52014SC0227

TABLE OF CONTENTS

1........... Background.................................................................................................................. 3

2........... Problem definition........................................................................................................ 3

2.1........ Characterisation of the sector....................................................................................... 4

3........... The EU right to act and subsidiarity............................................................................. 7

4........... Objectives..................................................................................................................... 7

4.1........ General objectives......................................................................................................... 7

4.2........ Specific objectives........................................................................................................ 7

5........... Policy options............................................................................................................... 8

6........... Analysis of the impact.................................................................................................. 9

6.1........ Socio-economic impacts of the agreement................................................................... 9

6.1.1..... Economic impacts......................................................................................................... 9

6.1.2..... Impacts on SMEs.......................................................................................................... 9

6.1.3..... Social impacts............................................................................................................. 10

6.1.4..... Implementation and costs........................................................................................... 10

7........... Comparison of the options.......................................................................................... 11

8........... Monitoring and evaluation.......................................................................................... 13

1. Background

Under Article 155 TFEU, the social dialogue at EU level may lead to contractual relations, including agreements. These agreements can be concluded further to a consultation process initiated by the Commission in accordance with Article 154 TFEU, or at the EU social partners' own initiative in accordance with Article 155(1) TFEU.

The Working Time Directive 2003/88/EC[1] (the Working Time Directive) concerning certain aspects of the organisation of working time lays down minimum standards in the interests of protecting workers’ short-term and long-term health and safety, which mostly apply to mobile workers, both navigation personnel as well as shipboard personnel in inland waterways. Nevertheless, crucial aspects such as the numerical limits related to daily rest, breaks, weekly rest period and length of night work do not apply to the IWT sector (Article 20 of the Working Time Directive).

At their own initiative the social partners at EU level in inland waterway transport negotiated an agreement on certain aspects of the organisation of working time in inland waterway transport (IWT) in accordance with Article 155(1) TFEU because they took the view that the Working Time Directive 2003/88/EC was not adapted to their needs (e.g. reference period and work organisation), while taking into account the provisions of the Working Time Directive already applicable to mobile workers. The agreement was concluded on 15 February 2012. In the agreement itself the social partners request the Commission to implement the agreement by a Council decision according to Article 155(2) TFEU.

To enable for the College to take an informed decision on the agreement, the Commission services have to assess such agreement with regard to the representativeness and mandate of the signatory parties and the legality of its clauses.

In addition, when an agreement is concluded on the social partners' own initiative, as in this case,  the Commission services have to assess the appropriateness of the EU action in the area. In line with the Smart Regulation Agenda, this assessment investigates the socio-economic impact of implementing the agreement.

This analytical document has been drafted in line with the impact assessment guidelines (including their reference to the existing general principles and minimum standards for consultation of interested parties). Its structure reflects the specific features of such an analytical document. It provides a proportionate analysis based on  an external study to assess the socio-economic impact deriving from the implementation of the agreement.

2. Problem definition

Activities of mobile workers[2] in various transport sectors, including inland waterways, were originally excluded from the scope of the Working Time Directive 93/104/EEC[3]. The various transport sectors, including inland waterways, were brought within its scope by Directive 2000/34/EC[4], with effect from 1 August 2003. Directive 2000/94/EC provided that Member States must take the necessary measures to ensure that such workers are entitled to "adequate rest"[5], without expressing this principle in specific units of time. Directive 2003/88/EC consolidated and repealed the 1993 and 2000 Directives.

Hence, the absence of EU rules on numerical limits on daily and weekly working time, and night work of IWT mobile workers opened the way to a wide variety of national rules, which created difficulties for transport companies[6] and did not in all cases ensure sufficient protection for workers[7].

Article 14 of the Working Time Directive provides for other instruments at EU level containing more specific working time requirements for certain occupations or occupational activities. Such specific requirements have already been laid down by specific Directives for seafarers and for mobile transport workers in civil aviation and in cross-border rail services, based on European agreements concluded by the social partners for the sectors concerned[8].

Currently an impact assessment on the review of the Working Time Directive is on-going; it is not proposed to change the provisions concerning mobile workers as part of this review[9].

