Select Committee on European Scrutiny First Report



Draft Directive concerning the organisation of working time for mobile
workers performing road transport activities, excluded from the
Working Time Directive.

Legal base: Article 137 EC; co-decision; qualified majority voting
Department: Environment, Transport and the Regions
Basis of consideration: Minister's letter of 7 December 2000
Previous Committee Report: HC 23-xxv(1999-2000), paragraph 1 (19 July 2000).
To be discussed in Council: 20-21 December 2000
Committee's assessment: Politically important
Committee's decision: Cleared


  9.1  This draft Directive is intended to provide more detailed rules for the organisation of the working time of mobile workers in the road transport sector than those contained in the "Horizontal Directive"[23], concerning, in particular, breaks and rest periods. It has proved very difficult to negotiate. When we last considered the proposal (in July) we commented on the tensions within it — both between the need to protect the employed driver and the wish not to impose undue burdens on small businesses and between the latter (and the position of the self-employed) and issues of road safety. We asked the Minister for Competitiveness (Mr Alan Johnson) whether he considered that the proposal should do more to protect drivers from themselves.

  9.2  The Parliamentary Under-Secretary of State at the Department of the Environment, Transport and the Regions (Lord Whitty) has now written, bringing us up to date on the progress of negotiations, and responding to the issues we raised. The Minister explains that, although the Department of Trade and Industry has overall responsibility for Working Time legislation, his Department has been involved in the negotiations in the Transport Council on the proposals.

Progress of negotiations

  9.3  The Minister outlines the progress that has been made in key areas of the proposal, as follows:

    "The self-employed: ... The French Presidency has proposed a compromise under which the self-employed would be excluded from the Directive but, two years after its implementation, the Commission would review the impact of their exclusion. At this stage, it is not clear if there is to be a presumption that the self-employed will be included after the review. At the very least however, we can expect the Commission to come forward with new proposals to include the self-employed, if it finds evidence that their exclusion has had an adverse effect. Along with most other Member States, we are prepared to support this compromise. There is no chance that agreement could be reached in the Council for the self-employed to be included when the proposals are first implemented. So the compromise is the only option open to us, if a common position is to be reached at the Transport Council on 20-21 December.

    "Scope: It has also been agreed that the scope of the road transport proposals should be limited to mobile workers who are already subject to European drivers' hours legislation (3820/85)[24]. This means that drivers of smaller vehicles (lorries under 3.5 tonnes and smaller public service vehicles) and drivers of local bus services will not be covered. However, they will of course retain the protections provided for them under the Horizontal Directive ...

    "Night work: Most Member States agree that the original night work provisions should be revised. After consulting both sides of industry and our safety experts, we put forward a proposal that simplified the definition of night work and allowed night workers to work up to 10 hours a day. We believe the revised proposals would encourage more regular shift patterns for night workers and should also minimise the threat of having more lorries on our roads during the day. The revised proposals were well received in the Working Group and we expect them to be incorporated into the text which will go before the Transport Council.

    "Definition of working time: Another issue which has been discussed at some length in Working Group is a technical one, about the definition of working time ... As drafted, we believe the provisions would have put at risk the continued double-manning of vehicles and would have counted periods when a driver quite clearly was not working as working time. A revised text will go to the Council which we and most other Member States believe overcomes these difficulties.

    "60 hour maximum working week and individual opt-out: We have continued to argue that a maximum working week of 60 hours would create serious problems for our haulage and bus/coach industries because of the shortage of skilled drivers and the need to purchase many new vehicles. And we have maintained our position that individuals should be allowed to opt-out of working time provisions should they so choose. However, we have received very little support on these proposals from other Member States. We are now intending to seek a derogation on the maximum working week which would initially allow a maximum of 65 hours per week but would then be reduced to 60 hours a few years after implementation of the Directive. Even a 65 hour week is significantly less than the maximum that is currently permitted under drivers' hours legislation.

    "On the individual opt-out, the Commission is already committed to review in 2003 the opt-out provisions in [the Horizontal] Directive... We still believe that the most coherent approach would be to retain the rights within this Directive and then to review the position of mobile workers alongside workers in all other sectors of the economy in 2003. And this is the position we intend to take at the Transport Council."

