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MEASURES TO IMPLEMENT DIRECTIVE 2000/34/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, AMENDING COUNCIL DIRECTIVE 93/104/EC CONCERNING CERTAIN ASPECTS OF THE ORGANISATION OF WORKING TIME TO COVER SECTORS AND ACTIVITIES EXCLUDED FROM THAT DIRECTIVE

Section 1: Summary

Introduction

1.1. Some sectors are excluded from the Working Time Regulations 1998, which implement the European Working Time Directive (93/104/EC). A new working time directive, known as the Horizontal Amending Directive, extends working time protections to sectors previously excluded (road, rail, air, sea, and inland waterways transport, seafishing, offshore work and the activities of junior doctors). The Directive provides for implementation by 1 August 2003. This summary provides background on the Working Time Regulations 1998 (SI 1998/1833) and describes the Government’s approach and timetable for implementing the Horizontal Amending Directive in Great Britain (the implementation of the Directive in Northern Ireland will be subject to a separate consultation). In addition there are three sector specific directives covering seafarers and some workers in the road transport and aviation sectors. A brief summary of the sector specific directives is included for information only. A fuller description of the amendments to the Working Time Regulations (WTR) can be found in the Commentary:

Guidance on the application of the existing working time regulations can be found on the DTI website - see Your guide to the Working Time Regulations - Regulatory Guidance (link on right hand side).

The Working Time Directive

1.2. The Working Time Directive was adopted under Article 118a of the Treaty establishing the European Community on 23 November 1993. The Working Time Directive has been implemented in Great Britain through The Working Time Regulations 1998 (SI 1998 No. 1833) on 1 October 1998 (a consolidated text of the current Regulations can be found in Section 4:

The Directive was implemented in Northern Ireland by the Working Time Regulations (Northern Ireland) 1998 (SR 1998 No. 386) on 23 November 1998. Both of these instruments provide for:

• An average 48-hour working week;
• Four weeks' paid annual holiday;
• 1 day's rest in 7 (or 2 in a fortnight);
• 11 hours' rest between working days;
• a 20-minute rest break if the working day exceeds 6 hours
• health assessments for night workers;
• an 8-hour limit on night working;

1.3. In line with the European Directive on the protection of young people at work (94/33/EC), adolescent workers benefit from additional entitlements to 2 days' rest per week, 12 hours' rest between working days and a 30-minute rest break if the working day exceeds 4½ hours.

The Horizontal Amending Directive

1.4. When adopted in November 1993, the Working Time Directive (93/104/EC) excluded the air, rail, road, sea, inland waterway and lake transport, sea fishing, offshore work and the activities of doctors in training as it was decided that these sectors required individual specific legislation to accommodate working time measures. A further Directive covering these sectors, known as the Horizontal Amending Directive (HAD) (2000/34/EC), was adopted on 1 August 2000.

1.5. Three further sector specific Directives have also been adopted:

• The Road Transport Directive(RTD) which was formally adopted on 23 March 2002 makes provision in respect of breaks, rest periods and working timefor thosesubject to Council Regulation No. 3820/85 on the harmonisation of certain social legislation relating to road transport, otherwise known as “the European drivers’ hours regulations”. The RTD is required to be implemented by March 2005 and the Department for Transport will be consulting on its proposals to do this in due course.
• The Aviation Directive,  concluded by the Social Partners in the civil aviation sector, limits annual working time of mobile personnel (as defined inn the Directive) to 2000 hours, covers some elements of standby time and restricts flying time to 900 hours. The Directive also requires "appropriate" health and safety protection for all mobile personnel and contains provisions for a monthly and yearly number of rest days. Member States have until 1 December 2003 to implement the Directive. The Department for Transport will be consulting on its proposals to do this shortly.
• The Seafarers' Directiveon the organisation of working time, concluded by the social partners, is based on the International Labour Organisation (ILO) Convention No. 180. The Directive provides for a maximum working week of 72 hours and 14 hours' rest in any 24 OR a minimum weekly rest requirement of 77 hours and 10 hours in any 24-hour period. It also provides for 4 weeks' paid annual leave and health assessments. The Department for Transport implemented this Directive through the Merchant Shipping ( Hours of Work) Regulations 2002 (SI 2002/2125) which came into effect on 7 September 2002.