2.1. Characterisation of the sector

The European Union’s inland waterway network consists of about 37 000 kilometres of inland waterways; - rivers, lakes and canals- in 20 Member States[10].  Every year, these waterways transport around 500 million tons of cargo. Over 75% of IWT within the EU is cross-border transport.[11] A total of 31 000 mobile workers work in the sector.

The added value and employment are mainly generated in Germany and the Netherlands. The top five countries with the highest IWT labour force are the Netherlands, Germany, France, Luxembourg and Italy[12]. They represent around 68% of the total IWT labour force in 28 EU Member States. Together with Belgium and Romania, these Member States represent around 73% of the mobile workers in the EU.

International agreements in the sector

In addition to the EU and national working time regulations which intended to protect worker's health and safety, there are international agreements  in the Rhine and Danube regions. These agreements regulate sailing time of the vessel, minimum rest periods and manning requirements. Working time does not always equal the vessel's sailing time. For instance, workers on board of a ship might also work if the vessel does not sail (e.g. loading and unloading). The relationship between these international agreements and the EU legislation on working time is based on the rule that the provisions most favourable to workers applies.

Increased need for flexibility of working times because of the specific situation

Mobile workers in IWT have specific, irregular work patterns compared to workers on shore. Periods of high work load are followed by periods of rest and periods of low work load. They are required to spend a longer time away from home, as an integral part of their work. They work long hours in a short period of time (e.g. multiple voyages or season) and often work and live at their workplace. Longer rest periods are generally taken when going home at the end of the work/season. Average working time in the IWT sector usually includes a considerable amount of inactive time (for example because of unplanned waiting time at locks or during the loading and unloading of the craft), which may also occur during the night. The maximum daily and weekly working time may therefore be longer than the working time limits stipulated in the Working Time Directive.

A longer reference period allows balancing the average weekly working hours over a longer period of time. This is particular useful in the IWT sector where the working time is not spread evenly over a year. However, as a result of these derogations the rules actually in force concerning the reference period differ widely between the various Member States[13].

Working time rules are not adapted to the cross border work in the sector.

Over 75% of IWT within the EU is cross-border transport.[14] Working time regulations vary between these Member States. Companies and workers find certain aspects of the present Working Time Directive and its transposition in the national legislation of the Member States overly complicated and not adapted to the actual work patterns on board of vessels.[15]

Some Member States have detailed legislation concerning working time for IWT and a long reference period to calculate the average weekly working time. Other Member States have introduced less detailed requirements and prescribe short reference periods.[16]

Applicability of the working time rules in the sector is not clear

The criteria currently used to determine whether the national regulations on working time apply to mobile workers in IWT vary widely across the Member States. In some Member States only crew members are covered by the working time rules for the inland waterways while shipboard personnel (such as hotel and catering personnel) are not covered by it. The situation is satisfies neither employers nor employees, because the majority of inland waterway transport is cross-border. It is not always clear which national regulations apply and whether it applies to all mobile workers on board of the ship.

There are no clear common standards and rules which would ensure a given level of protection of health and safety, while maintaining a high level of flexibility for enterprises in a sector that predominantly operates across borders. The difference in working time rules between Member States is seen as problematic by both employers and employees as it allows for competition in terms of working hours working hours in this predominantly cross-border sector[17].

Enforcement of the working time rules is difficult

Working time rules which are not adapted to the specific features of the inland transport sector reduce compliance with the rules[18]. This is reported by Member States in both the Rhine and the Danube region. Part of the reason for non-compliance is the complexity and lack of transparency of the current rules. However, companies which apply the rules consider those which do not as unfair competitors[19]. Different interpretation and implementation of rules can also be noticed which makes compliance as well as controls even more difficult.

Working hours and risk of accidents

Mobile workers in IWT often have a great responsibility – e.g. for the safe handling of the cargo or passengers and the safe handling of the vessel. The work is demanding[20] and includes safety risks[21]. When linking the number of accidents to the number of workers in the IWT sector, the amount of casualties is quite high in IWT. For example if on that basis, IWT is compared with the construction industry; the amount of casualties reported is 1.65 times higher in IWT[22]. Infringements of the rules on sailing and resting times may not be the only cause of these problems.

However, several operators have confirmed that over-long working hours are an issue of increasing importance in the sector[23] and working conditions have deteriorated due to the difficult economic situation[24]. Fatigue is identified as one of the risk factors in the sector[25].