Response to issues raised by the Committee

  9.4  The Minister then turns to our concerns, saying:

    "Turning now to the specific issues which you raised in your reply to Alan Johnson's earlier letter, you might be interested to know that I agree with your conclusion about tensions in the Government's position. Indeed it would be odd if it were not so, given the complexity and implications of these proposals on the road transport sector. We have always been firmly committed to implementing working time legislation so that employees have adequate protection from exploitation by employers. However, it would not be sensible to support proposals which have a disproportionate cost on business, and where, as with the night work proposals, they would actually compromise road safety.

    "I appreciate your concern about the adequacy of the protection afforded to drivers of smaller vehicles (eg taxis, vans, pizza delivery etc). However, I agree with Mr Johnson's earlier response which said the provisions under the horizontal Directive would be adequate protection. There are a number of reasons for this. First, many of the drivers in these vehicles are not currently subject to any regulations which limit their hours or driving times. Many of the businesses which employ them are small companies which operate in highly competitive markets and with limited resources. Consequently, we believe the introduction of the main provisions of the Horizontal Directive by itself ...will have an enormous impact on employers and employees, even without the more restrictive proposals for mobile workers...

    "Secondly, we are not convinced that the extra protection afforded under the sector specific proposals, would add much value in this sector. For example, removing the individual opt-out and adding night work restrictions would have an adverse impact on the taxi and private hire sector, where in any case the nature of the work means that drivers do have periods of 'rest' (ie periods when they are not driving) between hirings. It could also have a knock-on effect on less profitable routes, for examples reducing the number of taxis and minicabs serving rural communities.

    "Third, we are very concerned about how we could effectively enforce these provisions... In our view, there would be a very real risk that the law would fall into disrepute. For these reasons, we do not believe that the current Directive should be applied to this group of mobile workers. This is a view which is shared by all but one of the other Member States.

    "Turning to the second issue you raise, concerning the link between protecting workers and ensuring safety on our roads. Maintaining road safety is our top priority, which is why we were concerned about the adverse effects of the Commission's original night work proposals. You are right to be concerned about the road safety implications of the findings in the Commission's report on the 1995-96 implementation of 3820/85, which suggest that an unacceptable number of offences were committed against driving times. At the last Transport Council, we, along with other Member States, acknowledged this problem and asked the Commission to come forward with detailed proposals to enhance enforcement of 3820/85.... The Regulation addresses the real issues of road safety which is why we would prefer to rely upon it — perhaps with some of the existing loopholes filled — than rely on the proposed working time Directive...

    "Finally, your question about the right of individuals to work more than 48 hours is an interesting one...

    "Whilst a 48 hour average may seem a reasonable limit to most people, there are some who will want to work longer. We do not believe that there is a compelling case for refusing people the right to opt-out, if that is what they want. It is an unfortunate fact of life that the road transport sector is characterised by a long hours culture, with modest profits and modest pay for employees. Some employees may need to work longer hours in order to make ends meet. We feel it would be wrong for us to deny them this option."

  9.5  The Minister tells us that he believes an agreement which will be acceptable to both sides of industry and which meets the UK's safety and environmental concerns is now possible. He hopes that we will be able to clear the document so that the UK can support a common position at the Transport Council on 20-21 December, if the circumstances are right.


  9.6  We thank the Minister for his full and helpful letter. After nearly two years of negotiation, we can understand his relief that an acceptable agreement appears to be in sight, even if it involves a short-term compromise in relation to self-employed drivers.

  9.7  Although the Minister says that road safety is the top priority, his letter still seems to reflect the tension we noted earlier, and to demonstrate a pragmatic concern to disturb the status quo as little as possible. In particular, it is noteworthy that he accepts the long hours, modest profits and low-pay culture of the road transport sector as "an unfortunate fact of life", rather than as a case for reform.

  9.8  In the circumstances, and given that our questions have been answered, we clear the document. Nevertheless, as we did in relation to sea fishermen, we urge the Government to impress on both sides of the road transport industry the importance of health and safety (including the safety of others) in this dangerous work.

23  "Horizontal Directive" concerning sectors and activities excluded from the Working Time Directive: (21120) - ; see HC 23-xv (1999-2000), paragraph 8 (19 April 2000) and HC 23-xvi (1999-2000), paragraph 7 (10 May 2000). Back

24  OJ No.L370, 31.12.1985, p.1. Back

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