Analysis of the degree of concordance between the national ... fileAnalysis of the degree of concordance between the national

EU-ILO PROJECTENHANCING THE LABOUR ADMINISTRATION CAPACITY

TO IMPROVE WORKING CONDITIONS AND TACKLE UNDECLARED WORK

The Project is funded by the European Union

The Project is implemented bythe International Labour Organization

Analysis of the degree of concordance betweenthe national legislation and some selected EU directives

on OSH and labour relations

Directive No. 2003/88/EC of the European Parliament and of the Council, of 4 November 2003,

concerning certain aspects of the organization of working time

APRIL 2018

FOREWORD

The present analysis was developed within the scope of the technical cooperation project “Enhancing the labour administration capacity to improve working conditions and tackle undeclared work”, funded by the European Union (EU) and implemented by the International Labour Organization (ILO). Its activities are described in the diagram below.

This is the joint support of the EU and ILO to Ukraine in the implementation of the EU-Ukraine Association Agreement and application of the international standards on occupational safety and health (OSH) and labour inspection.

The project is aimed at contributing to the improvement of the working conditions and to the reduction of the scope of undeclared work in Ukraine, by means of improving the national legislation and enhancing the capacities of the national labour inspection system.

One of its components is the provision of expert support and recommendations regarding the implementation of the following 5 EU directives on OSH and 1 EU directive on labour relations:

EU Council OSH Framework Directive No. 89/391/EEC, of 12 June 1989, on the introduction ofmeasures to encourage improvements in the safety and health of workers at work (Framework Directive);

EU Council Directive No. 89/654/EEC, of 30 November 1989, concerning the minimum safety and health requirements for the workplace;

Directive No. 2009/104/EC, of the European Parliament and of the Council, of 16 September 2009, concerning the minimum safety and health requirements for the use of work equipment by workers at work;

Council Directive No. 89/656/EEC, of 30 November 1989, on the minimum health and safety requirements for the use by workers of personal protective equipment at the workplace;

Directive No. 2003/88/EC of the European Parliament and of the Council, of 4 November 2003, concerning certain aspects of the organization of working timе;

Council Directive No. 91/533/EEC, of 14 October 1991, on an employer's obligation to inform

employees of the conditions applicable to the contract or employment relationship.

Within this component, the first step was to train the national experts on each of the aforesaid EU directivesto deepen their knowledge on their provisions. As a result 100 representatives of the Parliament, ministries, State services, and of the social partners took part in 6 training sessions.

Afterwards, the Ministry of Social Policy and the State Labour Service set up 6 workgroups, for the development of 6 tables of concordance between the national legislation and each of the EU directives mentioned above.

Those tables were then analyzed and commented by the ILO, and some recommendations on further steps were provided.

As a result of these joint efforts, 6 consolidated tables of concordance, containing the results of the legal analyses and the ILO comments were produced: each of them is devoted to one of 6 EU directives and contains 4 main sections:

І. Statistics on the level of legal approach

ІI. Summary of the concordance analysis

ІII. Table of concordance

IV. List of revised legislation

The analysis results, conclusions and the tables themselves are to be discussed at a tripartite workshop. The suggestions and recommendations to be proposed by the participants will be taken into account, during the preparation of the “White Book” on the reform of the OSH and labour relations legal framework, which is to be produced within the EU-ILO Project in 2018.

This brochure, in turn, is focused on the analysis of the degree of concordance between the national legislation and Directive No. 2003/88/EC of the European Parliament and of the Council, of 4 November 2003, concerning certain aspects of the organization of working timе.

1.2. Legal framework on labour inspection

ILO conventions 81, 129

1.2.1. Analysis of the national legal framework on LI on

compliance with ILO conventions

1.2.2. Recommendations for further revision of the national legal framework on LI

1. Legal framework on occupational safety and health (OSH), labour relations,

labour inspection (LI)

1.1. OSH legal framework: directives 89/391/ЕЕС

(OSH framework), 89/654/EЕС (workplaces),

89/656 ЕЕС (PPE), 2009/104/EC (work

equipment), 2003/88/EС (working time) ILO conventions 155, 187

Labour relations : directives 91/533/EEC (obligations to inform),

1.1.1. OSH profile update

1.1.2. Training on

EU Acquis

1.1.3. Tables of concordance

EU directives and national legislation

1.1.5. + 1.1.6. “White paper”

on the reform legislation on OSH

and labour relations

1.1.7.Training on the application of EU

Acquis and national legislation

1.1.4. Tripartite workshop

2. Improving working conditions

and fight against undeclared work

(UDW)

2.3. Enhancing State Labour Service

capacity

2.1. State Labour Service (SLS) information technologies (IT)

2.2. UDW

2.3.1. 2 study visits abroad, focused on 2 different LI

systems of enforcing OSH and labour relations law

2.3.2. Trainings for

labour inspectors on tackling UDW

2.3.3. Trainings on OSH and working conditions

priority issues (for labour inspectors and selected

SLS staff)

2.1.1. + 2.1.2. Analysis of: a) SLS IT and data collected in inspection visits; b) Existing databases outside SLS and its interoperability

2.1.3. + 2.1.4. Recommendations on: a) improvement of SLS IT system for planning inspections and

processing inspections results; b) data sharing (specially in UDW)

2.1.5. Training on IT systems and processing of

inspection results

2.2.2. Multiannual strategy on

UDW

2.2.3. Preventive action (information campaign,

partnership agreements)

2.2.4. Deterrent action, (inspection campaign)

Implementation of UDW Strategy

2.2.1. Consolidate the 2016-2017 diagnostic on UDW and propose measures to tackle it

2.2.5. Reinforce cooperation on UDW with an information

and knowledge sharing event

2.3.4. Training for SLS support staff to

improve SLS workflow

EU-ILO Project activities

CONTENT

I. Sta�stics On The Level Of Legal Approach

II. Summary Of The Concordance Analysis

III. Table Of Concordance

IV. List Of Revised Legisla�on

N.º % N.º % N.º % N.º % N.º % N.º % N.º % N.º %

MAINTAIN COMPLEMENT REMOVE PROVIDE FORNON PROVIDED

FORCONTRADICTORY

N.º TITLEFULL PARTIALLY

STATS ON THE LEVEL OF LEGAL APPROACH

Directive No. 2003/88/EC of the European Parliament and of the Council, of 4 November 2003, concerning certain aspects of the organization of working time

DIRECTIVE ARTICLE LEVEL OF COMPLIANCE RECOMMENDATIONS FOR FURTHER ACTION

1 Purpose and scope 0 0,0% 0 0,0% 6 100,0% 0 0,0% 0 0,0% 0 0,0% 0 0,0% 6 100,0%

2 Definitions 1 9,1% 1 9,1% 9 81,8% 0 0,0% 1 9,1% 1 9,1% 0 0,0% 9 81,8%

3 Daily rest 0 0,0% 0 0,0% 1 100,0% 0 0,0% 0 0,0% 0 0,0% 0 0,0% 1 100,0%

4 Breaks 1 100,0% 0 0,0% 0 0,0% 0 0,0% 1 100,0% 0 0,0% 0 0,0% 0 0,0%

5 Weekly rest period 2 100,0% 0 0,0% 0 0,0% 0 0,0% 2 100,0% 0 0,0% 0 0,0% 0 0,0%

6 Maximum weekly working time 1 50,0% 1 50,0% 0 0,0% 0 0,0% 1 50,0% 1 50,0% 0 0,0% 0 0,0%

7 Annual leave 0 0,0% 0 0,0% 0 0,0% 2 100,0% 0 0,0% 0 0,0% 2 66,7% 1 33,3%

8 Length of night work 0 0,0% 1 33,3% 2 66,7% 0 0,0% 0 0,0% 1 33,3% 0 0,0% 2 66,7%

9 Information for workersHealth assessment and transfer of night workers to day work 0 0,0% 1 25,0% 3 75,0% 0 0,0% 0 0,0% 1 25,0% 0 0,0% 3 75,0%

10 Guarantees for night-time working 0 0,0% 0 0,0% 1 100,0% 0 0,0% 0 0,0% 0 0,0% 0 0,0% 1 100,0%

11 Notification of regular use of night workers 0 0,0% 0 0,0% 1 100,0% 0 0,0% 0 0,0% 0 0,0% 0 0,0% 1 100,0%

12 Safety and health protection 0 0,0% 0 0,0% 2 100,0% 0 0,0% 0 0,0% 0 0,0% 0 0,0% 2 100,0%

13 Pattern of work 0 0,0% 0 0,0% 1 100,0% 0 0,0% 0 0,0% 0 0,0% 0 0,0% 1 100,0%

14 More specific Community provisions 0 0,0% 0 0,0% 1 100,0% 0 0,0% 0 0,0% 0 0,0% 0 0,0% 1 100,0%

15 More favourable provisions 0 0,0% 0 0,0% 1 100,0% 0 0,0% 0 0,0% 0 0,0% 0 0,0% 1 100,0%

16 Reference periods 0 0,0% 0 0,0% 5 100,0% 0 0,0% 0 0,0% 0 0,0% 0 0,0% 2 100,0%

17 Derogations 0 0,0% 0 0,0% 32 100,0% 0 0,0% 0 #ДЕЛ/0! 0 #ДЕЛ/0! 0 #ДЕЛ/0! 0 #ДЕЛ/0!

18 Derogations by collective agreements 1 20,0% 0 0,0% 4 80,0% 0 0,0% 1 100,0% 0 0,0% 0 0,0% 0 0,0%

19 Limitations to derogations from reference periods 0 0,0% 0 0,0% 2 100,0% 0 0,0% 0 #ДЕЛ/0! 0 #ДЕЛ/0! 0 #ДЕЛ/0! 0 #ДЕЛ/0!

20 Mobile workers and offshore work 0 0,0% 0 0,0% 2 50,0% 2 50,0% 0 0,0% 0 0,0% 2 66,7% 1 33,3%

21 Workers on board seagoing fishing vessels 0 0,0% 0 0,0% 14 100,0% 0 0,0% 0 0,0% 0 0,0% 0 0,0% 10 100,0%

22 Miscellaneous provisions 2 25,0% 0 0,0% 6 75,0% 0 0,0% 2 100,0% 0 0,0% 0 0,0% 0 0,0%

23 Level of Protection 0 0,0% 0 0,0% 1 100,0% 0 0,0% 0 0,0% 0 0,0% 0 0,0% 1 100,0%

8 7,3% 4 3,6% 94 85,5% 4 3,6% 8 13,6% 4 6,8% 4 6,8% 43 72,9%TOTAL OF DIRECTIVE PROVISIONS

C:/Users/User Ukr/AppData/Local/Microsoft/Windows/Temporary Internet Files/Content.Outlook/IP3ZO7I9/WorkingTimeDirective_2003-88-EC.pdf

SUMMARY OF THE CONCORDANCE ANALYSISDirective No. 2003/88/EC of the European Parliament and of the Council, of 4 November 2003, concerning certain aspects of the organization of working time

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1 Scope and definitions - Purpose and scope 1 This Directive lays down minimum safety and health requirements for the organisation of working time. X YES X

1 Scope and definitions - Purpose and scope 2 (a)

"This Directive applies to minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time. "

X YES X

1 Scope and definitions - Purpose and scope 2 (b) This Directive applies to certain aspects of night work, shift work and patterns of work. X YES X

1 Scope and definitions - Purpose and scope 3 (1)

This Directive shall apply to all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC, without prejudice to Articles 14, 17, 18 and 19 of this Directive. [It means that it will not apply (or that the application of certain provisions is derogated) to some sectors, type of workers, type of activities or where there is a collective agreement, provided that the workers not included are duly compensated. The exceptions include: 1) Certain occupations or occupational activities that are already regulated by other Community instruments; 2) Certain types of workers (managing executive, family workers, etc.); 3) Security and surveillance activities; 4) Service and production activities that cannot be stopped or have highly variable needs of workers (e.g., hospitals, docks, airports, railway transport, press, radios, television, water, gas, electricity, agriculture, tourism, postal services, etc.); 5) The ones derogated by collective agreements; 6) Seafarers; 7) Mobile workers, offshore workers and workers on board seagoing fishing vessels (regarding certain provisions).]

X YES X

1 Scope and definitions - Purpose and scope 3 (2)

This Directive shall not apply to seafarers, as defined in Directive 1999/63/EC without prejudice to Article 2(8) of this Directive [i.e., certain provisions apply to offshore workers when the work is performed from a vessel - see articles 2(8), 20(2) and 20(3).].

Х Х

1 Scope and definitions - Purpose and scope 4

The provisions of Directive 89/391/EEC are fully applicable to the matters referred to in paragraph 2 [to the minimum safety and health requirements for the organisation of working time, regarding minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time, as well as concerning certain aspects of night work, shift work and patterns of work], without prejudice to more stringent and/or specific provisions contained in this Directive.

Х Х

2 Scope and definitions - Definitions 1 Working time - means any period during which the worker is working, at the employer's disposal and carrying out

his activity or duties, in accordance with national laws and/or practice; Х Х

2 Scope and definitions - Definitions 2 Rest period - means any period which is not working time; Х Х

2 Scope and definitions - Definitions 3 Night time - means any period of not less than seven hours, as defined by national law, and which must include, in

any case, the period between midnight and 5.00; Х YES Х

2 Scope and definitions - Definitions 4 (a) Night worker - means, on the one hand, any worker, who, during night time, works at least three hours of his daily

working time as a normal course; and X X

2 Scope and definitions - Definitions 4 (b)(i)

Night worker - means, on the other hand, any worker who is likely during night time to work a certain proportion of his annual working time, as defined at the choice of the Member State concerned by national legislation, following consultation with the two sides of industry; or

Х Х

2 Scope and definitions - Definitions 4 (b)(ii)

Night worker - means, on the other hand, any worker who is likely during night time to work a certain proportion of his annual working time, as defined at the choice of the Member State concerned, by collective agreements or agreements concluded between the two sides of industry at national or regional level.

