Select Committee on European Communities Seventeenth Report


19.  COMMISSION'S FINAL PROPOSALS ON SECTORS AND ACTIVITIES EXCLUDED FROM THE WORKING TIME DIRECTIVE (13526/98)

Letter from Lord Tordoff, Chairman of the Committee, to Ian McCartney MP, Minister of State, Department of Trade and Industry

  Your Explanatory Memorandum (EM), dated 11 January, an the above proposals was considered by Sub-Committee B at its meeting this morning. Various issues were raised on which the Committee would appreciate clarification.

  First, you say that the Government are currently seeking views of interested parties in the relevant sectors to ensure that the proposals are balanced, sensible and accommodate your concerns (EM paragraph 23). The Committee would like to know whom you are consulting, on what questions, and when you expect to complete that consultation.

  Secondly, paragraph 25 states that the Government will endeavour to ensure that the proposals take account of the operational requirements of the relevant transport sectors, do not adversely affect competitiveness and do not compromise current safety requirements. The Committee would therefore like to know how those objectives can be achieved with this Directive in advance of the European Commission's proposals for "own account" road transport operators, which are not published.

  Thirdly, you state in paragraph 29 that you believe the proposals are high on the agenda for the German Presidency and anticipate that the matter will be taken forward at an early stage. We would appreciate clarification of how fast negotiations will be proceeding and what you perceive the likely timetable for agreement.

  You will be aware that the proposals were also sifted to Sub-Committee F. We look forward to receiving your answers to these points. In the meantime, the scrutiny reserve is maintained.

11 February 1999

Letter from Ian McCartney MP, Minister of State, Department of Trade and Industry, to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 11 February.

  We have consulted both employer and worker representatives in the affected sectors, inviting general comments on any aspects of the proposals. We have met with representatives and asked for initial written views by 12 February. Of course, given the nature in which the proposals will develop over time, we will continue to liaise with interested parties in these sectors.

  The Commission have proposed that the draft directive for the road transport sector would apply to drivers generally including "own account" drivers. I do not expect a separate proposal specifically on the working time of "own account" drivers.

  As I indicated, we believe the Presidency attach importance to the proposals and they have already been discussed at a number of working groups. However, it is too early to tell when agreement might be reached. The majority of Member States have not been in a position to discuss the proposals in detail. As a result there has not been much progress to date. I am sorry I cannot be more specific at this stage.

25 February 1999

Letter from Lord Tordoff, Chairman of the Committee, to Ian McCartney MP, Minister of State, Department of Trade and Industry

  Thank you for your letter of 25 February which was considered by Sub-Committee B at its meeting this morning. The Committee notes that progress is proving less rapid than anticipated in paragraph 29 of your EM.

  2.  The Committee attaches great importance to adequate consultations with those affected by such proposals and had hoped to hear more about the consultations in this case than offered in your letter, particularly as that was written after the consultation had ended. We should therefore be grateful for:

    (a)  a fuller indication of the interests consulted and over what period;

    (b)  confirmation that there was no particular set of key questions to which their attention was drawn;

    (c)  a brief summary of the main points made in response to that consultation (see also paragraph 5) and the impact these are having on the Government's policy; and

    (d)  an indication of the likely future liaison arrangements to which you refer.

  3.  There remains some confusion in the Committee's mind about the position of "own account" road transport operators. Paragraph 13 of your Explanatory Memorandum (EM) of 11 January 1999 and your letter of 25 February indicate that the proposals on the table provide for the Road Transport Directive to cover all drivers. Paragraph 7 of the Commission's own EM seems to suggest precisely the opposite, referring to a separate proposal with regard to workers in "own account" road transport.

  4.  The exclusion of owner drivers from the Working Time Directive could have serious road safety implications. Additionally, the Committee fears that a significant shift to owner-driver status could be caused by such exclusion with further adverse implications for road safety.

  5.  We should be grateful if you could clarify the position for us—and, at the same time, indicate what reaction to these matters there was from representatives of the employers and workers concerned in the consultations mentioned above.

  6.  In the meantime, the scrutiny reserve is maintained.

  7.  Because of the implications for road safety, I am copying this letter to the Lord Whitty at DETR for his information.