1.6. The HAD extends the provisions of the Working Time Directive (WTD) to:

• all non-mobile workers in road, sea, and inland waterways transport and  seafishing;
• the activities of junior doctors;
• to those workers in aviation not covered by the Aviation Directive; and;
• to all workers in the rail and offshore sectors.

1.7. The HAD also provides more limited protection to mobile workers involved in the road transport sector:

• those not covered by the RTD will be entitled to an average 48-hour working week, 4 weeks' paid annual holiday, health assessments for night workers and provision for adequate rest.
• those subject to the RTD will be entitled to health assessments if a night worker and 4 weeks' paid annual leave.

1.8. This means that with very minor exceptions all workers (mobile and non-mobile) in all sectors will be covered either by the Working Time Directive, as amended by the Horizontal Amending Directive, or the sector specific directives.

1.9. Although most of the above will be implemented by amending the existing Working Time Regulations, some of the rights and protections conferred by the HAD will be implemented by amending the existing regulations that cover the different sectors. For example, the Department for Transport will be implementing the HAD in respect of sea fishermen, and mobile workers in inland waterways through amendments to the Merchant Shipping Act.

Proposed Working Time (Amendment) Regulations 2003

1.10. Article 1 of the HAD removes the exclusion of road, rail, air, sea, inland waterways and lake transport sectors, sea fishing, offshore work and the activities of junior doctors from the scope of the Working Time Directive. In order to implement the HAD, the Government plans to introduce regulations amending the Working Time Regulations, which will have the following effect:

• General: to extend the existing working time regulations in full to non-mobile workers in the road, sea, inland waterways, and sea fishing sectors; to all workers in the railway and offshore sectors and to all workers in aviation not covered by the Aviation Directive. Junior doctors will be covered by these entitlements from 1 August 2004 with the exception of the weekly working time limits. These will be phased in over a further transitional period.
• Workers who will be covered by the Road Transport Directive: New regulation 18(2) of the Working Time Regulations, inserted by draft regulation 5, excludes those subject to the Road Transport Directive (2002/15/EC ) from the provisions of the Working Time Regulations with the exception of the rights to paid annual leave and health assessments for night workers.
• Sector specific directives: New regulation 18(1) of the Working Time Regulations, inserted by draft regulation 5, disapplies the Regulations where other European Community instruments contain more specific requirements relating to the organisation of working time. The groups affected are seafarers, workers subject to the Road Transport Directive and mobile workers in civil aviation subject to the Aviation Directive
• Sea fishermen: The Department for Transport will be implementing the HAD in respect of sea fishermen through amendments to the Merchant Shipping legislation.
• Mobile workers on Inland Waterways: The Department for Transport will be implementing the HAD in respect of these workers through amendments to the Merchant Shipping Act.
• Mobile Workers: Draft amending regulation 8 inserts a new regulation 24A of the Working Time Regulations to exclude mobile workers from the night work limits, and daily, weekly and in-work rest breaks. This is in line with new Article 17A of the Working Time Directive (inserted by the HAD), which disapplies these entitlements to mobile workers. Instead, provision is made for adequate rest (see definition in new paragraph 9 of Article 2, inserted by Article 2 of the HAD).

1.12. A Summary table at the end of this section sets out the provisions of the Working Time Regulations (as amended by the Horizontal Amending Directive) that will apply to each of the excluded sectors.

