the proposal and the financial implications,
saying that:
· subject to clarification of the definition
of "mobile workers", because of the small number of
businesses and individuals affected in the UK, the costs are expected
to be small overall;
· costs would arise from the possible need
for additional crew members where minimum hours of rest might
otherwise be breached in tidal rivers, a larger pool of crew for
those operating at night to keep individual night work below limits
and health assessments for all mobile workers;
· the current regime for inland waterway
and for other working time regimes is for health assessment where
workers transfer from day work to night work — the SPA would
require all workers to have a free annual health assessment;
· current advice to UK industry makes health
assessments for fitness for night work a relatively low-cost exercise,
based on self-assessment, with only those identifying relevant
health problems being referred to medical professionals;
· a similar approach could minimise the
impact of the SPA requirement — however, because it would
apply to all workers, it would be an administrative burden which
does not apply to other sectors;
· costs would arise for record keeping —
records of hours worked are required to be kept under the current
regulations, but the new requirements introduce monthly endorsement
by the employer and the worker, and a requirement for workers
to be given a copy of their hours of work record each month;
· both of these elements exist in the seafarers'
hours of work regime, and are a good principle for those continually
at their employers' disposal on a ship;
· the Government considers, however, that
these requirements would introduce an excessive administrative
burden for the majority of UK inland waterway transport workers,
who attend work daily;
· for workers currently working excessive
hours, the proposed Directive would provide health and welfare
benefits arising from the tighter controls on their working hours;
· however, the benefits set out in the Commission's
proposal relating to transparency and consistency in enforcement
in cross-border operations would not apply to UK operations;
· the draft Directive is expected to bring
savings to the operators and authorities on the main, cross-border
waterway arteries by harmonising currently diverse regimes and
making both compliance by operators and enforcement by authorities
more efficient;
· those will not, however, be realised by
those on non-linked waterways, who will nevertheless have the
additional costs of compliance;
· although the costs would be relatively
low in absolute terms, in the UK any additional cost will undermine
their competitiveness, both in the passenger (leisure) sector
and in waterways freight;
· the draft Directive does not contain prescriptive
requirements for enforcement of the regime;
· costs to the Maritime and Coastguards
Agency as the enforcing authority for the regulations could be
contained by continuing current practice on inland waterways,
whereby inspection of working hours would normally only be carried
out if there were complaints from workers or an incident;
· there are issues with enforcement because
workers on major waterways such as the Thames often work for more
than one employer — the proposal does not effectively address
this issue; and
· once it has greater clarity about the
scope of the proposals (for example, application to non-linked
waters and the definition of "travelling personnel"),
the Government will prepare an impact assessment.
11.22 Finally, the Minister tells us that it is possible
that a political agreement on the draft Directive may be sought
at the Employment and Social Policy Council meeting on 16 October.
Previous Committee Reports
None.
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