Х Х

2 Scope and definitions - Definitions 5

Shift work - means any method of organising work in shifts whereby workers succeed each other at the same work stations according to a certain pattern, including a rotating pattern, and which may be continuous or discontinuous, entailing the need for workers to work at different times over a given period of days or weeks.

X YES X

2 Scope and definitions - Definitions 6 Shift worker - means any worker whose work schedule is part of shift work. Х Х

2 Scope and definitions - Definitions 7 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. Х Х


Offshore work - means work performed mainly on or from offshore installations (including drilling rigs), directly or indirectly in connection with the exploration, extraction or exploitation of mineral resources, including hydrocarbons, and diving in connection with such activities, whether performed from an offshore installation or a vessel.

Х Х

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Adequate rest - means 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.

Х Х

3

Minimum rest periods — other aspects of the organization of working

time - Daily rest

(1) Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period. X YES X

4


time - Breaks

(1)

Member States shall take the measures necessary to ensure that, where the working day is longer than six hours, every worker is entitled to a rest break, the details of which, including duration and the terms on which it is granted, shall be laid down in collective agreements or agreements between the two sides of industry or, failing that, by national legislation.

Х YES Х

5


time - Weekly rest period

(1) Member States shall take the measures necessary to ensure that, per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours' daily rest referred to in Article 3. Х YES Х

5



(2) If objective, technical or work organisation conditions so justify, a minimum rest period of 24 hours may be applied Х YES Х

6

Minimum rest periods — other aspects of the organization of working time - Maximum weekly

working time

(1)(a)

"Member States shall take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers, the period of weekly working time is limited by means of laws, regulations or administrative provisions or by collective agreements or agreements between the two sides of industry; "

Х YES Х

6


working time

(1)(b)Member States shall take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers, the average working time for each seven-day period, including overtime, does not exceed 48 hours.

X YES X

7


time - Annual leave

1Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

X YES X X

7


time - Annual leave

2 The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated. Х YES Х

8

Night work — shift work — patterns of

work - Length of night work

(1)(a)"Member States shall take the measures necessary to ensure that normal hours of work for night workers do not exceed an average of eight hours in any 24-hour period; "

X YES X

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(1)(b)Member States shall take the measures necessary to ensure that night workers whose work involves special hazards or heavy physical or mental strain do not work more than eight hours in any period of 24 hours during which they perform night work.

Х Х

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(2)For the purposes of point (b), work involving special hazards or heavy physical or mental strain shall be defined by national legislation and/or practice or by collective agreements or agreements concluded between the two sides of industry, taking account of the specific effects and hazards of night work.

Х Х

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Night work — shift work — patterns of work - Health assessment and transfer of night

workers to day work

1(a) Member States shall take the measures necessary to ensure that night workers are entitled to a free health assessment before their assignment and thereafter at regular intervals; X YES X

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workers to day work

1(b)Member States shall take the measures necessary to ensure that night workers suffering from health problems recognised as being connected with the fact that they perform night work are transferred whenever possible to day work to which they are suited.

X YES X

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workers to day work

2 The free health assessment referred to in paragraph 1(a) must comply with medical confidentiality. Х NO Х Х

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workers to day work

3 The free health assessment referred to in paragraph 1(a) may be conducted within the national health system. X YES X

10


work - Guarantees for night-time working

(1)Member States may make the work of certain categories of night workers subject to certain guarantees, under conditions laid down by national legislation and/or practice, in the case of workers who incur risks to their safety or health linked to night-time working.

Х Х

11


work - Notification of regular use of night

workers

(1) Member States shall take the measures necessary to ensure that an employer who regularly uses night workers brings this information to the attention of the competent authorities if they so request. Х Х

12

"Night work — shift work — patterns of work - Safety and health protection

"

1(a) Member States shall take the measures necessary to ensure that night workers and shift workers have safety and health protection appropriate to the nature of their work; Х YES Х

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Night work — shift work — patterns of work - Safety and health protection

1(b)Member States shall take the measures necessary to ensure that appropriate protection and prevention services or facilities with regard to the safety and health of night workers and shift workers are equivalent to those applicable to other workers and are available at all times.

Х YES Х

13Night work — shift work — patterns of

work - Pattern of work(1)

Member States shall take the measures necessary to ensure that an employer who intends to organise work according to a certain pattern takes account of the general principle of adapting work to the worker, with a view, in particular, to alleviating monotonous work and work at a predetermined work rate, depending on the type of activity, and of safety and health requirements, especially as regards breaks during working time.

Х YES Х

14

Miscellaneous provisions - More

specific Community provisions

(1) This Directive shall not apply where other Community instruments contain more specific requirements relating to the organisation of working time for certain occupations or occupational activities. X X

15Miscellaneous

provisions - More favourable provisions

(1)

This Directive shall not affect Member States' right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers.

X YES X

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16Miscellaneous

provisions - Reference periods

1(a)"Member States may lay down, for the application of Article 5 (weekly rest period), a reference period not exceeding 14 days; "

Х

16Miscellaneous


1(b)(i) Member States may lay down, for the application of Article 6 [maximum weekly working time], a reference period not exceeding four months. X YES X

16Miscellaneous


1(b)(ii) The periods of paid annual leave, granted in accordance with Article 7, and the periods of sick leave shall not be included or shall be neutral in the calculation of the average; X YES X

16Miscellaneous


1(c)Member States may lay down, for the application of Article 8 (length of night work), a reference period defined after consultation of the two sides of industry or by collective agreements or agreements concluded between the two sides of industry at national or regional level.

X YES

16Miscellaneous


(2) If the minimum weekly rest period of 24 hours required by Article 5 falls within that reference period, it shall not be included in the calculation of the average. X YES

17Derogations

and exceptions - Derogations

1(a)

With due regard for the general principles of the protection of the safety and health of workers, Member States may derogate from Articles 3 to 6 [Daily rest; Breaks; Weekly rest period; and Maximum weekly working time] , 8 [Length of night work] and 16 [Reference periods] when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of managing executives or other persons with autonomous decision-taking powers;

X YES

17Derogations


1(b)

"With due regard for the general principles of the protection of the safety and health of workers, Member States may derogate from Articles 3 to 6 [Daily rest; Breaks; Weekly rest period; and Maximum weekly working time] , 8 [Length of night work] and 16 [Reference periods] when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of family workers; or "

X YES

17Derogations


1(c)

With due regard for the general principles of the protection of the safety and health of workers, Member States may derogate from Articles 3 to 6 [Daily rest; Breaks; Weekly rest period; and Maximum weekly working time] , 8 [Length of night work] and 16 [Reference periods] when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of workers officiating at religious ceremonies in churches and religious communities.

X YES

17Derogations


2

Derogations provided for in paragraphs 3, 4 and 5 [Daily rest; Breaks; and Weekly rest period] may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agreements between the two sides of industry provided that the workers concerned are afforded equivalent periods of compensatory rest or that, in exceptional cases in which it is not possible, for objective reasons, to grant such equivalent periods of compensatory rest, the workers concerned are afforded appropriate protection.

X YES

17Derogations


3(a)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of activities where the worker's place of work and his place of residence are distant from one another, including offshore work, or where the worker's different places of work are distant from one another;

Х YES

17Derogations


3(b)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of security and surveillance activities requiring a permanent presence in order to protect property and persons, particularly security guards and caretakers or security firms;

Х

17Derogations


3(c)(i)

"In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of activities involving the need for continuity of service or production, particularly, services relating to the reception, treatment and/or care provided by hospitals or similar establishments, including the activities of doctors in training, residential institutions and prisons; "

Х

17Derogations


3(c)(ii)In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of activities involving the need for continuity of service or production, particularly, dock or airport workers;

Х YES

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17Derogations


3(c)(iii)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of activities involving the need for continuity of service or production, particularly, press, radio, television, cinematographic production, postal and telecommunications services, ambulance, fire and civil protection services;

Х

17Derogations


3(c)(iv)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of activities involving the need for continuity of service or production, particularly, gas, water and electricity production, transmission and distribution, household refuse collection and incineration plants;

Х

17Derogations


3(c)(v)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of activities involving the need for continuity of service or production, particularly, industries in which work cannot be interrupted on technical grounds;

Х

17Derogations


3(c)(vi)In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of activities involving the need for continuity of service or production, particularly, research and development activities;

Х

17Derogations


3(c)(vii)In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of activities involving the need for continuity of service or production, particularly, agriculture;

Х

17Derogations


3(c)(viii)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of activities involving the need for continuity of service or production, particularly, workers concerned with the carriage of passengers on regular urban transport services;

Х

17Derogations


3(d)(i)In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], where there is a foreseeable surge of activity, particularly in agriculture;

X

17Derogations


3(d)(ii)In accordance with paragraph 2 of this Article derogations may be made Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], where there is a foreseeable surge of activity, particularly in tourism;

Х

17Derogations


3(d)(iii)In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], where there is a foreseeable surge of activity, particularly in postal services;

Х

17Derogations


3(e)(i)In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of persons working in railway transport whose activities are intermittent;

Х

17Derogations


3(e)(ii)In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of persons working in railway transport who spend their working time on board trains;

X

17Derogations


3(e)(iii)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of persons working in railway transport or whose activities are linked to transport timetables and to ensuring the continuity and regularity of traffic;

X

17Derogations


3(f)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the circumstances described in Article 5(4) of Directive 89/391/EEC [unusual and unforeseeable circumstances, beyond the employers' control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care];

X

17Derogations


3(g)In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in cases of accident or imminent risk of accident.

X

17Derogations


4(a)In accordance with paragraph 2 of this Article derogations may be made from Articles 3 [Daily rest] and 5 [Weekly rest period], in the case of shift work activities, each time the worker changes shift and cannot take daily and/or weekly rest periods between the end of one shift and the start of the next one;

X

17Derogations


4(b)In accordance with paragraph 2 of this Article derogations may be made from Articles 3 [Daily rest] and 5 [Weekly rest period], in the case of activities involving periods of work split up over the day, particularly those of cleaning staff.

X

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ADEQ

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L PO

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OF

LEG

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FULL

PART

IALL

Y

NO

N P

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FOR

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IN

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ENT

REM

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AC

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17Derogations


5(1)In accordance with paragraph 2 of this Article, derogations may be made from Article 6 [Maximum weekly working time] and Article 16(b) [the definition of its reference period not exceeding four months], in the case of doctors in training, in accordance with the provisions set out in the second to the seventh subparagraphs of this paragraph.

X

17Derogations


5(2) With respect to Article 6 [Maximum weekly working time] derogations referred to in the first subparagraph shall be permitted for a transitional period of five years from 1 August 2004. X

17Derogations


5(3)

Member States may have up to two more years, if necessary, to take account of difficulties in meeting the working time provisions with respect to their responsibilities for the organisation and delivery of health services and medical care. At least six months before the end of the transitional period, the Member State concerned shall inform the Commission giving its reasons, so that the Commission can give an opinion, after appropriate consultations, within the three months following receipt of such information. If the Member State does not follow the opinion of the Commission, it will justify its decision. The notification and justification of the Member State and the opinion of the Commission shall be published in the Official Journal of the European Union and forwarded to the European Parliament.

X

17Derogations


5(4)Member States may have an additional period of up to one year, if necessary, to take account of special difficulties in meeting the responsibilities referred to in the third subparagraph. They shall follow the procedure set out in that subparagraph.

X

17Derogations


5(5)Member States shall ensure that in no case will the number of weekly working hours exceed an average of 58 during the first three years of the transitional period, an average of 56 for the following two years and an average of 52 for any remaining period.

X

17Derogations


5(6)(a)

The employer shall consult the representatives of the employees in good time with a view to reaching an agreement, wherever possible, on the arrangements applying to the transitional period. Within the limits set out in the fifth subparagraph, such an agreement may cover the average number of weekly hours of work during the transitional period;

X

17Derogations


5(6)(b)

The employer shall consult the representatives of the employees in good time with a view to reaching an agreement, wherever possible, on the arrangements applying to the transitional period. Within the limits set out in the fifth subparagraph, such an agreement may cover the measures to be adopted to reduce weekly working hours to an average of 48 by the end of the transitional period.

X

17Derogations


5(7)

With respect to Article 16(b) [the definition of the reference period for the Maximum weekly working time, not exceeding four months] derogations referred to in the first subparagraph shall be permitted provided that the reference period does not exceed 12 months, during the first part of the transitional period specified in the fifth subparagraph, and six months thereafter.

X

18

Derogations and exceptions

- Derogations by collective agreements

(1)

Derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods] by means of collective agreements or agreements concluded between the two sides of industry at national or regional level or, in conformity with the rules laid down by them, by means of collective agreements or agreements concluded between the two sides of industry at a lower level.

X YES

18



(2)

Member States in which there is no statutory system ensuring the conclusion of collective agreements or agreements concluded between the two sides of industry at national or regional level, on the matters covered by this Directive, or those Member States in which there is a specific legislative framework for this purpose and within the limits thereof, may, in accordance with national legislation and/or practice, allow derogations from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods] by way of collective agreements or agreements concluded between the two sides of industry at the appropriate collective level.

