European Working Time Directive – Working time rules apply equally to self-employed driversMonday, June 21st, 2010
The 2002 European Working Time Directive, as it applies to mobile road transport workers (i.e. drivers of commercial goods and passenger vehicles), makes provision for its rules to apply to self-employed drivers from 23 March 2009. However, in 2008, the European Commission consulted on permanently exempting self-employed drivers, proposing instead that the Directive should be clarified so that the rules cover “false” self-employed drivers, i.e. those who are not really free to work for more than one client.
On 16 June 2010, the European Parliament voted by a majority to reject the proposals, confirming a recent vote by the Employment and Social Affairs Committee that self-employed drivers should not be exempt, and citing health and safety, road safety and the need for fair competition in the industry. Self-employed drivers will be subject to the same rules as employed drivers on loading and unloading, assistance to passengers, cleaning and maintenance, and police and customs formalities. Current EU law on employed drivers lays down an average limit of 48 hours a week, which can rise to 60 hours a week provided it does not exceed the average of 48 hours a week over a four-month period.
Following the vote, the Commission announced that it will review possible options, including a withdrawal of the proposal, and “do what is necessary to ensure compliance by the Member States with the current unchanged directive in force, which also covers self-employed drivers.” However, the UK’s implementation of the Directive, the Road Transport (Working Time) Regulations 2005, fully exempts self-employed drivers from its requirements and, as the exemption from the Directive expired in March 2009, the Regulations will have to be amended promptly.
The “false” self-employed drivers whom the Commission sought to protect by the overturned proposals are already protected by the UK Regulations by being included in the standard definition of “worker”. In contract, the Regulations define a “self-employed driver” as
“anyone whose main occupation is to transport passengers or goods by road for hire or reward … who is entitled to work for himself and who is not tied to an employer by an employment contract or by any other type of working hierarchical relationship, who is free to organise the relevant working activities, whose income depends directly on the profits made and who has the freedom, individually or through a co-operation between self-employed drivers, to have commercial relations with several customers.”