3. The EU right to act and subsidiarity

Article 14 of the Working Time Directive allows for more specific working time requirements at EU level for particular occupations or activities. Such specific requirements at EU level have already been laid down by various EU directives for seafarers and for mobile transport workers in civil aviation and in cross-border rail services, based on European agreements concluded by the social partners for the sectors concerned[26].

This latest agreement provides ‘more specific provisions’ within the meaning of Article 14 of the Working Time Directive. Article 14 refers to ‘Community instruments’ as necessary to lay down such provisions. Therefore, the objective of the agreement can only be achieved at EU level.

4. Objectives 4.1. General objectives

Improve the socio-economic situation of the IWT sector. This general objective includes the intention to improve the working conditions for mobile workers, as enshrined in Article 153 TFEU, while moving towards more equal and favourable conditions for operators.

4.2. Specific objectives

In order to reach the general objective set above, the present agreement has the following specific objectives:

· to allow more flexibility for the operators in IWT to balance between periods of high and low work load;

· to ensure minimum health and safety protection for all mobile workers in the sector;

· to facilitate enforcement of working time rules, in particular in cross-border situations.

5. Policy options

Given that in accordance with Article 155 TFEU the Commission can accept or reject the request for legislative implementation of the agreement but cannot amend the text of the agreement, the analytical document will analyse only one policy approach, i.e. the measures defined in the agreement, and compare it against the baseline.

· Not to propose implementation of the agreement by a Council decision in accordance with Article 155 TFEU (the baseline): the current EU legislation, Directive 2003/88/EC on working time and Directive 94/33/EC on the protection of young people at work will remain in force for mobile workers in IWT, but there will be no sector-specific working time legislation at European level.

The Working Time Directive 2003/88/EC includes a limit on average weekly working time, a right to paid annual leave and a right for night workers to health checks. These provisions apply to mobile workers in inland waterways.

However, in accordance with Article 20 of the Working Time Directive crucial provisions such as those related to daily rest, breaks, weekly rest period and length of night work were excluded from the material scope of application in the IWT sector.

As the relevant provisions of the Working Time Directive led to widely diverging transposition into national legislation, the current situation (hereafter: baseline) is very much characterised by the national legislation and the safety regulations laid down in accordance with the international agreements such as CCNR and the like[27].

· To propose implementation of the agreement by a Council decision in accordance with Article 155 TFEU: Directive 2003/88/EC and Directive 94/33/EC (young people at work) will be complemented by a Directive which will provide more specific provisions at EU level on binding and common definitions concerning the organisation of working time in IWT.

The agreement covers the following areas: limit to daily and average weekly working time, reference period, annual leave, definition of working days and rest days, special provisions regarding seasonal work on passenger vessels, minimum daily and weekly rest periods, breaks, maximum working time during night time, special provisions regarding working time of workers aged under 18, verifications, emergency situations, health assessment and the right to transfer for night workers, safety and health protection and patterns of work.

In its provisions the agreement gives binding and common definition in units of time of the required minimum daily and weekly rest periods, and the maximum working hours per week and at night.

The agreement contains a provision which gives Member States the possibility to apply or continue to apply more favourable provisions.

6. Analysis of the impact 6.1. Socio-economic impacts of the agreement

While the Ecorys study started with the intention to develop a cost-benefit analysis of the new agreement, entering into the substance it became clear that the complexity of the status quo which consists of sector-specific national legislation and general national legislation, which implements the EU legislation on working time and international agreements on sailing times and the subtlety of the changes required when implementing the Agreement do not allow for this instrument to be used in a serious way. Therefore a qualitative analysis of the socio-economic advantages and disadvantages is provided.

6.1.1. Economic impacts

The agreement will limit unfair competition on working time, as it will set common definitions and minimum numerical limits for vessels operating within the territory of the EU Member States. Member States which have less favourable provisions than the agreement will have to adapt their legislation to the agreement. The agreement also establishes common methods for registration and verification of working time at EU level. The registration should be jointly endorsed by employers and employees. This will enable an efficient checking of working time by the enforcement authorities, which at the same time would not pose an administrative burden on the operators[28]. This could improve competitiveness as working time can be more efficiently enforced The analysis suggests that the provisions on working time in the agreement would not complicate the existing acquis and that the agreement does not discriminate in any other way against enterprises newly entering the market. On the contrary, clear minimum standards might in the long run increase the transparency of the rules and thereby even facilitate market entrance.