1.13. The Working Time Regulations implement those provisions in the Young Workers Directive (94/33/EC), which provide adolescent workers with longer periods of rest and health assessments if working at night. The Government is in the process of implementing stricter working time and night work provisions for adolescent workers. Adolescent workers in the excluded sectors will be able to make use of these additional rights and entitlements once the legislation covering the relevant sectors is in force in Great Britain unless they are covered by a sector-specific directive.

Consolidation

1.14. The European Commission has started on the process of consolidating the Working Time Directive and the Horizontal Amending Directive. We will consider consolidating the Working Time Regulations for Great Britain in due course.

The Government's Policy Approach on the HAD

1.15. The Government proposes to apply the existing provisions of the Working Time Regulations to the excluded sectors in the same way as they apply to those presently covered, for example in relation to the applicability of the of derogations and the time keeping requirements. In implementing the original Working Time Directive, the available derogations and flexibilities were maximised to enable workers and employers to come to sensible arrangements in their work place and the Government sees no need to change this approach. We propose to make maximum use of the specific derogations for the HAD; for example doctors in training.

1.16. The Horizontal Amending Directive will be implemented by the Working Time (Amendment) Regulations 2003, set out in dradt in Section 3:

Costs and benefits

1.17. The Draft Regulatory Impact Assessment

included with this Consultation Document incorporates an approximation of the costs that may arise for business from the proposed measures. It is estimated that approximately 120,000 workers will benefit from the minimum daily and weekly rest period entitlements; 20,000 from the working time limits for night workers; 50,000 from the paid annual leave entitlements; 160,000 from the weekly working time limits and 210,000 from the requirements for employers to offer health assessments to night workers. The overall cost is estimated at around £170 million per annum.

Conclusion

1.18 The proposed Working Time (Amendment) Regulations 2003

1. Will provide all non-mobile workers in the road, sea and sea fishing sectors with an average 48-hour working week, 4 weeks’ paid annual leave, 11 hours’ rest between working days, 1 day’s rest per week, a statutory in-work rest break, impose limits on night work, require employers to offer free health assessments to night workers and provide special protections for young workers. These regulations will extend to doctors in training from 1 August 2004 with the exception of the weekly working time limits. These will be phased in over a further transitional period.

2. The above provisions will also apply to all workers in the rail and offshore sectors and to all workers in aviation not covered by the sector specific Aviation Directive.

3. In road transport, mobile workers who will be covered by the recently adopted Road Transport Directive, will be entitled to 4 weeks' paid annual leave, and health assessments if a night worker ( as neither of these working time provisions form part of that Directive). Mobile workers not covered by the Road Transport Directive will be entitled to an average 48-hour working week, 4 weeks' paid annual leave, health assessments if a night worker and provision for adequate rest.

Next steps and timing 

1.19. The amendments to the existing Working Time Regulations are highlighted in boxes within the text of the commentary. You are invited to make comments on the amendments and other issues covered by the consultation. Please note that we shall assume that you do not mind your reply being made public unless you advise us otherwise. If you want all or part of your reply to be treated as confidential, please say so clearly in your reply.

1.20. The Government is required to implement the HAD by 1 August 2003. We propose to make the new regulations three months prior to their coming into effect, and produce guidance covering their application to the excluded sectors in good time. In order to meet the timetable, we invite comments on the draft regulations by 31 January 2003.

HORIZONTAL AMENDING DIRECTIVE SECTOR BY SECTOR SUMMARY

Footnotes

(1) Average 48-hour working week, 4 weeks' paid annual leave, 1 day's rest in 7 (or 2 every 14 days), 11 hours' rest between working days, 20 minutes' rest break if the working day is over 6 hours, health assessments for night workers, limits imposed on night working and special protections for young workers.

(2) Average 48-hour working week, 4 weeks' paid annual leave, health checks for night workers and provision for adequate rest.

(3) Details of the sector specific Directive are for information only and are not dealt with by the implementation of the Horizontal Amending Directive.

(4) Mobile workers covered by the Road Transport Directive will receive 4 weeks' paid annual leave and the right to receive health assessments if a night worker.