X YES

18



(3)

"The derogations provided for in the first and second subparagraphs shall be allowed on condition that equivalent compensating rest periods are granted to the workers concerned or, in exceptional cases where it is not possible for objective reasons to grant such periods, the workers concerned are afforded appropriate protection. "

X YES

18



(4)(a) Member States may lay down rules for the application of this Article by the two sides of industry; and X YES

18



(4)(b) Member States may lay down rules for the extension of the provisions of collective agreements or agreements concluded in conformity with this Article to other workers in accordance with national legislation and/or practice Х YES Х

ARTI

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LEVEL OF COMPLIANCE

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FULL

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19

Derogations and exceptions - Limitations

to derogations from reference periods

(1)The option to derogate from Article 16(b) [referred to the definition of the reference period for the Maximum weekly working time, not exceeding four months], provided for in Article 17(3) and in Article 18, may not result in the establishment of a reference period exceeding six months.

Х

19



(2)

However, Member States shall have the option, subject to compliance with the general principles relating to the protection of the safety and health of workers, of allowing, for objective or technical reasons or reasons concerning the organisation of work, collective agreements or agreements concluded between the two sides of industry to set reference periods in no event exceeding 12 months.

Х

20

Derogations and exceptions - Mobile

workers and offshore work

1(1) Articles 3, 4, 5 and 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] shall not apply to mobile workers. X X YES X X

20



1(2)

Member States shall, however, take the necessary measures to ensure that such mobile workers are entitled to adequate rest, except in the circumstances laid down in Article 17(3)(f) [unusual and unforeseeable circumstances, beyond the employers' control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care] and (g) [in cases of accident or imminent risk of accident].

X YES X

20



2

Subject to compliance with the general principles relating to the protection of the safety and health of workers, and provided that there is consultation of representatives of the employer and employees concerned and efforts to encourage all relevant forms of social dialogue, including negotiation if the parties so wish, Member States may, for objective or technical reasons or reasons concerning the organization of work, extend the reference period referred to in Article 16(b) [referred to the definition of the reference period for the Maximum weekly working time, not exceeding four months] to 12 months in respect of workers who mainly perform offshore work.

Х

21

Derogations and exceptions - Workers on board seagoing fishing

vessels

1(1) Articles 3 to 6 [Daily rest; Breaks; Weekly rest period; and Maximum weekly working time] and 8 [Length of night work] shall not apply to any worker on board a seagoing fishing vessel flying the flag of a Member State. Х Х

21


vessels

1(2)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.

Х Х

21


vessels

2(1)(a)

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, the working hours are limited to a maximum number of hours which shall not be exceeded in a given period of time; or

Х Х

21


vessels

2(1)(b)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 minimum number of hours of rest are provided within a given period of time.

Х Х

21


vessels

2(2) 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. Х Х

21


vessels

3(a)(i) A maximum hours of work which shall not exceed 14 hours in any 24-hour period; and Х Х

21


vessels

3(a)(ii) A maximum hours of work which shall not exceed 72 hours in any seven-day period; Х Х

21


vessels

3(b)(i) A minimum hours of rest which shall not be less than 10 hours in any 24-hour period; and Х Х

ARTI

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ADEQ

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AND/

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OF

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FULL

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FOR

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vessels

3(b)(ii) A minimum hours of rest which shall not be less than 77 hours in any seven-day period. Х Х

21


vessels

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. Х

21


vessels

5(a)

"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 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 "

Х

21


vessels

5(b)

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 collective agreements or agreements between the two sides of industry.

Х

21


vessels

6The 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.

Х Х

21


vessels

7Members 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.

Х

22

Derogations and exceptions - Miscellaneous

provisions

1(a)

A Member State shall have the option not to apply Article 6 [maximum weekly working time], while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that no employer requires a worker to work more than 48 hours over a seven-day period, calculated as an average for the reference period referred to in Article 16(b), unless he has first obtained the worker's agreement to perform such work;

Х YES Х

22


provisions

1(b)

A Member State shall have the option not to apply Article 6 [maximum weekly working time], while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that no worker is subjected to any detriment by his employer because he is not willing to give his agreement to perform such work;

X YES

22


provisions

1(c)A Member State shall have the option not to apply Article 6 [maximum weekly working time], while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that the employer keeps up-to-date records of all workers who carry out such work;

Х YES Х

22


provisions

1(d)

A Member State shall have the option not to apply Article 6 [maximum weekly working time], while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that the records are placed at the disposal of the competent authorities, which may, for reasons connected with the safety and/or health of workers, prohibit or restrict the possibility of exceeding the maximum weekly working hours;

Х

22


provisions

1(e)

A Member State shall have the option not to apply Article 6 [maximum weekly working time], while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that the employer provides the competent authorities at their request with information on cases in which agreement has been given by workers to perform work exceeding 48 hours over a period of seven days, calculated as an average for the reference period referred to in Article 16(b).

Х

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FOR

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22


provisions

2(a)

Member States shall have the option, as regards the application of Article 7 [Annual leave], of making use of a transitional period of not more than three years from 23 November 1996, provided that during that transitional period every worker receives three weeks' paid annual leave in accordance with the conditions for the entitlement to, and granting of, such leave laid down by national legislation and/or practice; and

X YES

22


provisions

2(b)

Member States shall have the option, as regards the application of Article 7 [Annual leave], of making use of a transitional period of not more than three years from 23 November 1996, provided that during that transitional period the three-week period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

X YES

22


provisions

3 If Member States avail themselves of the options provided for in this Article, they shall forthwith inform the Commission thereof. X YES

23 Final provisions - Level of Protection (1)

Without prejudice to the right of Member States to develop, in the light of changing circumstances, different legislative, regulatory or contractual provisions in the field of working time, as long as the minimum requirements provided for in this Directive are complied with, implementation of this Directive shall not constitute valid grounds for reducing the general level of protection afforded to workers.

X YES X

TABLE OF CONCORDANCEDirective No. 2003/88/EC of the European Parliament and of the Council, of 4 November 2003, concerning certain aspects of the organization of working time

LIN

E

EU DIRECTIVE LEGAL PROVISIONS CORRESPONDING OR EQUIVALENT UKRAINIAN LEGAL PROVISIONS LEVEL OF COMPLIANCE

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1 1 Scope and definitions - Purpose and scope 1

This Directive lays down minimum safety and health requirements for the organisation of working time.

1.2. 1

The tasks of the Labour

Code of Ukraine

part two The labour legislation establishes a high level of working conditions, comprehensive protection of workers' labour rights. X YES X

NON-PROVIDED FOR. This national provision is too general and do not transpose this directive provision. In fact, this directive provision is specific and is only aimed at defining this directive's purpose (on itself) - which is the establishment of the minimum safety and health requirements for the organization of the working time. In order for this provision to be transposed, the law that transposes this directive should specify that it lays down minimum safety and health requirements for the organisation of working time.


This Directive lays down minimum safety and health requirements for the organisation of working time.

1.3. the preamble of the Law

The law defines the key provisions for implementation of employees' constitutional right to protection of their life and health in the labour context, to appropriate, safe, and healthy working conditions, with involvement of the respective public authorities it regulates relations between the employer and the employee in the field of labour safety, hygiene and the labour environment, and establishes a single procedure for labour protection organization in Ukraine.

X YES X

NON-PROVIDED FOR. Besides the fact that the national provision indicated is not law (as it is only foreseen in its preamble), its text is too general and do not transpose the directive provision. In fact, this directive provision is specific and is aimed at defining the purpose of the directive itself, which is the establishment of the minimum safety and health requirements for the organization of the working time. In order for this provision to be transposed, the law that transposes this directive should specify that it lays down minimum safety and health requirements for the organisation of working time.

3 1 Scope and definitions - Purpose and scope 2 (a)


1.1. 45

Everyone who works shall

have the right to rest.

part two The maximum length of working hours, the minimum duration of rest and the paid annual leave, holidays and days off, as well as the other terms of exercise of this right shall be determined by law.

X YES X

NON-PROVIDED FOR. This constitutional provision do not transpose this directive provision. It only states that "the maximum length of working hours, the minimum duration of rest and the paid annual leave, holidays and days off, as well as the other terms of exercise of this right shall be determined by law". Therefore, it is the law that determines such matters (as foreseen in this constitutional provision) that should be compared with this directive provision. Moreover, this directive provision is only focused on establishing that the scope of this directive is applicable to minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time. In order for this provision to be transposed, the law that transposes this directive should thus specify that it is applicable to minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time.

LIN

EEU DIRECTIVE LEGAL PROVISIONS CORRESPONDING OR EQUIVALENT UKRAINIAN LEGAL PROVISIONS LEVEL OF COMPLIANCE

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4 1 Scope and definitions - Purpose and scope 2 (a)


1.2. 2The key labour

rights of employees

part two Workers have the right to rest in accordance with the laws limiting the working day and the working week and those on annual paid leaves, the right to healthy and safe working conditions

X YES X

NON-PROVIDED FOR. This constitutional provision do not transpose this directive provision. It only states that "the maximum length of working hours, the minimum duration of rest and the paid annual leave, holidays and days off, as well as the other terms of exercise of this right shall be determined by law". Therefore, it is the law that determines such matters (as foreseen in this constitutional provision) that should be compared with this directive provision. Moreover, this directive provision is only focused on establishing that the scope of this directive is applicable to minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time. In order for this provision to be transposed, the law that transposes this directive should thus specify that it is applicable to minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time.

5 1 Scope and definitions - Purpose and scope 2 (b)

This Directive applies to certain aspects of night work, shift work and patterns of work.

1.2. 54 Work duration at night time

" When working at night, the established duration of work (shift) shall be reduced by one hour. This rule shall not apply to workers who already have shorter working hours (paragraph 2, part one and part three, Article 51). Duration of night work shall be equal to that in the daytime in cases where it is required due to production conditions, in particular at continuous production, as well as when working in shifts with a six-day working week with one day off. Night time is time from 10 pm till 6 am."

X YES X

NON-PROVIDED FOR. This national provision misses the point. The directive provision is only focused on stating that the directive is applicable to certain aspects of night work, shift work and patterns of work, whereas the national provision is specifically addressing, in concrete, the duration of night work and shift work. In order for this provision to be transposed, the law that transposes this directive should specify that it is applicable to certain aspects of night work, shift work and patterns of work.



1.2. 57 The start and end of work

The time of the beginning and end of daily work (shift) shall be set with internal labour regulations and shift schedules in accordance with laws.

X YES X

NON-PROVIDED FOR. This national provision misses the point. The directive provision is only focused on stating that the directive is applicable to certain aspects of night work, shift work and patterns of work, whereas the national provision foresees that the time of the beginning and end of daily work (shift) shall be set with internal labour regulations and shift schedules in accordance with laws. In order for this provision to be transposed, the law that transposes this directive should specify that it is applicable to certain aspects of night work, shift work and patterns of work.



1.2. 58 Work in shifts

" In case of work in shifts, workers uniformly alternate in shifts in accordance with procedures established by internal labour regulations. Switching from one shift to another, as a rule, should take place every working week at hours as defined by shift schedules."

X YES X

to supplement in part of avoiding

monotony, excessive regularity, and

rotation

NON-PROVIDED FOR. This national provision misses the point. The directive provision is only focused on stating that the directive is applicable to certain aspects of night work, shift work and patterns of work, whereas the national provision is specifically addressing, in concrete, the rules applicable to shift work. In order for this provision to be transposed, the law that transposes this directive should specify that it is applicable to certain aspects of night work, shift work and patterns of work.

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1.2. 59 Breaks between shifts

" Duration of work breaks between shifts must be no less than twice the duration of work in the previous shift (including the time of lunch break). It shall be prohibited to appoint a worker to work during two shifts in a row."

X YES X

NON-PROVIDED FOR. This national provision misses the point. The directive provision is only focused on stating that the directive is applicable to certain aspects of night work, shift work and patterns of work, whereas the national provision is specifically addressing, in concrete, the rules applicable to shift work. In order for this provision to be transposed, the law that transposes this directive should specify that it is applicable to certain aspects of night work, shift work and patterns of work.

9 1 Scope and definitions - Purpose and scope 3 (1)


1.2. 3Regulation of labour relations

" Labour legislation regulates labour relations of employees at all enterprises, institutions, organizations irrespective of their forms of ownership, type of activity, and sectoral affiliation, as well as of entities working under a labour contract with individuals. The peculiarities of work of cooperative members and their associations, collective agricultural enterprises, farms, and employees of enterprises with foreign investments shall be determined by the legislation and their statutes. At the same time, the guarantees of employment, occupational safety, labour of women, youth, and disabled individuals shall be provided in accordance with the procedures laid down in the labour legislation."

X YES X

NON-PROVIDED FOR. The national provision indicated is too general and, apparently, it concerns the definition of wider scope of the labour code, whereas the scope of this directive provisions are more narrow, as it excludes or derogates from its application scope: certain types of workers; some private and public activities; some occupations and occupational activities already regulated by other Community instruments; etc. In order for this provision to be transposed, the law that transposes this directive should thus specify, in more detail, to whom the established minimum safety and health requirements for the organization of working time are applied to.

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1.2. 7

Peculiarities of labour regulation for certain

categories of workers

part one

Peculiarities of labour regulation for persons working in areas with specific natural geographic and geological conditions and conditions posing high risks for health, temporary and seasonal workers, as well as workers employed by individuals under a labour contract, additional (except as stipulated in Articles 37 and 41 of this Code) grounds for termination of a labour contract for certain categories of employees under certain conditions (violation of the established rules of recruitment, etc.) are established in the legislation.

