Consultation Response: working time for cross-border rail workers

Response to the Consultation on the transposition of Council Directive 2005/47/EC on the Agreement between the Community of European Railways (CER) and the European Transport Workers’ Federation (ETF) on certain aspects of the working conditions of mobile workers engaged in interoperable cross-border services in the railway sector.

This report records the Department's response to the representations it received to its Consultation exercise on the Cross-border Railway Services (Working Time) Regulations 2008 to give effect to the Directive 2005/47/EC on the working time of cross-border workers. The Consultation commenced on 25th February and concluded on 18th May 2008.

Consultees’ views were sought on the arrangements proposed within the consultation document and on the draft Statutory Instrument, in particular focussing on the considerations below:

Question 1:  Do you agree with our suggested approach? If not, please explain your concerns.

Question 2:  Do you have any alternative suggestions on when the leave year should begin for cross-border workers whose hours are measured over the space of a year?

Question 3:  Do you have any other comments on the proposed amending Statutory Instrument?

Question 4:  An Impact Assessment accompanied the consultation paper. If there are any additional costs or benefits that you feel have not been reflected in the Assessment, please provide details, giving supporting evidence wherever possible.

The Department received six replies to the consultation.  A summary of the replies received is as follows:

The Office of Rail Regulation suggested that the draft instrument include the definitions of "employer" and "employment" from the Working Time Regulations, as this would help their Inspectors during enforcement of the Regulations.  We considered that is was necessary to incorporate these definitions, and the draft Instrument was amended accordingly.

Europorte 2, a subsidiary company of Groupe Eurotunnel, was concerned about the 7 day reference period for the entitlement to weekly rest and requested that it be extended to 14 days.  Under the 7 day reference period in the draft Instrument, Europorte 2 believed that their shift patterns would not comply with the weekly and daily rest entitlements, even though they provided more favourable conditions than the Directive and draft Instrument.  We are unable to extend the reference period to 14 days, since the Directive does not allow us this flexibility.  However, Europorte 2 provided additional information on their shift patterns.  As we understand them, these shift patterns appear to comply with the requirements of the Directive, so we do not believe that Europorte 2 will need to modify them.  

Europorte 2 was also concerned about workers who were allocated occasionally to Europorte 2 for cross-border services, but who for the rest of their time were employed by Eurotunnel on its shuttle services that are exempt from the Regulations.  The company asked for an exemption from the regulations for these workers, as calculating their entitlements would be complicated.  Because the Directive applies to cross-border workers assigned to interoperable cross-border services for more than one hour on a daily shift, we considered that this also covered those workers whose daily shift was on an irregular or part-time basis.  We have not, therefore, been able to agree to this exemption.

RMT responded with several concerns on the draft Instrument.  They disagreed with the proposal concerning that the daily rest period at home must not be reduced to below ten hours, when it is scheduled to be between two daily rest periods away from home.  RMT considered that this would water down existing industry wide collective bargaining arrangements and that this provision in the draft Instrument should be raised to a minimum of 12 hours.  We advised RMT that the Social Partner Agreement allows the daily rest at home to be reduced to 9 hours once every 7-day period, but states that a "significantly reduced" daily rest shall not be scheduled between two daily rests away from home.  It does not define "significantly", but the implication is that it allows the daily rest at home between two daily rests away from home to be less than 12 hours.  The draft Regulations propose 10 hours as the minimum duration in these circumstances.  Nothing in the regulations precludes the daily rest in those circumstances remaining at 12 hours.  Therefore, we do not propose amending the draft Regulations on this point.  

RMT also sought clarification as to how the specified rest period impacts on the provisions of the Posted Workers Directive which sets out the minimum terms and conditions that Member States must apply to workers posted to their territory from another Member State.  BERR are responsible for the Posted Workers Directive and have advised that a "posted worker" is someone posted on a temporary basis by their employer to work in another Member State, often to fulfil a contract.   The employment relationship remains with the employer in the "posting" country, so on that basis someone who lived in one country but worked in another would not be a posted worker just because they travel to work in another country.

RMT did not agree with the proposal set out in draft Regulation 7(10), to round down to the nearest whole number the minimum number of rest days a cross-border worker is entitled to, should rest periods have to be awarded on a proportional basis.   They believe that the entitlement should be rounded up to the nearest whole number instead.  We considered that the draft Regulations should be amended to remove the word "down" - normal practice in roundings would then apply.  Any proportion below 50% would be rounded down; any proportion of 50% or greater would be rounded up.

RMT stated that a break of not less than an uninterrupted 20 minutes for drivers as set out in draft Regulation 5(3) is insufficient.  They believe that the break should be for a period of not less than an uninterrupted 30 minutes. They also considered that, on grounds of health and safety, drivers should not be required to work during a period that would be a time when he/she is entitled to a break under this regulation.   We advised that draft Regulation 5 relates to the transposition of Clause 5(b) of the Social Partners Agreement, which states "Clause 5(a) shall not apply if there is a second driver.  In that case, the conditions for granting the breaks shall be regulated at national level."  Draft Regulation 5 provides the same minimum rest periods already available through the application of Regulation 24 of the Working Time Regulations.  Additionally, under the Working Time Regulations, drivers may be required to work during a period when they are entitled to a break.  Therefore, we do not propose amending this provision as it would then no longer reflect current national legislation.

Rail Freight Group responded supporting our proposals to implement Directive 2005/45/EC.  They similarly questioned how the Regulations would be applied to part-time cross-border workers who also worked on domestic services.  RFG's main comment concerned the draft Impact Assessment.  They believe that the impact assessment has not fully addressed the economic costs that rail operators might incur. If operators have to employ more drivers or mobile staff, this will lead to more costs to the employer and a potential loss of rail competitiveness in perverse effect on modal-share and sustainability.  We asked our Economists to reconsider these potential costs, and have subsequently amended the Impact Assessment.

ASLEF responded generally supporting our proposals.  They asked for clarification of a point in draft Regulation18 concerning compromise agreements.  In response to our request for any alternative suggestions on the way in which entitlements to rest periods should be defined for cross-border workers whose hours are measured over the space of a year, ASLEF thought that this should be subject to negotiations at Company level, taking into account the effect of fatigue.  They stated that for GB, this means using the Fatigue and Risk Index to design rosters, and complying with Regulation 25 of the Railways and Other Guided Transport Systems (Safety) Regulations 2006.  We considered that negotiation between the two sides of industry is already permitted by means of new Regulation 7(5), where the "leave year" is set by a "relevant agreement" in defined in new Regulation 2.  As the Railways and Other Guided Transport Systems (Safety) Regulations 2006 is already in force and will apply, there is no need to make any change to the draft Regulations.

EWS responded stating that the Social Partner Agreement in Annex 1 of the Directive was currently under renegotiation by CER and ETF.  They asked us to delay implementation of the Regulations until negotiations were concluded.   Given the uncertainty over the outcome of the ongoing Social Partner negotiations, the lead times for any amendment of the existing Directive and the Government’s obligation to implement Directive 2005/45/EC by 27 July 2008, we do not propose delaying transposition of the Directive.

The Department will fully implement the requirements of the Directive by means of the Cross-border Railway Services (Working Time) Regulations 2008.  The Regulations will be enforced by the Office of Rail Regulation.