29 April 1999

Letter from Lord Tordoff, Chairman of the Committee, to Ian McCartney MP, Minister of State, Department of Trade and Industry

  Further to my letter of 29 April, Sub-Committee B noted at its meeting this morning that the Parliamentary Under-Secretary of State, Lord Sainsbury of Turville, recently answered two written questions from Lord Berkeley on the application of the Working Time Directive to HGV owner-drivers [WA 101, 6 May 1999, HL 2082 and 2083]. Lord Sainsbury's concluding words were that:

    "the Government do not believe that the proposals need apply to the self-employed, as they can determine their own hours of work. The existing drivers' hours regulations protect road safety."

  As the Committee understands it, these existing regulations relate only to driving time, setting a maximum of nine hours a day within a weekly total. They say nothing about additional hours spent on other activities. It is, for example, quite possible for an owner-driver to be involved in substantial loading or other work before setting off on his journey and thus still be within the legal driving limit at the end of a working day of 15 hours or more—hence our concern about road safety issues. It is this loophole that we understood was addressed by the latest Working Time Directive proposals.

  We should therefore be grateful if you would extend your reply to my letter of 29 April as necessary to cover the additional context set out above. At the same time, it would be useful also to know what you understand of the position of other Member States on this issue.

13 May 1999

Letter from the Rt Hon Ian McCartney MP, Minister of State, Department of Trade and Industry, to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 29 April regarding the Committee's further observations on our EM, produced in respect of the European Commission's final proposals on sectors and activities excluded from the Working Time Directive.

  As was highlighted in my previous correspondence, worker and employer representatives in all the sectors concerned were initially asked to pass on their concerns/preferences on the Commission's proposals. A list of the bodies who have been consulted, the names of which were supplied by the sponsoring Departments, is attached (not printed). The views of the various organisations were discussed at length in meetings with officials, who were able to provide an update as to the latest state of play in Working Groups (proposed changes to the Directive text etc) and to take account of further comments, while indicating the limits as to what was likely to be achievable.

  You have asked about the consultations that were undertaken on these proposals. I attach at Annex A a list of those consulted, at Annex B, a list of responses, and at Annex C, a summary of those responses (not printed).

  I note your comments as to the position of "own account" road transport operators. However, I should emphasise that "own account" is a slightly confusing term and does not refer to the self employed, but to those drivers who are employed by non-road transport companies such as Sainsbury's. I believe the Commission's EM refers to a previous disagreement between the Commission and some Member States, whereby the Commission argued they were covered by the original Working Time Directive and some Member States argued they were not. This issue has yet to be tested by the courts. However, this debate will shortly be overtaken as a result of extensions to excluded sectors, which will mean EU Working Time controls will apply to all employed drivers. Where there are sector specific rules these will apply instead of the "horizontal" directive. It was initially proposed that the road transport directive would apply to all drivers, but the question of scope is very much a main area of discussion at the moment.

  We are obviously mindful of the road safety aspects in implementing any new measures, but at the same time would not wish to impose restrictive burdens where there is no reason on road safety grounds for doing so. The driving hours rules, which apply to both employed and self employed, are designed to ensure drivers do not drive such long hours that they are a danger on the road.

  You might like to note that I have arranged for a revised Explanatory Memorandum to be presented to both Houses for further consideration. No new text has been formally laid in the House but the Presidency hopes to reach a common position on at least some of the Commission's proposals (in particular the "horizontal" Directive and the sector specific proposals relating to seafarers—but not the road transport directive) by the end of May. In view of this, I wish to ensure that Parliament has the opportunity to consider developments before then.

  You also wrote on 13 May regarding existing drivers' hours regulations and road safety protection. I will respond in full to you on this point shortly, but I thought, for the time being, you would wish to see my response to your 29 April letter in time for your forthcoming Committee meeting.

17 May 1999

Letter from the Rt Hon Ian McCartney MP, Minister of State, Department of Trade and Industry, to Lord Tordoff, Chairman of the Committee

  In the light of the forthcoming Social Affairs Council meeting on 25 May I am writing to inform you of my intentions with regard to the European Commission's proposals on the extension of the Working Time Directive to the excluded sectors.

  You will be aware that there is currently a parliamentary scrutiny reserve on all of the European Commission's proposals, covering seafarers, road transport and a general horizontal directive to extend the working time directive to the excluded sectors. However, you will wish to be aware that I now propose to lift the parliamentary scrutiny reserve on the seafarers directives. The measures for seafarers are uncontentious, reflect an ILO convention and have received widespread support from both sides of industry and Government (namely the Department for the Environment, Transport and the Regions who have policy responsibility for this area). I will of course retain the reserves on the horizontal directive where the outcome is uncertain.