X YES X

NON-PROVIDED FOR. The national provision indicated misses the point. This directive provision is aimed at specifying the scope of the application of the minimum safety and health requirements for the organization of working time that it establishes, whereas the national provision only states that the specificities of the labour regulations (e.g., grounds for termination of a labour contract ) for certain type of workers (e.g., working in areas with specific natural geographic and geological conditions and conditions posing high risks for health; temporary and seasonal workers; as well as workers employed by individuals under a labour contracts) are established in the legislation. As such, and in order for this provision to be transposed, the law that transposes this directive should specify, in more detail, to whom the established minimum safety and health requirements for the organization of working time are applied to.

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1.2. 8

Regulation of labour relations

of citizens working

outside of their states

part one

Labour relations of Ukrainian citizens working abroad and labour relations of foreign citizens working at enterprises, institutions, and organizations of Ukraine shall be regulated in accordance with the Law of Ukraine On the International Private Law.

X YES X

NON-PROVIDED FOR. The national provision indicated misses the point. Apparently, it only refers to the establishment of the law applicable to the employment relation, depending on the nationality of the employers and workers concerned. This directive provision, however, is only focused on the definition of the application scope of the directive, excluding and derogating from its application: certain types of workers; some private and public activities; some occupations and occupational activities already regulated by other Community instruments; etc. In order for this provision to be transposed, the law that transposes this directive should thus specify, in more detail, to whom the established minimum safety and health requirements for the organization of working time are applied to.


This Directive shall not apply to seafarers, as defined in Directive 1999/63/EC without prejudice to Article 2(8) of this Directive [i.e., certain provisions apply to offshore workers when the work is performed from a vessel - see articles 2(8), 20(2) and 20(3).].

1.2. 3Regulation of labour relations

part one

Labour legislation regulates labour relations of employees at all enterprises, institutions, organizations irrespective of their forms of ownership, type of activity, and sectoral affiliation, as well as of entities working under a labour contract with individuals.

Х Х

NON-PROVIDED FOR: In order to transpose this directive provision, the national legislation that transpose the Directive 2003/88/EC has to specify that it shall not apply to Seafarers (without prejudice to article 2(8) of this Directive, .i.e. except for some provisions that apply to offshore workers engaged in work performed from a vessel), as their working time is already regulated by another specific EU Directive - the Council Directive 1999/63/EC, of 21 June 1999, concerning the Agreement on the organization of working time of seafarers, concluded by the European Community Shipowners' Association (ECSA) and the Federation of Transport Workers' Unions in the European Union (FST).

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The provisions of Directive 89/391/EEC are fully applicable to the matters referred to in paragraph 2 [to the minimum safety and health requirements for the organisation of working time, regarding minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time, as well as concerning certain aspects of night work, shift work and patterns of work], without prejudice to more stringent and/or specific provisions contained in this Directive.

Х Х

NON-PROVIDED FOR: In order to transpose this directive provision, the national legislation that transpose the Directive 2003/88/EC (concerning certain aspects of the organisation of working time. ) has to specify that the EU Directive 89/391/EEC (EU OSH framework Directive) is fully applicable to the minimum safety and health requirements for the organization of working time (regarding minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time, as well as concerning certain aspects of night work, shift work and patterns of work), without prejudice to more stringent or specific provisions contained in the national provisions that transpose this specific Directive 2003/88/EC, concerning certain aspects of the organization of working time.

14 2 Scope and definitions - Definitions 1

Working time - means any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice;

Х Х NON-PROVIDED FOR.


Rest period - means any period which is not working time;



Night time - means any period of not less than seven hours, as defined by national law, and which must include, in any case, the period between midnight and 5.00;

1.2. 54 Work duration at night time part three Night time is time from 10 pm till 6 am. Х YES Х FULLY PROVIDED FOR.

17 2 Scope and definitions - Definitions 4 (a)

Night worker - means, on the one hand, any worker, who, during night time, works at least three hours of his daily working time as a normal course; and

X X NON-PROVIDED FOR.

18 2 Scope and definitions - Definitions 4 (b)(i)

Night worker - means, on the other hand, any worker who is likely during night time to work a certain proportion of his annual working time, as defined at the choice of the Member State concerned by national legislation, following consultation with the two sides of industry; or


19 2 Scope and definitions - Definitions 4 (b)(ii)

Night worker - means, on the other hand, any worker who is likely during night time to work a certain proportion of his annual working time, as defined at the choice of the Member State concerned, by collective agreements or agreements concluded between the two sides of industry at national or regional level.


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Shift work - means any method of organising work in shifts whereby workers succeed each other at the same work stations according to a certain pattern, including a rotating pattern, and which may be continuous or discontinuous, entailing the need for workers to work at different times over a given period of days or weeks.

1.2. 58 Work in shifts parts one, two

In case of work in shifts, workers uniformly alternate in shifts in accordance with procedures established by internal labour regulations. Switching from one shift to another, as a rule, should take place every working week at hours as defined by shift schedules.

X YES X

in terms of rotation of employees (the need to work at different

times during a certain period of days or

weeks)

PARTIALLY PROVIDED FOR: The directive provision is aimed at, specifically and only, defining the concept of "shift work". The national provision indicated, in turn, tries, at the same time, to define shift work ("as workers uniformly alternate in shifts in accordance with procedures established by internal labour regulations") and to establish a rule for the worker's shift change. As far as the concept is concerned, the national definition does not transpose the directive provision, as shift work is a method of organizing work in shifts that goes far beyond "workers uniformly alternate in shifts", being also characterized by the fact that workers succeed each other at the same work stations according to a certain pattern, including a rotating pattern, and which may be continuous or discontinuous (rather than uniformly), entailing the need for workers to work at different times over a given period of days or weeks.


Shift worker - means any worker whose work schedule is part of shift work.



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.



Offshore work - means work performed mainly on or from offshore installations (including drilling rigs), directly or indirectly in connection with the exploration, extraction or exploitation of mineral resources, including hydrocarbons, and diving in connection with such activities, whether performed from an offshore installation or a vessel.



Adequate rest - means 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.


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25 3


time - Daily rest

(1)

Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.

1.2. 59 Breaks between shifts

parts one, two

" Duration of work breaks between shifts must be no less than twice the duration of work in the previous shift (including the time of lunch break). It shall be prohibited to appoint a worker to work during two shifts in a row."

X YES X

NON-PROVIDED FOR: The national provision indicated misses the point. It is only focused on the breaks between shifts, whereas the directive provision concerns the obligation of the Member States to ensure that the workers enjoy a "window" of daily rest of at least 11 consecutive hours, between two consecutive days of work, regardless of the type of organization of the working time adopted (night work, day work, shift work, etc.). Moreover, the national provision should replace the term "break" by "daily rest", as they does not have the same meaning.

26 4


time - Breaks

(1)

Member States shall take the measures necessary to ensure that, where the working day is longer than six hours, every worker is entitled to a rest break, the details of which, including duration and the terms on which it is granted, shall be laid down in collective agreements or agreements between the two sides of industry or, failing that, by national legislation.

1.2. 66 Break for rest and meals

parts one, four

" Employees shall be provided with a break for rest and meals lasting no more than two hours. The break shall not be included into working hours. A break for rest and meals shall be provided, as a rule, four hours after the start of work. At the works where breaks cannot be established due to production conditions, the worker shall be given the opportunity to take food during the working hours. The list of such works, the procedures and the place for taking food shall be established by the owner or the body authorized by the owner in agreement with the elective primary trade union organization (trade union representative) of the enterprise, institution, organization."

Х YES Х

FULLY PROVIDED FOR: considering that the exception mentioned ("At the works where breaks cannot be established due to production conditions") is foreseen in article 17(3) of this directive.

27 5



(1)

Member States shall take the measures necessary to ensure that, per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours' daily rest referred to in Article 3.

1.2. 67 Days off parts one, two

" In case of the five-day working week, employees shall have two days off weekly, and at the six-day working week - one day off. The common day off is Sunday. The second day off in case of the five-day working week, unless it is determined by law, shall be determined based on schedule of the enterprise, institution, organization agreed with the elective primary trade union organization (trade union representative) of the enterprise, institution, organization, and, as a rule, should be provided in a row with the common day off."

X YES X

PARTIALLY PROVIDED FOR: According to this directive provision, in the case of a "six-day working week", mentioned on the national provision, the workers should be granted, not only the referred to "one day off" but also, in addition, "the 11 hours' daily rest referred to in Article 3" of the directive.

28 5



(1)

Member States shall take the measures necessary to ensure that, per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours' daily rest referred to in Article 3.

1.2. 70Duration of the weekly

continuous rest

Duration of the weekly continuous rest must be at least forty-two hours. Х YES Х FULLY PROVIDED FOR.

29 5



(2)

If objective, technical or work organisation conditions so justify, a minimum rest period of 24 hours may be applied

1.2. 70Duration of the weekly

continuous rest

Duration of the weekly continuous rest must be at least forty-two hours. Х YES Х FULLY PROVIDED FOR.

30 6


working time

(1)(a)


1.2. 50 The normal work duration

" The normal working hours of employees cannot exceed 40 hours per week. Enterprises and organizations, when concluding a collective agreement, may establish a shorter standard working time duration than the one stipulated in part one of this Article."

Х YES Х FULLY PROVIDED FOR.

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31 6


working time

(1)(a)


1.2. 51 The reduced work duration

" The reduced work duration shall be set: 1) for workers aged from 16 to 18 years - 36 hours per week, for persons aged from 15 to 16 (students aged from 14 to 15 working during their holidays) - 24 hours per week. Duration of working hours of students who work during the school year in their free time may not exceed half of the maximum working hours, as stipulated in paragraph one of this item, for persons of the corresponding age; 2) for workers engaged at work in harmful working conditions - no more than 36 hours per week. The list of industries, workshops, professions, and positions exposed to harmful working conditions, working at which implies the right to a shorter work duration, shall be approved in accordance with the procedures established by law. Moreover, the legislation establishes reduced working hours for certain categories of workers (teachers, doctors, etc.). Reduced working hours may be established at their own expense by enterprises and organizations for women having children under the age of fourteen or a disabled child."


32 6


working time

(1)(b)

Member States shall take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers, the average working time for each seven-day period, including overtime, does not exceed 48 hours.

1.2. 50 The normal work duration

" The normal working hours of employees cannot exceed 40 hours per week. Enterprises and organizations, when concluding a collective agreement, may establish a shorter standard working time duration than the one stipulated in part one of this Article."

X YES X

PARTIALLY PROVIDED FOR: The national provision does not ensure that the AVERAGE working time for each seven-day period (INCLUDING OVERTIME) does not exceed 48 hours. In fact, and considering that the limit for overtime is only 4 hours a day (for two consecutive days), a worker can easily exceed 48 hours of work per week (e.g., if he works 2 hours of overtime per day). This is particularly true when looking at the grounds for requiring working time (which are very wide) as well as the legal possibility for the workers with rotational scheme of work organization working up to 12 hours a day. As such, in order to transpose this directive provision, the national one should establish, instead, that "the average working time for each seven-day period, including overtime, does not exceed 48 hours".

33 6


working time

(1)(b)

Member States shall take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers, the average working time for each seven-day period, including overtime, does not exceed 48 hours.

1.2. 65 The limits of overtime work part one Overtime work must not exceed for each employee four hours for two

consecutive days, and 120 hours per year. X YES X

PARTIALLY PROVIDED FOR: The national provision does not ensure that the AVERAGE working time for each seven-day period (INCLUDING OVERTIME) does not exceed 48 hours. In fact, and considering that the limit for overtime is only 4 hours a day (for two consecutive days), a worker can easily exceed 48 hours of work per week (e.g., if he works 2 hours of overtime per day). This is particularly true when looking at the grounds for requiring working time (which are very wide) as well as the legal possibility for the workers with rotational scheme of work organization working up to 12 hours a day. As such, in order to transpose this directive provision, the national one should establish, instead, that "the average working time for each seven-day period, including overtime, does not exceed 48 hours".

34 7


time - Annual leave

1

Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

1.2. 75Duration of the

basic annual leave

part one The basic annual leave shall be provided for employees for a period of no less than 24 calendar days per working year performed, which is counted starting from the date of signing the labour contract.

X YES X X

CONTRADICTORY: The national provision indicated is contradictory with this directive provision. According to this directive provision, the paid annual leave to which workers should be entitled is 4 weeks (or equivalent, e.g.: 1 month, 30 calendar days, or 22 working days). In order to transpose this directive provision, the national provision should extend the number of days (to 30 calendar days or to 22 working days) of paid annual leave to which the workers are entitled to.

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35 7


time - Annual leave

1

Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.

1.4. 6

The basic annual

leave and its duration


X YES X X

CONTRADICTORY: The national provision indicated is contradictory with this directive provision. According to this directive provision, the paid annual leave to which workers should be entitled is 4 weeks (or equivalent, e.g.: 1 month, 30 calendar days, or 22 working days). In order to transpose this directive provision, the national provision should extend the number of days (to 30 calendar days or to 22 working days) of paid annual leave to which the workers are entitled to.

36 7


time - Annual leave

2

The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

1.2. 83

The monetary compensation

for unused annual leaves

part one If a worker is dismissed, a monetary compensation for all unused days of his/her annual leave shall be paid to him/her X YES X

NON-PROVIDED FOR: This national provision misses the point. The directive provision is aimed at avoiding that the worker's minimum period of annual leave could be replaced by any compensation, in situations other than the termination of the employment relationship, whereas the latter is precisely the focus of the national provision.

37 7


time - Annual leave

2


1.2. 83



part four If a worker wishes so, part of his/her annual leave shall be replaced with a monetary compensation. Thus, the duration of the employee's annual and additional leaves shall not be less than 24 calendar days.

Х YES Х

CONTRADICTORY: This national provision allows the replacement of the minimum period of annual leave by a monetary compensation in situations other than the termination of the employment relationship, which is contradictory with this directive provision.