6.1.2. Impacts on SMEs

Most of the enterprises in the sector are SMEs or micro-enterprises and most mobile workers are employed in such enterprises, especially in the Rhine region where the proportion of small enterprises is higher than in the Danube region. SMEs are well represented in the sectoral social dialogue by ESO and their representatives were amongst the strongest supporters of the agreement, as they see it as an opportunity to achieve harmonisation with potentially simpler rules on working time in the sector.

The majority of small or even micro-enterprises will be less affected by the new provisions because they own the ships that run on the Rhine and Danube under the exploitation schemes A1 and A2[29] in accordance with CCNR regulations and the like, which already require have certain rest periods. For such ships excessive night work is less likely than under a 24 hours exploitation scheme.

6.1.3. Social impacts

In the present situation the differences in regulations between Member States and the lack of flexibility of the rules lead to difference in the implementation of the rules and in working hours for mobile workers. Having more consistent rules in line with the work schedules in the sector will facilitate implementation and enforcement of the rules. The agreement should also lead to an improvement in working conditions for mobile workers in those Member States[30] which have less favourable provisions on working time than the agreement or none at all.

The inclusion in the agreement of all mobile workers, i.e. crew and shipboard personnel, will lead to equal limits on working hours for these two categories of mobile workers. As most Member States[31] already apply working time provisions to both crew and shipboard personnel, no major impact is expected. As some reports indicate excessive working hours for shipboard personnel on passenger vessels, the agreement will have some positive impact on the working conditions of shipboard personnel.

Maximum working time and minimum rest time provisions will have some positive impact in Member States which do not have these limits in their national legislation, such. As most Member States already have regulations which are equal or more protective than the limits in the agreement, no substantial improvement is to be expected. In Member States which apply the CCNR (or similar) regulations, and therefore have some limits on rest time, some slight improvement might be expected on limits on working time. However, according to the operators interviewed in practice the work schedules are already in line with the limits provided for in the agreement.

6.1.4. Implementation and costs

As part of the Ecorys study, representatives of enforcement bodies and representatives of the social partners in the EU Member States were asked if, in their opinion, the amount of time spent by enforcement officers on the verification of working and rest hours of mobile workers would change due to provisions in the agreement.

Most took the view that the time spent by enforcement officers would not change. Some stated that the provisions of the agreement would lead to an amendment to current regulations that could be incorporated into labour legislation (the United Kingdom and the Czech Republic). In Belgium, Bulgaria, Finland and Hungary respondents stated that their current national legislation on working time was similar to the provisions of the agreement. Since the legal arrangement of working time does not change fundamentally, the impact on the time spent checking compliance should not change much either.

Respondents in the Netherlands and Germany agreed that a common level of protection on all European inland waterways could lead to more efficiency in enforcement. This was also the view of respondents in Luxembourg and Romania.

7. Comparison of the options

Specific objective || Baseline || Agreement || Assessment of the change from baseline to agreement

Flexibility to balance between periods of high and low work load || The reference period over which the average weekly working time is calculated as transposed in national rules, is in most cases relatively short, leading to a limited flexibility || By facilitating the extension of the reference period over which the average weekly working time can be computed (up to 12 months), the sector gains a lot of flexibility. This flexibility is consolidated by quite high maximal number of working hours for shorter periods (up to 14 hours/day, 84 hours/week in any week and 72 hours/week over longer periods) || Very positive

Minimum health and safety protection for all mobile workers in the sector || Crew members on most inland waterways are protected either by specific working time legislation, by provisions on security of operations and/or by social partner agreements. However, in a number of cases it is not clear which rules should actually be applied. Subsequently protection is unclear and may be lacking especially for shipboard personnel. || The agreement covers all mobile workers and does not allow for a distinction between navigation personnel and shipboard personnel. All mobile workers have a right to free regular health checks. This may entail immediate costs but preventative action may lead to reduced absenteeism and sickness insurance. With the maximum limit to average weekly working time, even though this is calculated over a whole year, the protection of mobile workers in IWT is aligned with the protection provided by the general Working Time Directive. The possibility to work for rather long periods average 72 hours per week over a period of 4 months allows working somewhat excessive hours in the short term. However social partners agree in considering this suited to some specifically seasonal working patterns. However such workers are still covered by the overall limit, so they will be entitled to work correspondingly shorter hours until their average (calculated over 12 months) comes back down to a maximum of 48 hours. This provides a protection of workers against excessive situation. || Positive

