§2 Offshore workers
For offshore workers, Member States may use the derogations provided in Article 17(3), since they are available for ‘activities where the worker’s place of work and his place of residence are distant from one another, including offshore work’. In such cases, the workers remain entitled to equivalent compensatory rest periods or appropriate protection, as outlined in part B. However, in addition to these derogations and as an exception to Article 19 on the derogations from the reference period for calculating the maximum weekly working time, Article 20 also allows for a reference period of 12 months for workers who mainly perform offshore work. Member States may set this extended reference period for objective or technical reasons or reasons concerning the organisation of work, on condition that employers’ and employees’ representatives are consulted and that the general principles relating to the protection of the safety and health of workers are complied with. This flexible approach to rest periods for offshore workers aimed in particular to allow ‘shift systems based on 2 shifts × 12 hours × 14 days to continue and to give adequate recognition to the international and seasonal nature of the industry’s working patterns by allowing an annualised calculation of working hours’ (418). An assessment of these specific provisions was carried out in 2006 and concluded that they were adequate for this sector (419). Specific derogation for workers on board seagoing fishing vessels Article 21 provides that: ‘1. Articles 3 to 6 and 8 shall not apply to any worker on board a seagoing fishing vessel flying the flag of a Member State. Member States shall, however, take the necessary measures to ensure that any worker on board a seagoing fishing vessel flying the flag of a Member State is entitled to adequate rest and to limit the number of hours of work to 48 hours a week on average calculated over a reference period not exceeding 12 months. 2. Within the limits set out in paragraph 1, second subparagraph, and paragraphs 3 and 4 Member States shall take the necessary measures to ensure that, in keeping with the need to protect the safety and health of such workers: (a) the working hours are limited to a maximum number of hours which shall not be exceeded in a given period of time; or (b) a minimum number of hours of rest are provided within a given period of time. The maximum number of hours of work or minimum number of hours of rest shall be specified by law, regulations, administrative provisions or by collective agreements or agreements between the two sides of the industry. 3. The limits on hours of work or rest shall be either: (a) maximum hours of work which shall not exceed: (i) 14 hours in any 24-hour period; and (ii) 72 hours in any seven-day period; or (b) minimum hours of rest which shall not be less than: (i) 10 hours in any 24-hour period; and (ii) 77 hours in any seven-day period. 4. Hours of rest may be divided into no more than two periods, one of which shall be at least six hours in length, and the interval between consecutive periods of rest shall not exceed 14 hours. 5. In accordance with the general principles of the protection of the health and safety of workers, and for objective or technical reasons or reasons concerning the organisation of work, Member States may allow exceptions, including the establishment of reference periods, to the limits laid down in paragraph 1, second subparagraph, and paragraphs 3 and 4. Such exceptions shall, as far as possible, comply with the standards laid down but may take account of more frequent or longer leave periods or the granting of compensatory leave for the workers. These exceptions may be laid down by means of: (a) laws, regulations or administrative provisions provided there is consultation, where possible, of the representatives of the employers and workers concerned and efforts are made to encourage all relevant forms of social dialogue; or (b) collective agreements or agreements between the two sides of industry. 6. The master of a seagoing fishing vessel shall have the right to require workers on board to perform any hours of work necessary for the immediate safety of the vessel, persons on board or cargo, or for the purpose of giving assistance to other vessels or persons in distress at sea. 7. Members States may provide that workers on board seagoing fishing vessels for which national legislation or practice determines that these vessels are not allowed to operate in a specific period of the calendar year exceeding one month, shall take annual leave in accordance with Article 7 within that period.’ Like mobile and offshore workers, workers on board seagoing fishing vessels who do not come within the scope of more specific provisions (420) are subject to the general Working Time Directive, which also contains specific provisions for workers on board a seagoing fishing vessel flying the flag of a Member State. Article 21 allows Member States to derogate from the provisions on daily rest, breaks, weekly rest, maximum weekly working time and length of night work for such workers. Nevertheless, Member States are required to take measures to ensure that the workers concerned are entitled to ‘adequate rest’ (see Chapter IV) and to limit maximum weekly working time to 48 hours on average over a reference period of up to 12 months. In addition, the workers concerned must be subject either to maximum working hours or to a minimum number of hours of rest for which reference limits are set in Article 21(3). The Directive also establishes that hours of rest may be divided into no more than two periods, that one of them must last for at least 6 hours and that the interval between rest periods must not exceed 14 hours. These provisions correspond to those of Directive (EU) 2017/159 (421). Derogations from these accommodating provisions are still permitted by law, regulations or collective agreements under two conditions: (i) the exceptions must be in accordance with the general principles of health and safety protection; and (ii) they can be granted only for objective or technical reasons or for reasons concerning the organisation of work. In such cases, derogations must as far as possible comply with the standards laid down but may give rise to ‘more frequent or longer leave periods or the granting of compensatory leave’. In addition, the master of a seagoing fishing vessel must have the right to waive the rules on working time and minimum rest periods for the immediate safety of the vessel, persons on board or cargo or for the purpose of giving assistance to other vessels or persons in distress at sea. Article 21(7) also allows the Member States to stipulate that workers must take their annual leave within a specific period of the calendar year of one month or more during which the vessel(s) is(are) not allowed to operate. CONCLUSION The Working Time Directive is a complex instrument. Its aim is to protect the health and safety of workers by establishing minimum health and safety requirements for the organisation of working time and it should not be subordinated to purely economic considerations. The Directive remains a flexible instrument since, as shown in this document, it offers possibilities for flexible application of its main standards as well as a number of derogations which allow the specificities of particular sectors or certain categories of workers to be accommodated while protecting workers against the adverse effects of excessively long hours or inadequate rest. Importantly, the Working Time Directive, as is the case for all EU Directives, is binding on the Member States but its provisions have to be transposed into national law. It is therefore first and foremost the responsibility of the EU Member States to develop their legal frameworks in order to apply the protective rules of the Directive, to take up as appropriate the elements of flexibility it offers or to introduce provisions that are more favourable to the protection of the safety and health of workers. In the light of the complex architecture of the Directive, the aim of this Communication is to give as much guidance as possible on the interpretation of the Directive based first and foremost on its case-law. It does not intend to create new rules and the elements presented herein therefore remain subject to further developments and complements by the Court.
Source: EUR-Lex (Cellar) · retrieved 2026-09-07