38 7


time - Annual leave

2


1.4. 24



part one If a worker is dismissed, a monetary compensation for all unused days of his/her annual leave shall be paid to him/her X YES X

NON-PROVIDED FOR: This national provision misses the point. The directive provision is aimed at avoiding that the worker's minimum period of annual leave could be replaced by any compensation, in situations other than the termination of the employment relationship, whereas the latter is precisely the focus of the national provision.

39 7


time - Annual leave

2


1.4. 24




Х YES Х

CONTRADICTORY: This national provision allows the replacement of the minimum period of annual leave by a monetary compensation in situations other than the termination of the employment relationship, which is contradictory with this directive provision.

40 8Night work — shift work

— patterns of work - Length of night work

(1)(a)

"Member States shall take the measures necessary to ensure that normal hours of work for night workers do not exceed an average of eight hours in any 24-hour period; "



X YES X

PARTIALLY PROVIDED FOR: The national provision does not "ensure that normal hours of work for night workers do not exceed an average of eight hours in any 24-hour period". Moreover, any derogation of the general rule foreseen in this directive provision should only be allowed in accordance with the exceptions provided for in article 17(3) of this directive.



(1)(a)

"Member States shall take the measures necessary to ensure that normal hours of work for night workers do not exceed an average of eight hours in any 24-hour period; "



X YES X

PARTIALLY PROVIDED FOR: The national provision does not "ensure that normal hours of work for night workers do not exceed an average of eight hours in any 24-hour period". Moreover, any derogation of the general rule foreseen in this directive provision should only be allowed in accordance with the exceptions provided for in article 17(3) of this directive.



(1)(b)

Member States shall take the measures necessary to ensure that night workers whose work involves special hazards or heavy physical or mental strain do not work more than eight hours in any period of 24 hours during which they perform night work.


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(2)

For the purposes of point (b), work involving special hazards or heavy physical or mental strain shall be defined by national legislation and/or practice or by collective agreements or agreements concluded between the two sides of industry, taking account of the specific effects and hazards of night work.


44 9

Night work — shift work — patterns of work -

Health assessment and transfer of night workers

to day work

1(a)

Member States shall take the measures necessary to ensure that night workers are entitled to a free health assessment before their assignment and thereafter at regular intervals;

1.2. 169

Compulsory medical

examinations of certain


" The owner or a body the owner authorizes shall be obliged to arrange at its own expenses performance of the initial (when hiring) and periodic (during the labour activity) medical examinations of workers engaged in heavy work, work with harmful or hazardous working conditions, or those where there is a need of professional selection, as well as an annual compulsory medical examination of individuals under the age of 21. The list of occupations where employees are subject to medical examination, the terms and procedures for its implementation shall be established by the central executive authority determining the public policy in the field of health care, in agreement with the central executive authority determining the public policy in the field of labour protection."

X YES X

NON-PROVIDED FOR: The national provision indicated only ensures the free health assessment (at hiring and periodically) to certain type of workers (e.g., workers engaged in heavy work, work with harmful or hazardous working conditions, or those where there is a need of professional selection, as well as the ones under the age of 21) and not specifically to the night workers. In addition, it does not foresee such free health assessments before their assignment, bust just at hiring and periodically, during the labour activity.

45 9



to day work

1(b)

Member States shall take the measures necessary to ensure that night workers suffering from health problems recognised as being connected with the fact that they perform night work are transferred whenever possible to day work to which they are suited.

1.2. 170 Moving to easier work

" The workers who because of their health status require easier work must be transferred, with their consent, to such work in accordance with the medical report - temporarily or without term limitation - by the owner or the body authorized by the owner. When transferred due to his/her health status to easier lower-paid work, the employee shall retain the previous average wages for two weeks from the date of transfer, and in cases stipulated by the legislation of Ukraine the previous average wages shall be maintained for the entire period of performing lower-paid work, or financial support shall be provided under the compulsory state social insurance."

X YES X

NON-PROVIDED FOR: This directive provision is focused, specifically, on ensuring that night workers, suffering from health problems - recognised as being connected with the fact that they perform night work -, are transferred, whenever possible, to day work to which they are suited. The national provision, on the other hand, besides being more general (thus not focusing specifically the night workers) is mainly concerned with the transfer of the workers to "easier work", and not, necessarily, to day work. Moreover, the provision regarding the reduction of the salary of the worker, besides apparently contradictory with this directive provision, seems also contrary to the International and European labour standards, concerning the worker's salary.

46 9



to day work

2

The free health assessment referred to in paragraph 1(a) must comply with medical confidentiality.

4.1. 2.16.

" Findings of workers' previous (periodic) medical examination and the Commission's conclusion on the health status shall be recorded in the Card of the employee subject to the preliminary (periodic) medical examination (hereinafter - the Worker Card)............ The employee's complaints about his/her health, the medical history, findings of medical examinations, laboratory, functional, and other tests, diagnosis, the conclusion about occupational aptitude of the employee to work in his/her profession shall be indicated in the Worker Card. The Worker Card contains confidential information, it shall be stored in the health care institution conducting medical examinations on the basis of a contract concluded with the employer throughout the employee's labour activity, it shall be provided to the Commission during medical examinations. ......... A copy of the Worker Card shall be kept in the archive of the health care facility that conducted medical examinations on the basis of a contract with the employer for 15 years after the employee's dismissal. "

Х NO Х Х

PARTIALLY PROVIDED FOR: The national provision indicated does not ensure the medical confidentiality of the workers' free health assessment data. Moreover, and besides referring exclusively to certain types of workers ((e.g., workers engaged in heavy work, work with harmful or hazardous working conditions, or those where there is a need of professional selection, as well as the ones under the age of 21) and not specifically to night workers, the legal act scope and legislative power should be scaled up.

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47 9



to day work

3

The free health assessment referred to in paragraph 1(a) may be conducted within the national health system.

4.1. 2.1.

The preliminary (periodic) medical examination of employees shall be performed by health care facilities classified in the second, first, the highest accreditation categories based on results of state accreditation, in accordance with the Procedures of State Accreditation of Health Care Facilities, approved with Resolution of the Cabinet of Ministers of Ukraine of July 15, 1997 No. 765, as well as by specialized health care facilities authorized to establish the final diagnosis of occupational diseases, the list of which is approved with Order of the Ministry of Health of Ukraine of March 25, 2003 No. 133, registered by Ministry of Justice of Ukraine on April 10, 2003 as No. 283/7604, higher medical educational institutions of the 3rd-4th accreditation levels having departments and courses on occupational diseases, conducting laboratory, functional, and other tests, and providing health care in the specialties as stipulated in Annexes 4 and 5, item 2.6 of this Procedure.

X YES X

NON-PROVIDED FOR: The national provision indicated misses the point. It states that the "the preliminary (periodic) medical examination of employees shall be performed by health care facilities classified in the second, first, the highest accreditation categories based on results of state accreditation", which, apparently, is a good practice. However, the directive provision is focused on establishing the legal provision, not indicated in the national legislation, that foresees that "the free health assessment referred to in paragraph 1(a) may be conducted within the national health system". It means the national legislation should specifically foresee that such free health assessment may be performed within the national health system, regardless of the type or accreditation procedures of such health care facilities.

48 10


work - Guarantees for night-time working

(1)

Member States may make the work of certain categories of night workers subject to certain guarantees, under conditions laid down by national legislation and/or practice, in the case of workers who incur risks to their safety or health linked to night-time working.


49 11


Notification of regular use of night workers

(1)

Member States shall take the measures necessary to ensure that an employer who regularly uses night workers brings this information to the attention of the competent authorities if they so request.


50 12

"Night work — shift work — patterns of

work - Safety and health protection

"

1(a)

Member States shall take the measures necessary to ensure that night workers and shift workers have safety and health protection appropriate to the nature of their work;

1.2. 169

Compulsory medical

examinations of certain


" The owner or a body the owner authorizes shall be obliged to arrange at its own expenses performance of the initial (when hiring) and periodic (during the labour activity) medical examinations of workers engaged in heavy work, work with harmful or hazardous working conditions, or those where there is a need of professional selection, as well as an annual compulsory medical examination of individuals under the age of 21. The list of occupations where employees are subject to medical examination, the terms and procedures for its implementation shall be established by the central executive authority determining the public policy in the field of health care, in agreement with the central executive authority determining the public policy in the field of labour protection."

Х YES Х

NON-PROVIDED FOR: The national provision misses the point. It is specifically focused on the provision of medical examination and only to a specific category of workers (which, by the way, are not necessarily night workers or shift workers). The directive provision, however, is aimed at ensuring that night workers and shift workers are provided with the necessary safety and health services (and not just medical exams) appropriate to the nature of their work.

51 12



"

1(a)


1.2. 24 Conclusion of a labour contract part five

It shall be prohibited to conclude a labour contract with a citizen to whom, according to a medical report, the proposed work is contraindicated due to his/her health status.

Х YES Х

NON-PROVIDED FOR: The national provision misses the point. It is specifically focused on the prohibition of the conclusion of a labour contract when the work concerned is contraindicated by a medical report. The directive provision, however, is not concerned with admission health assessments. It is aimed at ensuring that night workers and shift workers are provided with the necessary safety and health services (and not just medical exams) appropriate to the nature of their work.

52 12



"

1(a)


1.3. 5

Labour protection

rights when signing a

labour contract

part three

A worker cannot be offered a job that, based on a medical conclusion, is contraindicated due to his/her health status. Performance of high-risk work and of that requiring professional selection shall be allowed to individuals in the presence of a conclusion of psycho-physiological examination.

Х YES Х

NON-PROVIDED FOR: The national provision misses the point. It is focused on the requirements of medical examination for the performance of high-risk work and of that requiring professional selection. The directive provision, however, is aimed at ensuring that night workers and shift workers are provided with the necessary safety and health services (and not just medical exams) appropriate to the nature of their work.

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"

1(a)


1.3. 6

Worker's rights to labour

protection at workplace

part five

An employee who, due to his/her health status based on a medical report, needs to be provided with easier work, shall be transferred by the employer, with the consent of the worker, to such work, for the term specified in the medical report, and, if necessary, a shorter working day shall be established and training of the employee to acquire another profession shall be organized in accordance with the law.

Х YES Х

NON-PROVIDED FOR: The national provision misses the point. It is focused on the transfer of a worker to an "easier work" due to health considerations, on the basis of a medical report, which, moreover, are not necessarily night workers or shift workers. The directive provision, however, is aimed at ensuring that night workers and shift workers are provided with the necessary safety and health services (and not just medical exams) appropriate to the nature of their work.

54 12



1(b)

Member States shall take the measures necessary to ensure that appropriate protection and prevention services or facilities with regard to the safety and health of night workers and shift workers are equivalent to those applicable to other workers and are available at all times.

1.3. 2 The scope of the Law

The Law applies to all legal entities and individuals who, according to laws, use hired labour, as well as all employees. Х YES Х

NON-PROVIDED FOR: The national provision misses the point. In order to transpose the directive provision, the national provision should specifically foresee that the appropriated safety and health services and facilities provided to night workers and shift workers are equivalent to the ones provided to the other workers and (taking into account that the former usually work in hours and days different than the typical business hours and business days), that they are available at all times.


— patterns of work - Pattern of work

(1)


1.3. 4

Public policy in the field of labour

protection

paragraphs one and six of

part two

" Public policy in the field of labour protection is based on the principles of: the priority of workers' life and health, the employer's full responsibility for creation of proper, safe, and healthy working conditions; adaptation of labour processes to the employee's capabilities taking into account his/her health and psychological status; "

Х YES Х

NON-PROVIDED FOR: The national provision is too general and is a policy statement, not an imposition of an obligation to the employers. In order to transpose the directive provision, the national provision should specifically establish the obligation of the employer who intends to organise work according to a certain pattern, to take account of the general principle of adapting work to the worker, with a view, in particular, to alleviating monotonous work and work at a predetermined work rate, depending on the type of activity, and of safety and health requirements, especially as regards breaks during working time.



(1)


1.2. 88

The working conditions

that must be taken into

account when developing production

standards (time standards) and

standards of service

item five, part one

Production standards (time standards) and standards of service shall be determined on the basis of normal working conditions, which are understood as: 5) healthy and safe working conditions (observance of occupational safety rules and standards, necessary lighting, heating, ventilation, elimination of harmful effects of noise, radiation, vibration, and other factors that adversely affect workers' health, etc.).

Х YES Х

NON-PROVIDED FOR: The national provision does not transpose the directive provision, as it is too general and do not impose to employers the obligation to take to take account of the general principle of adapting work to the worker, with a view, in particular, to alleviating monotonous work and work at a predetermined work rate, depending on the type of activity, and of safety and health requirements, especially as regards breaks during working time, when he intends to organise work according to a certain pattern.



(1)


1.5. 15

Organization of labour

remuneration at enterprises

part one

Forms and systems of labour remuneration, labour standards, tariffs, tariff plans, salary schemes, conditions for implementation and the amount of bonuses, surcharges, rewards and other incentive, compensatory, and guarantee payments shall be set by enterprises in the collective agreement with observance of the standards and guarantees provided for by laws, the general, sectoral (intersectoral), and territorial agreements. In the event that no collective agreement is concluded at the enterprise, the employer is obligated to agree these issues with the elective body of the primary trade union organization (trade union representative) representing interests of most of the employees, and in the absence thereof - with another authorized representative body.

Х YES Х

NON-PROVIDED FOR: The national provision indicated misses the point. It relates to the organization of labour remuneration at enterprises, whereas the directive provision concerns the employer obligation to take to take account of the general principle of adapting work to the worker, with a view, in particular, to alleviating monotonous work and work at a predetermined work rate, depending on the type of activity, and of safety and health requirements, especially as regards breaks during working time, when he intends to organise work according to a certain pattern.