Facilitate enforcement of working time rules, in particular in cross-border situation. . || A patchwork of sometimes contradictory rules (e.g. different definitions of night time, focus on rests vs. focus on working hours different criteria for identification of applicable legislation), makes it difficult for in particular small operators to really know which rules they have to comply with in every moment. Subsequently also enforcement is difficult for the enforcement bodies. || Harmonised definition of night time, reference period and standard obligations for reporting will facilitate the implementation of rules. The clear definition, of which rules (geographical position of the ship) apply, will facilitate compliance and enforcement. || Very Positive

Costs of implementing the agreement || Many rules are not systematically enforced. Thus costs of implementation are kept to a minimum. This coincides with a perception that compliance is not considered important. || Operators do not expect a significant increase of costs when implementing the agreement. However, there may be costs to be expected: Continuously: a)      more systematic registration of working time in some cases One-off: b)      introducing changes to the system of working time registration c)      Familiarisation with the new rules and how they are to be understood. d)      Adaptation of the national legislation to the requirements of the agreement I.e. the permanent costs seem to be limited and in direct relation with the intensions of the initiative. The one-off costs can be considered as not excessively high as the sector is motivated to accept the new legislation, which should also facilitate the implementation for Member States, so that the legal changes might in the long run pay back with better compliance. || Increase but willingness to spend money on it might also increase

Summarising the table it can be concluded that the agreement makes a step forward in achieving the objectives set at reasonable costs taken as a whole. The Commission therefore considers the agreement as an appropriate way forward.

8. Monitoring and evaluation

Without prejudice to the provisions of the agreement on the follow-up and review by the signatories, the European Commission shall monitor the implementation of the directive.

The following data will be examined:

1. Rate of compliance with working time provisions in the agreement;

Once the directive implementing the agreement in EU law is adopted, the Member States are obliged to transpose the directive into their national legislation. The national enforcement authorities will then be responsible for the enforcement of the national legislation. On the basis of the data provided by national enforcement authorities in annual reports[32], the European Commission can monitor if there is a better compliance with working time provisions at national level. This will be an indication that the working time provisions provide flexibility for the operators to balance high and low workloads.

2. Identification of trends, in particular

a) reduction of accidents in the sector. ;

b) reduction of health problems and a higher satisfaction of workers with their working, while taking other aspects such as the increased average aging of the sector into account; 

These aspects can be monitored in a qualitative way during the ongoing discussion with Member States and the European social partners. Data will be available based on information of the different stakeholders, such as national authorities, in particular enforcement authorities and social partners. In addition the signatories of the agreement will monitor and review the agreement in the context of the sectoral social dialogue committee for inland waterway transport.

The agreement would be evaluated by the Commission services five years after the date of its entry into force. The evaluation will be based on data gathered from the monitoring exercise, complemented by the results of the monitoring and of the review by the signatories of the agreement as well as information collected from Member States and other stakeholders.

In order to evaluate the results and the impact of the agreement some evaluation questions should be addressed:

1. What have been the impacts on the main stakeholders in the sector? In particular the following aspects should be analysed:

a. did the control on working time provisions become more efficient, in particular in cross-border situations, in terms of time needed for the control;

b. the compliance rate within the sector in terms number of non-compliant ships, correct registration of working time on board of ships;

c. the number of accidents within the sector;

d. satisfaction of mobile workers with the working conditions in the sector;

2. Are there any issues with regard to working time for mobile workers in inland waterway which still need to be addressed?

[1]               Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, OJ L 299, 18.11.2003, p. 9–19

[2]               Article 2(7) of Directive 2003/88/EC: ‘mobile worker’ means any worker employed as a member of travelling or flying personnel by an undertaking which operates transport services for passengers or goods by road, air or inland waterway.

[3]               Directive 1993/104/EC concerning certain aspects of the organisation of working time, OJ L 307, 13.12.1993.