  I will obviously report back to you on the result of Social Affairs Council meeting on 25 May.

24 May 1999

Letter from Lord Whitty, Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions, to Lord Tordoff, Chairman of the Committee

  Thank you for sending me a copy of your letter to Ian McCartney of 29 April in which you seek further information on the consultations that have taken place over the Commission's proposals for extending the Working Time Directive. I have also seen your further letter of 13 May.

  I understand that Ian McCartney is to reply to you on all of the points you have raised and I can confirm that this Department has contributed to that reply. However, if you have any further points in relation to DETR interests, perhaps you could let me know.

7 June 1999

Letter from the Rt Hon Ian McCartney MP, Minister of State, Department of Trade and Industry, to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 13 May regarding the Committee's further observations on our EM, produced in respect of the European Commission's final proposals on sectors and activities excluded from the Working Time Directive.

  Sub-Committee B was concerned that the existing drivers' hours regulations were not adequate to protect road safety because they do not place limits on the non-driving work time of HGV owner-drivers. The sub-committee thought that the Commission's current proposals for working time in the road transport sector would address this issue.

  You have referred to two recent written answers given by Lord Sainsbury on the same matter. As his answers made clear the Government does not believe that the proposals to extend the Working Time Directive should apply to the self-employed because they can determine their own hours of work. The Working Time Directive itself does not cover the self-employed. It applies to workers to protect them from being forced to work long hours. We support the principle of extending the protection afforded by the Working Time Directive to employed workers in keeping with wider Government policy to ensure fairness at work and family-friendly employment practice.

  The existing Regulation (3820/85) on drivers' hours imposes maximum limits on the driving time, but it also sets minimum requirements for daily and weekly rest—11 hours a day and a period of 45 hours rest each week. The rest requirements therefore, effectively limit the working day to 13 hours and the working week to an average of 68 hours. We do not have any significant evidence to suggest that there is a major road safety concern and we believe the current requirements are adequate to protect road safety.

  You might like to note that I attended the Social Affairs Committee in Brussels on 25 May. I will submit supplementary explanatory memoranda as soon as we have the latest texts.

7 June 1999

Letter from the Rt Hon Ian McCartney MP, Minister of State, Department of Trade and Industry, to Lord Tordoff, Chairman of the Committee

  Further to my letter of 24 May I thought I would write to up-date you on the discussions at the Social Affairs Council on 25 May. You might like to note that I have arranged for an Explanatory Memoranda to be submitted to explain the proposals agreed at Council on 25 May as they relate t the Horizontal Directive.

  For the sake of clarity I shall spell out precisely what proposals on working time were agreed at the Social Affairs Council in Brussels on 25 May. There were three in all:

    —  a proposal for a Council Directive amending Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, to cover sectors and activities excluded from that Directive ("the Horizontal Directive");

    —  a proposal for a Council Directive concerning the agreement on the organisation of working time of seafarers concluded by the European Community Shipowners' Association (ESCA) and the Federation of Transport Workers' Unions in the European Union (FST); and

    —  a proposal for a Council Directive concerning the enforcement of seafarers' hours of work on board non-EU ships using Community ports, so as to protect the competitive position of EU shipping (with an associated recommendation to Member States to ratify the relevant ILO Conventions to give the Directive the necessary international force.

  As I indicated in my letter of 24 May, I lifted the Parliamentary scrutiny reserves on the two directives relating to seafarers. As my letter made clear those measures have aroused no controversy. They are uncontentious, reflect an ILO convention and have received widespread support from both sides of industry.

HORIZONTAL DIRECTIVE

Junior Doctors

  I also joined the political agreement to the proposals on the table for the Horizontal Amending Directive. One of the key elements of the package on the table from a UK standpoint was the issue of the transitional period for the extension of the Horizontal Amending Directive to doctors in training. As you will be aware this was a highly sensitive matter for the UK and some other Member States.

  After a great deal of discussion over the past few months the Council agreed to a 13 year transitional period for extending the working time provisions to junior doctors which allows a staged approach to reduce junior doctors' hours. This compromise of 13 years was a good one for the UK. It strikes the right balance between extending the 48 hour limit for the working week to junior doctors and ensuring that the standard of patient care in the NHS is maintained by giving the UK time to train the estimated 7,000 extra doctors we will need to comply with the Directive. If the UK had not supported the Presidency compromise at Council there was a real risk that the proposal would have been withdrawn to our disadvantage. I therefore indicated agreement in principle while making clear that the UK maintained the UK's Parliamentary scrutiny reserve.