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58 14Miscellaneous

provisions - More specific Community provisions

(1)

This Directive shall not apply where other Community instruments contain more specific requirements relating to the organisation of working time for certain occupations or occupational activities.

X X

NON-PROVIDED FOR: In order to transpose this directive provision, the national legislation that transposes this directive should provide that the transposed provisions will not apply where the provisions that transpose other Community instruments contain more specific requirements relating to the organisation of working time for certain occupations or occupational activities.

59 15Miscellaneous provisions

- More favourable provisions

(1)

This Directive shall not affect Member States' right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers.

1..2. 9-1.

Additional labour and

social benefits as compared

with the legislation

part one Enterprises, institutions, organizations within their powers and at their own expense may establish additional labour and social benefits for employees as compared with the legislation.

X YES X

NON-PROVIDED FOR: Although the sense of the national provision is close to what the directive provision foresees, it does not transpose the directive provision. In order to do that, the national law that transposes this directive provisions should estipulate that this directive provisions transposed to national law cannot prevent the application of national regulations or collective agreements more favourable to the protection of the safety and health of the workers.

60 16 Miscellaneous provisions - Reference periods 1(a)

"Member States may lay down, for the application of Article 5 (weekly rest period), a reference period not exceeding 14 days; "

ХNON-PROVIDED FOR. This possibility, however, does not necessarily have to be used.

61 16 Miscellaneous provisions - Reference periods 1(b)(i)

Member States may lay down, for the application of Article 6 [maximum weekly working time], a reference period not exceeding four months.

1.2. 61Summary

accounting of working hours

At continuously operating enterprises, institutions, organizations, as well as in individual industries, workshops, units, departments, and in certain types of work where based on conditions of production (work) the daily or weekly working hours established for this category of workers cannot be met, it shall be allowed - at an agreement with the elective body of the primary trade union organization (trade union representative) of the enterprise, institution, organization - to introduce summary accounting of working hours, so that the duration of working time over the accounted period did not exceed the normal number of working hours (Articles 50 and 51).

X YES X

NON-PROVIDED FOR: The national provision indicated do not provide for the directive provision. In order to transpose the directive provision, the national provision should be modified, as follows: 1. It should expressively stipulate that the "accounted period" cannot exceed 4 months; 2. It should be referred to the maximum weekly working time" (as the directive) and not to the "the normal number of working hours" (which does not include overtime); 3. It should replace the expression "accounted period" by "reference period".

62 16 Miscellaneous provisions - Reference periods 1(b)(ii)

The periods of paid annual leave, granted in accordance with Article 7, and the periods of sick leave shall not be included or shall be neutral in the calculation of the average;

1.2. 78

Exclusion of days of temporary

disability from annual leaves

The employee's days of temporary disability, certified in the prescribed manner, as well as pregnancy and delivery leaves shall not be included into annual leaves.

X YES X

NON-PROVIDED FOR: The national provision indicated misses the point. The directive provision is not regarding the calculation of the time of the annual leave. It is only aimed at stipulating that the periods od annual and sick leave should not be considered for the calculation of the averages (e.g., average of weekly working time, average length of night work).

63 16 Miscellaneous provisions - Reference periods 1(b)(ii)

The periods of paid annual leave, granted in accordance with Article 7, and the periods of sick leave shall not be included or shall be neutral in the calculation of the average;

1.4. 11 Transfer of the annual leave

item one, part two

" An annual leave shall be transferred to another period or extended if: 1) temporary disability of the worker, certified in accordance with the established procedures;"

X YES X

NON-PROVIDED FOR: The national provision indicated misses the point. The directive provision is not regarding the calculation of the time of the annual leave. It is only aimed at stipulating that the periods of annual and sick leave should not be considered for the calculation of the averages (e.g., average of weekly working time, average length of night work).

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64 16 Miscellaneous provisions - Reference periods 1(c)

Member States may lay down, for the application of Article 8 (length of night work), a reference period defined after consultation of the two sides of industry or by collective agreements or agreements concluded between the two sides of industry at national or regional level.

1.2. 54 Work duration at night time part two

Duration of night work shall be equal to that in the daytime in cases where it is required due to production conditions, in particular at continuous production, as well as when working in shifts with a six-day working week with one day off.

X YES

NON-PROVIDED FOR: The national provision indicated misses the point. The directive provision only states that it can be established, by collective agreements or agreements concluded between the two sides of industry at national or regional level, a reference period to be used on the calculation of the average length of night work during that given reference period, and assessment of the compliance with its limits, which can also be defined in average terms within a stipulated reference period. This possibility, however, does not necessarily have to be used.

65 16 Miscellaneous provisions - Reference periods (2)

If the minimum weekly rest period of 24 hours required by Article 5 falls within that reference period, it shall not be included in the calculation of the average.

X YES

NON-PROVIDED FOR: The directive provision is only aimed at stipulating that, when the minimum weekly rest period of 24 hours falls within the reference period for the calculation of the average length of night work, it shall not be included on the calculation of such average, as it does not correspond to working time, but to rest time. Moreover, it only makes sense to provide for the transposition of this directive provision if the previous directive provision regarding the possibility of calculation the length of nigh work in average terms is also transposed.

66 17 Derogations and exceptions - Derogations 1(a)


1.6. 6

The composition

of the Cabinet of Ministers of

Ukraine and the status of its

members

part three Positions of members of the Cabinet of Ministers of Ukraine are political ones not covered by the labour legislation and civil service laws. X YES

NON-PROVIDED FOR: The national provision indicated misses the point. The directive provision is general and is not specifically aimed at government members, but to the situations where specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves. The directive provision gives the possibility, in those cases (and with due regard for the general principles of the protection of the safety and health of the workers) of derogation from the provisions regarding "daily rest", "breaks", "weekly rest period", "maximum weekly working time", "length of night work" and "reference periods". This possibility, however, does not necessarily have to be used.



1.7. 2The Bar

Association of Ukraine

part one

The Ukrainian Bar Association is a non-governmental self-governing institute ensuring protection, representation, and provision of other types of legal aid on the professional basis, as well as independently addressing the Bar's organization and activities issues in the manner established by this Law.

X YES

NON-PROVIDED FOR. The national provision indicated misses the point. The directive provision is general and has nothing to do with "The Ukrainian Bar Association". The directive provision is only focused on giving the possibility (with due regard for the general principles of the protection of the safety and health of the workers) - in situations where specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves -, of derogation from the provisions regarding "daily rest", "breaks", "weekly rest period", "maximum weekly working time", "length of night work" and "reference periods". This possibility, however, does not necessarily have to be used.

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68 17 Derogations and exceptions - Derogations 1(b)

"With due regard for the general principles of the protection of the safety and health of workers, Member States may derogate from Articles 3 to 6 [Daily rest; Breaks; Weekly rest period; and Maximum weekly working time] , 8 [Length of night work] and 16 [Reference periods] when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of family workers; or "

1.8. 27Labour

relations in the farming sector

parts one, two

" Labour relations in the farming sector shall be based on labour of its members. In the case of production needs, a farm shall have the right to engage other citizens to work at it based on a labour agreement (contract). Labour relations of farm members shall be regulated by the Statute, and those among individuals involved to work under a labour agreement (contract) - by the labour legislation of Ukraine. "

X YES

NON-PROVIDED FOR: The national provision indicated is too general, addresses the labour relations in the farming sector and misses the point. In fact, this directive provision is focused on giving the possibility, in situations where the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of family workers (and with due regard for the general principles of the protection of the safety and health of the workers) of derogation from the provisions regarding "daily rest", "breaks", "weekly rest period", "maximum weekly working time", "length of night work" and "reference periods". This possibility, however, does not necessarily have to be used.

69 17 Derogations and exceptions - Derogations 1(c)

With due regard for the general principles of the protection of the safety and health of workers, Member States may derogate from Articles 3 to 6 [Daily rest; Breaks; Weekly rest period; and Maximum weekly working time] , 8 [Length of night work] and 16 [Reference periods] when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of workers officiating at religious ceremonies in churches and religious communities.

1.1. 35

Everyone shall have the right

to freedom of thought

and religion. This right shall

include the freedom to profess any

religion or not to profess any, to individually or collectively freely serve

religious cults and ritual

ceremonies, to conduct

religious activities.

" Exercise of this right may be limited by law only in the interests of protecting public order, health, and morals of the population, or protecting rights and freedoms of other individuals. The church and religious organizations in Ukraine shall be separated from the state, and the school - from the church. No religion can be recognized by the state as compulsory. No one can be released from his/her duties to the state or refuse to execute laws based on religious beliefs. In case performance of the military duty contradicts religious convictions of a citizen, performance of this duty shall be replaced with an alternative (non-military) service."

X YES

NON-PROVIDED FOR: The national constitutional provision indicated addresses the freedom of thought and religion and, thus, it misses the point. In fact, this directive provision is focused on giving the possibility, in situations where the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of workers officiating at religious ceremonies in churches and religious communities (and with due regard for the general principles of the protection of the safety and health of the workers) of derogation from the provisions regarding "daily rest", "breaks", "weekly rest period", "maximum weekly working time", "length of night work" and "reference periods". This possibility, however, does not necessarily have to be used.

70 17 Derogations and exceptions - Derogations 2


1.2. 61Summary



X YES

NON-PROVIDED FOR: This directive provision does not concerns derogations regarding the maximum weekly working time, but only regarding daily rest, breaks and weekly rest period. Moreover, the offered possibility for derogation, does not necessarily have to be used.

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1.2. 62 Restriction of overtime work

" Overtime work shall generally not be allowed. Overtime work shall be defined as work beyond the fixed working day (Articles 52, 53, and 61). The owner or a body authorized by the owner may apply overtime work only in exceptional cases, determined by the legislation and in part three of this article. The owner or a body authorized by the owner may use overtime work only in the following exceptional cases: 1) during work necessary for the state's defence, as well as for prevention of civil or natural disasters, industrial accidents, and for rapid elimination of their consequences;2) when performing public work necessary for water supply, gas supply, heating, lighting, sewage, transport, communications - to eliminate accidental or unexpected circumstances undermining their proper functioning;3) to complete, if necessary, the initiated work that, due to unforeseen circumstances or an occasional delay for technical conditions of production, could not be completed during normal working hours, when its termination could lead to damage or destruction of public or civil property, as well as in the case of need for urgent repair of machinery, machine tools, or other equipment, when their malfunction causes stoppage of work for a significant number of workers;4) if it is necessary to perform loading and unloading operations in order to prevent or eliminate idle periods of rolling stock or accumulation of stocks at departure and destination points;5) for continuation of work in the absence of the employee to start his/her shift, where the work does not allow for a break; in these cases, the owner or the body authorized by the owner shall be obliged to immediately take measures to replace the substituting worker with another employee."

Х YES

NON-PROVIDED FOR: The national provision indicated misses the point. It is focused on overtime, whereas the directive provision is concerned with the possibility of derogation of the application of the articles regarding daily rest, breaks and weekly rest period. Nevertheless, the offered possibility for derogation, does not necessarily have to be used.



1.2. 65 The limits of overtime work

" Overtime work must not exceed for each employee four hours for two consecutive days, and 120 hours per year. The owner or the body authorized by the owner shall keep records of overtime work for every employee."

Х YES

NON-PROVIDED FOR: The national provision indicated misses the point. It is focused on overtime, whereas the directive provision is concerned with the possibility of derogation of the application of the articles regarding daily rest, breaks and weekly rest period. Nevertheless, the offered possibility for derogation, does not necessarily have to be used.



1.2. 86

Introduction, replacement, and update

of labour standards

" Introduction, replacement, and update of labour standards shall be performed by the owner or the body authorized by the owner in agreement with the elective body of the primary trade union organization (trade union representative). The owner or the body authorized by the owner shall explain to workers the reasons for revision of labour standards, as well as the conditions under which the new rules apply. The owner or the body authorized by the owner shall inform employees about introduction of new standards and changes in current labour standards no later than one month before the introduction."

Х YES

NON-PROVIDED FOR: The national provision indicated is too general and misses the point. It is focused on the introduction, replacement and update of labour standards, whereas the directive provision establishes the possibility of derogation of the application of the articles regarding daily rest, breaks and weekly rest period (by means of collective agreements or agreements between the two sides of industry), provided that the workers concerned are afforded equivalent periods of compensatory rest or that, in exceptional cases in which it is not possible, for objective reasons, to grant such equivalent periods of compensatory rest, the workers concerned are afforded appropriate protection. Nevertheless, the offered possibility for derogation, does not necessarily have to be used.

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1.9. 1The collective contract and agreement

The collective contract, agreement shall be concluded on the basis of the current legislation, obligations undertaken by the parties to regulate production, labour, and socio-economic relations, and harmonization of interests of workers and employers.

Х YES

NON-PROVIDED FOR: The national provision indicated misses the point. It is specifically focused on the establishment of collective agreements, whereas the directive provision is concentrated in providing the possibility of derogation of the application of the articles regarding daily rest, breaks and weekly rest period (by means of collective agreements or agreements between the two sides of industry), provided that the workers concerned are afforded equivalent periods of compensatory rest or that, in exceptional cases in which it is not possible, for objective reasons, to grant such equivalent periods of compensatory rest, the workers concerned are afforded appropriate protection. Nevertheless, the offered possibility for derogation, does not necessarily have to be used.



4.2. 1.1.