[4]               Directive 2000/34/EC of the European Parliament and 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.

[5]               Article 2(9) ‘adequate rest’ requires that ‘workers have regular rest periods, the duration of which is expressed in units of time and which are sufficiently long and continuous to ensure that, as a result of fatigue or other irregular working patterns, they do not cause injury to themselves, to fellow workers or to others and that they do not damage their health either in the short term or in the longer term.’

[6]               NEA, 2011: Medium and Long Term Perspectives of IWT in the EU.

[7]               Market Observation No. 12 (2010-II) http://www.ccr-zkr.org/13020800-en.html.

[8]               See footnote 8

[9]               Roadmap Review of the Working Time Directive.

[10]             The Ecorys study to assess the costs and benefits of the implementation of the social partner agreement on working time in the IWT sector contains data of 19 Member States with IWT. This includes all Member States, except CY, DK, EL, IE, LV, MT, and SI. The national authorities in these  countries stated in answer to the questionnaire on working time regulation in IWT sent by Ecorys in the context of the external study that they either had no IWT sector or not in the sense of the agreement. According to the replies from employers' organisations and trade unions, IWT transport in ES and PT is neglible.

[11]             Commission communication Towards quality inland waterway transport - NAIADES II COM(2013) 623 final.

[12]             The IWT labour force in Italy is mainly concentrated on the passenger IWT sector. The inland waterways in Italy are not interconnected with other European inland waterways.

[13]             Ecorys study

[14]             Communication of the Commission Towards quality inland waterway transport - NAIADES II COM(2013) 623 final.

[15]             NEA: Final Report for the “Study on Administrative and Regulatory Barriers in the field of Inland Waterway Transport”, 2008.

[16]             Ecorys study.

[17]             Letter by EBU, ESO and ETF of 16 March 2012 to the Commission.

[18]             ECMT 2006: Strengthening inland waterway transport: pan-European co-operation for progress.

[19]             In the context of the NEA 2008 study this was reported by among others BE, DE, NL, AT, but it is believed that this issue concerns more EU Member States.

[20]             Dipl.-Psychologe Dr. Stefan Poppelreuter: Psychische Belastungen am Arbeitsplatz – auch für die Binnenschifffahrt ein Thema, November 2012.

[21]             Although IWT is known as a safe transport mode, the safety risks for staff working in the industry is not insignificant (see also the report: Visietraject Veiligheid Binnenvaart, NEA Netherlands, 2011).

[22]             RIVM, report Bouwnijverheid

[23]             Ecorys study

[24]             Inspection Human Environment and Transport, the Netherlands, Toezichtsplan over water (Waterways Supervision plan 2013)

[25]             European Agency for Safety and Health at Work 2011: OSH in figures: Occupational safety and health in the transport sector — An overview

[26]             Directive 1999/63/EC OJ L 167, 2 July 1999 on working time for seafarers, Directive 2000/79 on working time of mobile workers in civil aviation, OJ L 302 of 1.12.2000, Directive 2005/47/EC concerning working conditions in the cross border railway sector OJ L 195 of 27.7.2005.

[27]             International agreements in the sector: In five Member States (Belgium, France, Germany Luxemburg, and the Netherlands), the Central Commission for the Navigation on the Rhine (CCNR) provides legally binding minimum rest standards for crew for navigation on the Rhine. For the countries connected by the Danube, the Danube Commission provides recommendations regarding rest periods for navigation personnel on the basis of UNECE Resolution 61 on Europe-wide technical requirements for inland navigation vessels. The recommendations of the Danube Commission are identical to the CCNR Regulation.

[28]             Letter sent by EBU, ESO and ETF to the Commission concerning the agreement on 16 March 2012.

[29]             According to the Rhine Regulations and the like a vessel operating in A1 schedule means that the vessel is operated max 14 hours/day continuously; In A 2 schedule the vessel is operated max 18 hours/day  continuously)

[30]             Croatia, Hungary, Italy, Luxembourg , Poland, the Netherlands, and Romania

[31]             With the exception of Netherlands, Romania and Croatia, whose national legislation is based on the Rhine regulation and the like.

[32]             National enforcement authorities prepare annual reports on a voluntary basis according to their national practice.