Sea Fishermen

  I also accepted a deal on applying the working time provisions to sea fishermen which the Presidency put forward as a compromise which sets more flexible requirements for minimum rest or maximum working time than those in the Commission's original proposal. The Government is aware of concerns expressed by the industry about the extension of the working time provisions to the sector but I believe that the deal that I accepted was the best possible. It allows national authorities a greater amount of flexibility in implementation than the Commission's original proposal. The Government will ensure that the industry is consulted closely as to how we intend to implement and we are ready to make full use of the available flexibilities if that would assist the industry.

  The Horizontal Directive will now go to the European Parliament under the co-decision procedure. Formal adoption is therefore likely to occur under the Finnish or Portuguese Presidencies. Political agreement is still oustanding on the Commission's proposed directive for the road transport sector concerning mobile workers involved in road transport activities and self employed drivers. Negotiations have been proceeding slowly and agreement on a common position is likely to be some way off.

  I will of course ensure that the Committee is kept informed on the progress of negotiations on the existing and anticipated sector specific proposals and also co-decision on the Horizontal and Seafarers Enforcement Directive.

21 June 1999

Letter from Lord Tordoff, Chairman of the Committee, to the Rt Hon Ian McCartney MP, Minister of State, Department of Trade and Industry

  Thank you for your letters of 17 May and 7 June in reply to mine of 29 April and 13 May. We also have the Explanatory Memorandum (EM) of 18 May foreshadowed in your letter of 17 May. Thank you also for your letters of 24 May and 21 June about actions on general Working Time Directive matters at the Social Affairs Council on 25 May, and for the EM of 21 June describing the position on working time matters as they now stand. All these papers were considered by Sub-Committee B at its meeting this morning.

  2.  The Committee notes the line taken by the Government at the Social Affairs Council on 25 May. We are concerned that the Committee was not given an adequate opportunity to consider these matters in the normal way. You will not need reminding that it is the Committee's prerogative to lift the scrutiny reserve.

  3.  Returning to the substantive issues raised by the Committee, we were grateful for the fuller material on consultations provided in your letter of 17 May. As noted below, the proposals are still developing. The Committee attaches considerable importance to such development being carried forward in close consultation with interested parties. We shall look for further information on this as things unfold.

  Your letter of 17 May does not, in the opinion of the Committee, clear up the previous confusion between "own account" road transport operators and "owner-drivers". There remains a considerable question mark in the Committee's mind over the position of owner-drivers. Your letter of 7 June states that the Working Time Directive provisions do not extend to the self-employed. The Committee would find it helpful to have a clear statement of the definitions drawing on the actual words in the Directives, together with your further comments on the Committee's concerns. Please also say in what language the original Directive was written and what precise words were used in this context.

  5.  In the meantime, your letter of 7 June (which Lord Whitty endorsed in his letter to me, also of 7 June) indicates that the Government is content to rely on the existing Regulation to limit owner-drivers' maximum hours. You indicate that these give an effective limit of 13 hours on the working day and of 68 hours on an average working week. You say that you "do not have any significant evidence to suggest that there is a major road safety concern". This implies that there is some evidence of road safety issues from such hours. We note that, according to the summary of responses at Annex C of your letter of 17 May, the TGWU also see road safety implications in allowing drivers to work longer than the average 48 hours.

  6.  To help clarify the issues, the Committee would be grateful if you would say what, under the present Regulation, would be the maximum number of hours an owner-driver could work within a period of 48 hours taking account of both driving and other (potentially strenuous) activities such as loading. Similarly, what would be the maximum hours that an owner-driver could work within one week?

  7.  As noted in my letter of 29 April, the Committee's concern is about not only present road safety implications but also for the further adverse effects from the likely significant shift to owner-driver status arising from the scope for self-employed drivers being able to work longer hours than those in the employ of others.

  8.  Finally, in relation to your Explanatory Memoranda of 18 May and 21 June, the Committee would prefer to consider these important matters in the light of a further EM taking account of formally revised proposals from Brussels. The Committee would hope to receive this in good time before any Social Affairs Council at which the matter is to be considered. In the meantime, the scrutiny reserve is maintained.

1 July 1999


 
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