" The rotational scheme is a special form of organization of labour based on use of labour resources outside of their place of permanent residence, provided that the workers' daily return to the place of permanent residence cannot be arranged. The work shall be organized according to a special labour regime, as a rule, with summary accounting of working hours, while rest between rotations shall be ensured in places of permanent residence. "

Х YES

NON-PROVIDED FOR: The national provision indicated misses the point. The directive provision is not concerned with the regulation of the rotational scheme of organization of the work. Rather, the directive provision is specifically focused on providing the possibility of derogation of the application of the articles regarding daily rest, breaks, weekly rest period, length of night work and reference periods, in the case of activities where the worker's place of work and his place of residence are distant from one another, including offshore work, or where the worker's different places of work are distant from one another. Nevertheless, the offered possibility for derogation, does not necessarily have to be used.



4.2. 4.3.

The duration of the daily (inter-shift) rest of employees, including lunch breaks, can be reduced to 12 hours. In this case, the hours of daily (inter-shift) rest not used, as well as the days of weekly rest, shall be summarized and provided in the form of additional days off from work (inter-rotational rest days) during the accounting period. The number of days of weekly rest in the current month must at least amount to the number of full weeks in this month. Weekly rest days can fall on any day of the week.

Х YES

NON-PROVIDED FOR: The national provision indicated misses the point. The directive provision is not concerned with the regulation of the breaks and daily and weekly rest, nor with the accounting regarding the periods not used. The directive provision is specifically focused on providing the possibility of derogation of the application of the articles regarding daily rest, breaks, weekly rest period, length of night work and reference periods, in the case of activities where the worker's place of work and his place of residence are distant from one another, including offshore work, or where the worker's different places of work are distant from one another. Nevertheless, the offered possibility for derogation, does not necessarily have to be used.


In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of security and surveillance activities requiring a permanent presence in order to protect property and persons, particularly security guards and caretakers or security firms;

Х

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest, breaks, weekly rest period, length of night work and reference periods (in the case of security and surveillance activities requiring a permanent presence in order to protect property and persons, particularly security guards and caretakers or security firms), does not necessarily have to be used.

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78 17 Derogations and exceptions - Derogations 3(c)(i)

"In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of activities involving the need for continuity of service or production, particularly, services relating to the reception, treatment and/or care provided by hospitals or similar establishments, including the activities of doctors in training, residential institutions and prisons; "

Х

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest, breaks, weekly rest period, length of night work and reference periods (in the case of activities involving the need for continuity of service or production, particularly, services relating to the reception, treatment and/or care provided by hospitals or similar establishments, including the activities of doctors in training, residential institutions and prisons), does not necessarily have to be used.

79 17 Derogations and exceptions - Derogations 3(c)(ii)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of activities involving the need for continuity of service or production, particularly, dock or airport workers;

Х YES

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest, breaks, weekly rest period, length of night work and reference periods (in the case of activities involving the need for continuity of service or production, particularly, dock or airport workers), does not necessarily have to be used.

80 17 Derogations and exceptions - Derogations 3(c)(iii)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of activities involving the need for continuity of service or production, particularly, press, radio, television, cinematographic production, postal and telecommunications services, ambulance, fire and civil protection services;

Х

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest, breaks, weekly rest period, length of night work and reference periods ( in the case of activities involving the need for continuity of service or production, particularly, press, radio, television, cinematographic production, postal and telecommunications services, ambulance, fire and civil protection services), does not necessarily have to be used.

81 17 Derogations and exceptions - Derogations 3(c)(iv)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of activities involving the need for continuity of service or production, particularly, gas, water and electricity production, transmission and distribution, household refuse collection and incineration plants;

Х

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest, breaks, weekly rest period, length of night work and reference periods (in the case of activities involving the need for continuity of service or production, particularly, gas, water and electricity production, transmission and distribution, household refuse collection and incineration plants), does not necessarily have to be used.

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82 17 Derogations and exceptions - Derogations 3(c)(v)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of activities involving the need for continuity of service or production, particularly, industries in which work cannot be interrupted on technical grounds;

Х

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest, breaks, weekly rest period, length of night work and reference periods (in the case of activities involving the need for continuity of service or production, particularly, industries in which work cannot be interrupted on technical grounds), does not necessarily have to be used.

83 17 Derogations and exceptions - Derogations 3(c)(vi)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of activities involving the need for continuity of service or production, particularly, research and development activities;

Х

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest, breaks, weekly rest period, length of night work and reference periods (in the case of activities involving the need for continuity of service or production, particularly, research and development activities), does not necessarily have to be used.

84 17 Derogations and exceptions - Derogations 3(c)(vii)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of activities involving the need for continuity of service or production, particularly, agriculture;

Х

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest, breaks, weekly rest period, length of night work and reference periods ( in the case of activities involving the need for continuity of service or production, particularly, agriculture), does not necessarily have to be used.

85 17 Derogations and exceptions - Derogations 3(c)(viii)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of activities involving the need for continuity of service or production, particularly, workers concerned with the carriage of passengers on regular urban transport services;

Х

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest, breaks, weekly rest period, length of night work and reference periods (in the case of activities involving the need for continuity of service or production, particularly, workers concerned with the carriage of passengers on regular urban transport services), does not necessarily have to be used.

86 17 Derogations and exceptions - Derogations 3(d)(i)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], where there is a foreseeable surge of activity, particularly in agriculture;

X

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest, breaks, weekly rest period, length of night work and reference periods (where there is a foreseeable surge of activity, particularly in agriculture), does not necessarily have to be used.

87 17 Derogations and exceptions - Derogations 3(d)(ii)

In accordance with paragraph 2 of this Article derogations may be made Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], where there is a foreseeable surge of activity, particularly in tourism;

Х

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest, breaks, weekly rest period, length of night work and reference periods (where there is a foreseeable surge of activity, particularly in tourism), does not necessarily have to be used.

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88 17 Derogations and exceptions - Derogations 3(d)(iii)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], where there is a foreseeable surge of activity, particularly in postal services;

Х

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest, breaks, weekly rest period, length of night work and reference periods (where there is a foreseeable surge of activity, particularly in postal services), does not necessarily have to be used.

89 17 Derogations and exceptions - Derogations 3(e)(i)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of persons working in railway transport whose activities are intermittent;

Х

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest, breaks, weekly rest period, length of night work and reference periods (in the case of persons working in railway transport whose activities are intermittent), does not necessarily have to be used.

90 17 Derogations and exceptions - Derogations 3(e)(ii)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of persons working in railway transport who spend their working time on board trains;

X

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest, breaks, weekly rest period, length of night work and reference periods (in the case of persons working in railway transport who spend their working time on board trains), does not necessarily have to be used.

91 17 Derogations and exceptions - Derogations 3(e)(iii)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the case of persons working in railway transport or whose activities are linked to transport timetables and to ensuring the continuity and regularity of traffic;

X

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest, breaks, weekly rest period, length of night work and reference periods (in the case of persons working in railway transport or whose activities are linked to transport timetables and to ensuring the continuity and regularity of traffic), does not necessarily have to be used.

92 17 Derogations and exceptions - Derogations 3(f)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in the circumstances described in Article 5(4) of Directive 89/391/EEC [unusual and unforeseeable circumstances, beyond the employers' control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care];

X

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest, breaks, weekly rest period, length of night work and reference periods (in the case of unusual and unforeseeable circumstances, beyond the employers' control, or exceptional events, the consequences of which could not have been avoided despite the exercise of all due care, foreseen in article 5(4) of Directive 89/391/EEC), does not necessarily have to be used.

93 17 Derogations and exceptions - Derogations 3(g)

In accordance with paragraph 2 of this Article derogations may be made from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods], in cases of accident or imminent risk of accident.

X

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest, breaks, weekly rest period, length of night work and reference periods (in cases of accident or imminent risk of accident), does not necessarily have to be used.

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In accordance with paragraph 2 of this Article derogations may be made from Articles 3 [Daily rest] and 5 [Weekly rest period], in the case of shift work activities, each time the worker changes shift and cannot take daily and/or weekly rest periods between the end of one shift and the start of the next one;

X

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest and weekly rest period (in the case of shift work activities, each time the worker changes shift and cannot take daily and/or weekly rest periods between the end of one shift and the start of the next one), does not necessarily have to be used.


In accordance with paragraph 2 of this Article derogations may be made from Articles 3 [Daily rest] and 5 [Weekly rest period], in the case of activities involving periods of work split up over the day, particularly those of cleaning staff.

X

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning daily rest and weekly rest period (in the case of activities involving periods of work split up over the day, particularly those of cleaning staff), does not necessarily have to be used.

96 17 Derogations and exceptions - Derogations 5(1)

In accordance with paragraph 2 of this Article, derogations may be made from Article 6 [Maximum weekly working time] and Article 16(b) [the definition of its reference period not exceeding four months], in the case of doctors in training, in accordance with the provisions set out in the second to the seventh subparagraphs of this paragraph.

X

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation from the application of the articles concerning the maximum weekly working time and the definition of its reference period not exceeding four months (in the case of doctors in training), does not necessarily have to be used.


With respect to Article 6 [Maximum weekly working time] derogations referred to in the first subparagraph shall be permitted for a transitional period of five years from 1 August 2004.

X

NON-PROVIDED FOR. However, the possibility offered by this directive provision, for derogation (for a transitional period of five years, from 1 August 2004) from the application of the article concerning the maximum weekly working time (in the case of doctors in training), does not necessarily have to be used.


Member States may have up to two more years, if necessary, to take account of difficulties in meeting the working time provisions with respect to their responsibilities for the organisation and delivery of health services and medical care. At least six months before the end of the transitional period, the Member State concerned shall inform the Commission giving its reasons, so that the Commission can give an opinion, after appropriate consultations, within the three months following receipt of such information. If the Member State does not follow the opinion of the Commission, it will justify its decision. The notification and justification of the Member State and the opinion of the Commission shall be published in the Official Journal of the European Union and forwarded to the European Parliament.

X

NON-PROVIDED FOR. However, the possibility offered by this directive provision (of having up to two more years, if necessary, to take account of difficulties in meeting the working time provisions with respect to their responsibilities for the organisation and delivery of health services and medical care), does not necessarily have to be used.

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Member States may have an additional period of up to one year, if necessary, to take account of special difficulties in meeting the responsibilities referred to in the third subparagraph. They shall follow the procedure set out in that subparagraph.

X

NON-PROVIDED FOR. However, the possibility offered by this directive provision (of having an additional period of up to one year, if necessary, to take account of special difficulties in meeting the responsibilities referred to in the previous provision), does not necessarily have to be used.


Member States shall ensure that in no case will the number of weekly working hours exceed an average of 58 during the first three years of the transitional period, an average of 56 for the following two years and an average of 52 for any remaining period.

X

NON-PROVIDED FOR. However, this obligation should only be complied with if it was legally foreseen the derogation from the application of the article concerning the maximum weekly working time in the case of doctors in training.

101 17 Derogations and exceptions - Derogations 5(6)(a)

The employer shall consult the representatives of the employees in good time with a view to reaching an agreement, wherever possible, on the arrangements applying to the transitional period. Within the limits set out in the fifth subparagraph, such an agreement may cover the average number of weekly hours of work during the transitional period;

X


102 17 Derogations and exceptions - Derogations 5(6)(b)

The employer shall consult the representatives of the employees in good time with a view to reaching an agreement, wherever possible, on the arrangements applying to the transitional period. Within the limits set out in the fifth subparagraph, such an agreement may cover the measures to be adopted to reduce weekly working hours to an average of 48 by the end of the transitional period.

X



With respect to Article 16(b) [the definition of the reference period for the Maximum weekly working time, not exceeding four months] derogations referred to in the first subparagraph shall be permitted provided that the reference period does not exceed 12 months, during the first part of the transitional period specified in the fifth subparagraph, and six months thereafter.

X

NON-PROVIDED FOR. However, the possibility offered by this directive provision - for derogation from the application of the article concerning the definition of the reference period for the maximum weekly working time of doctors in training not exceeding four months (allowing it to be up to 12 months, during the first part of the transitional period; and up to 6 months, thereafter) -, does not necessarily have to be used.

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104 18Derogations and

exceptions - Derogations by collective agreements

(1)


1.9. 2

The scope of collective contracts,

agreements

" A collective agreement shall be concluded at enterprises, institutions, organizations (hereinafter - enterprises), irrespective of their forms of ownership and management, that use hired labour and are legal entities. A collective agreement may be concluded at structural divisions of an enterprise within the competence of these divisions. The agreement shall be concluded at the national, sectoral, territorial levels on the bilateral or tripartite basis: at the national level - the general agreement; at the sectoral level - sectoral (intersectoral) agreements; at the territorial level - territorial agreements."

X YES

NON-PROVIDED FOR. The national provision misses the point, being focused on the conditions to establish a collective agreement. The directive provision, on the other hand, is focused on foreseeing that the directive provisions regarding daily rest, breaks, weekly rest period, length of night work and reference periods may be derogated by means of collective agreements or agreements concluded between the two sides of industry at national or regional level or, in conformity with the rules laid down by them, by means of collective agreements or agreements concluded between the two sides of industry at a lower level. However, this possibility for derogation of such directive provisions, does not necessarily have to be used.



(1)


1.9. 7The content of the collective

agreementpart one

The collective agreement shall establish mutual obligations of parties regarding regulation of production, labour, socio-economic relations, in particular:

X YES

NON-PROVIDED FOR. The national provision misses the point, being focused on the content of a collective agreement. The directive provision, on the other hand, is focused on foreseeing that the directive provisions regarding daily rest, breaks, weekly rest period, length of night work and reference periods may be derogated by means of collective agreements or agreements concluded between the two sides of industry at national or regional level or, in conformity with the rules laid down by them, by means of collective agreements or agreements concluded between the two sides of industry at a lower level. However, this possibility for derogation of such directive provisions, does not necessarily have to be used.



(1)


1.9. 8The content

of the agreements

part one The agreement at the national level shall regulate the key principles and norms of implementation of the socio-economic policy and labour relations

X YES

NON-PROVIDED FOR. The national provision misses the point, being focused on the content of the agreements at the national level. The directive provision, in turn, is only focused on providing that the directive provisions concerning daily rest, breaks, weekly rest period, length of night work and reference periods may be derogated by means of collective agreements or agreements concluded between the two sides of industry at national or regional level or, in conformity with the rules laid down by them, by means of collective agreements or agreements concluded between the two sides of industry at a lower level. However, this possibility for derogation of such directive provisions, does not necessarily have to be used.

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(2)

Member States in which there is no statutory system ensuring the conclusion of collective agreements or agreements concluded between the two sides of industry at national or regional level, on the matters covered by this Directive, or those Member States in which there is a specific legislative framework for this purpose and within the limits thereof, may, in accordance with national legislation and/or practice, allow derogations from Articles 3, 4, 5, 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] and 16 [Reference periods] by way of collective agreements or agreements concluded between the two sides of industry at the appropriate collective level.

1.9. the preamble of the Law

This Law determines the legal framework for development, conclusion, and implementation of collective contracts and agreements with the aim of facilitating regulation of labour relations and socio-economic interests of workers and employers.

X YES

NON-PROVIDED FOR. The national provision indicated (which, moreover, is not a legal norm, but only a part of its preamble text), misses the point, being only focused on explaining that the law to which refers to determines the legal framework for development, conclusion, and implementation of collective contracts and agreements. Conversely, the directive provision provides that the directive provisions concerning daily rest, breaks, weekly rest period, length of night work and reference periods may be derogated by way of collective agreements or agreements concluded between the two sides of industry at the appropriate collective level (where there is no statutory system ensuring the conclusion of collective agreements or agreements concluded between the two sides of industry at national or regional level, on the matters covered by this Directive, or where there is a specific legislative framework for this purpose and within the limits thereof). However, this possibility for derogation of such directive provisions, does not necessarily have to be used.



(3)

"The derogations provided for in the first and second subparagraphs shall be allowed on condition that equivalent compensating rest periods are granted to the workers concerned or, in exceptional cases where it is not possible for objective reasons to grant such periods, the workers concerned are afforded appropriate protection. "

1.9. 7 part one

" The collective agreement shall establish mutual obligations of parties regarding regulation of production, labour, socio-economic relations, in particular: changes in organization of production and labour; ensuring productive employment; rationing and remuneration of wages, establishment of the form, system, wages, and other types of labour payments (additional payments, surpluses, bonuses, etc.); establishment of guarantees, compensations, privileges; participation of the labour collective in formation, distribution, and use of profits of the enterprise (if stipulated in the statute); the working schedule, duration of the working period and of rest; labour conditions and labour protection; provision of housing, domestic, cultural, medical services, organization of health improvement and rest of workers; safeguards for activities of trade unions or other representative organizations of employees; terms of regulation of wage funds and establishment of inter-qualification (inter-agency) ratios in wages; ensuring equal rights and opportunities for women and men; prohibition of discrimination."

X YES

NON-PROVIDED FOR. The national provision misses the point. This directive provision only states that the possibilities for derogation of this directive provisions concerning daily rest, breaks, weekly rest period, length of night work and reference periods, offered by the two previous directive provisions, are only allowed if equivalent compensating rest periods are granted to the workers concerned or, in exceptional cases where it is not possible for objective reasons to grant such periods, the workers concerned are afforded appropriate protection. The transposition of this directive provision makes sense only if the directive provisions concerning daily rest, breaks, weekly rest period, length of night work and reference periods were derogated by a collective agreement.



(4)(a)

Member States may lay down rules for the application of this Article by the two sides of industry; and

X YES

NON-PROVIDED FOR. This directive provision provides for the possibility of establishing rules for the application of this derogations (from the application of this directive provisions concerning daily rest, breaks, weekly rest period, length of night work and reference periods) by the two sides of industry. However, this possibility does not necessarily have to be used.



(4)(b)

Member States may lay down rules for the extension of the provisions of collective agreements or agreements concluded in conformity with this Article to other workers in accordance with national legislation and/or practice

1.9. 9

The effect of a collective

contract, agreement

part one

Provisions of the collective agreement shall apply to all employees of an enterprise, regardless of whether they are members of the trade union, and shall be mandatory both for the employer and for employees of the enterprise. Provisions of the general, sectoral (inter-sectoral), territorial agreements shall apply directly and be binding on all entities within the scope of activities of the parties that have signed the agreement.


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111 19



(1)

The option to derogate from Article 16(b) [referred to the definition of the reference period for the Maximum weekly working time, not exceeding four months], provided for in Article 17(3) and in Article 18, may not result in the establishment of a reference period exceeding six months.

Х

NON-PROVIDED FOR. This directive provision, which stipulates that the reference period mentioned in article 16(b) cannot exceed 6 months, only needs to be provided for in the case that it was provided for in national provisions the derogation from the maximum weekly working time not exceeding 4 months foreseen in articles 17(3) and 18 of this directive.

112 19



(2)

However, Member States shall have the option, subject to compliance with the general principles relating to the protection of the safety and health of workers, of allowing, for objective or technical reasons or reasons concerning the organisation of work, collective agreements or agreements concluded between the two sides of industry to set reference periods in no event exceeding 12 months.

Х

NON-PROVIDED FOR. This directive provision, stipulates that the reference period for the Maximum weekly working time not exceeding four months (foreseen in article 16(b)) can be set in a period not exceeding 12 months (subject to compliance with the general principles relating to the protection of the safety and health of workers, of allowing, for objective or technical reasons or reasons concerning the organisation of work, collective agreements or agreements concluded between the two sides of industry). However, this possibility does not necessarily have to be used.

113 20



1(1)

Articles 3, 4, 5 and 8 [Daily rest; Breaks; Weekly rest period; and Length of night work] shall not apply to mobile workers.

4.2. 4.1.

" If the rotation method of work organization applies, summary accounting of working time per month, quarter, or another longer period is established, as a rule, but no more than a year. The accounting period covers all working hours, the travel time from the place of business or from the meeting place to the workplace and back, and the rest time for this calendar period. Moreover, the duration of the working time for the accounting period shall not exceed the standard number of working hours established by law. Enterprises shall maintain special accounting of working time and rest time per each employee monthly and in the way of accrual - for the entire accounting period. "

X YES X

NON-PROVIDED FOR. The directive provision only stipulates that the directive provisions regarding daily rest, breaks, weekly rest period and length of night work do not apply to mobile workers, whereas the national provision describes the application of the rotation method of work organization, which does not necessarily applies to mobile workers (see the definition on article 2(7))

114 20



1(1)


4.2. 4.2.

" Working hours and rest periods within the accounting period shall be regulated by the rotation working schedule, which shall be approved by the administration of the enterprise in agreement with the relevant trade union committee, as a rule, for the period of one year, and communicated to employees no later than one month before its introduction into operation. The schedules shall also provide for the days required to deliver workers to the rotation and back. Travel days to get to the workplace and back shall not be included into normal working hours and can occur on the days of inter-rotation rest. Duration of daily work (shift) shall not exceed 12 hours. "

X X YES X X

NON-PROVIDED FOR AND CONTRADICTORY: The directive provision only stipulates that the directive provisions regarding daily rest, breaks, weekly rest period and length of night work do not apply to mobile workers, whereas the national provision is focused on regulating working hours and rest periods on the rotation method of work organization [which does not necessarily applies to mobile workers, whose definition is foreseen in article 2(7)]. Moreover, this national provision foresees that the duration of daily work (shift) of workers with a rotation method of work organizations "shall not exceed 12 hours". As such, this national provision appears to be contradictory with article 6, on maximum weekly working time, which derogation is only allowed for doctors in training [cf. article 17(5)] and workers on board seagoing fishing vessels [cf. article 21(1)], unless it is ensured that in the remaining days of the week the workers work a number of hours which allows them not to exceed 48 hours on a 7 days week (or an average of 48 hours in the reference period) or if it was used the possibility of derogation/exception from article 6, foreseen in articles 17, 21 or 22.

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115 20



1(1)


4.2. 4.3.

" The duration of the daily (inter-shift) rest of employees, including lunch breaks, can be reduced to 12 hours. In this case, the hours of daily (inter-shift) rest not used, as well as the days of weekly rest, shall be summarized and provided in the form of additional days off from work (inter-rotational rest days) during the accounting period. The number of days of weekly rest in the current month must at least amount to the number of full weeks in this month. Weekly rest days can fall on any day of the week. For employees dismissed before the end of the accounting period, the date of dismissal, with their consent, may be indicated taking into account the respective days of inter-rotational rest. "

X YES X

NON-PROVIDED FOR. The directive provision only stipulates that the directive provisions regarding daily rest, breaks, weekly rest period and length of night work do not apply to mobile workers, whereas the national provision describes the process for calculation the rest days on the rotation method of work organization, which does not necessarily applies to mobile workers (see the definition on article 2(7))

116 20



1(2)

Member States shall, however, take the necessary measures to ensure that such mobile workers are entitled to adequate rest, except in the circumstances laid down in Article 17(3)(f) [unusual and unforeseeable circumstances, beyond the employers' control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care] and (g) [in cases of accident or imminent risk of accident].

1.2. 62 Restriction of overtime work

" Overtime work shall generally not be allowed. Overtime work shall be defined as work beyond the fixed working day (Articles 52, 53, and 61). The owner or a body authorized by the owner may apply overtime work only in exceptional cases, determined by the legislation and in part three of this article. The owner or a body authorized by the owner may use overtime work only in the following exceptional cases: 1) during work necessary for the state's defence, as well as for prevention of civil or natural disasters, industrial accidents, and for rapid elimination of their consequences;2) when performing public work necessary for water supply, gas supply, heating, lighting, sewage, transport, communications - to eliminate accidental or unexpected circumstances undermining their proper functioning;3) to complete, if necessary, the initiated work that, due to unforeseen circumstances or an occasional delay for technical conditions of production, could not be completed during normal working hours, when its termination could lead to damage or destruction of public or civil property, as well as in the case of need for urgent repair of machinery, machine tools, or other equipment, when their malfunction causes stoppage of work for a significant number of workers;4) if it is necessary to perform loading and unloading operations in order to prevent or eliminate idle periods of rolling stock or accumulation of stocks at departure and destination points;5) for continuation of work in the absence of the employee to start his/her shift, where the work does not allow for a break; in these cases, the owner or the body authorized by the owner shall be obliged to immediately take measures to replace the substituting worker with another employee."

X YES X

CONTRADICTORY: The only exceptions foreseen in the directive provision that can prevent mobile workers from their right to adequate rest are the ones provided for in Article 17(3)(f) [unusual and unforeseeable circumstances, beyond the employers' control, or to exceptional events, the consequences of which could not have been avoided despite the exercise of all due care] and (g) [in cases of accident or imminent risk of accident], whereas the national provision foresees the possibility for them being prevented from adequate rest in a much wider set of situations.

117 20



2

Subject to compliance with the general principles relating to the protection of the safety and health of workers, and provided that there is consultation of representatives of the employer and employees concerned and efforts to encourage all relevant forms of social dialogue, including negotiation if the parties so wish, Member States may, for objective or technical reasons or reasons concerning the organization of work, extend the reference period referred to in Article 16(b) [referred to the definition of the reference period for the Maximum weekly working time, not exceeding four months] to 12 months in respect of workers who mainly perform offshore work.

ХNON-PROVIDED FOR. However, this possibility does not necessarily have to be used.

118 21


vessels

1(1)

Articles 3 to 6 [Daily rest; Breaks; Weekly rest period; and Maximum weekly working time] and 8 [Length of night work] shall not apply to any worker on board a seagoing fishing vessel flying the flag of a Member State.


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vessels

1(2)

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.


120 21


vessels

2(1)(a)

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, the working hours are limited to a maximum number of hours which shall not be exceeded in a given period of time; or


121 21


vessels

2(1)(b)

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 minimum number of hours of rest are provided within a given period of time.


122 21


vessels

2(2)

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.


123 21


vessels

3 The limits on hours of work or rest shall be either:

124 21


vessels

3(a)(i)

A maximum hours of work which shall not exceed 14 hours in any 24-hour period; and


125 21


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3(a)(ii)

A maximum hours of work which shall not exceed 72 hours in any seven-day period;


126 21


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3(b)(i)

A minimum hours of rest which shall not be less than 10 hours in any 24-hour period; and


127 21


vessels

3(b)(ii)

A minimum hours of rest which shall not be less than 77 hours in any seven-day period.


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128 21


vessels

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.

ХNON-PROVIDED FOR. However, the possibility does not necessarily have to be used.

129 21


vessels

5(a)

"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 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 "

ХNON-PROVIDED FOR. However, the possibility of such exception does not necessarily have to be used.

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130 21


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5(b)


1.2. 9-1.

Additional labour and

social benefits as compared

with the legislation

part one Enterprises, institutions, organizations within their powers and at their own expense may establish additional labour and social benefits for employees as compared with the legislation.

Х

NON-PROVIDED FOR. The national provision indicated misses the point. However, the possibility of such exception does not necessarily have to be used.

131 21


vessels

5(b)


1.9. 7The content of the collective

agreementpart three

A collective agreement may provide for additional, in comparison with the current legislation and agreements, guarantees, social and household benefits, in particular, for children's health improvement and procurement of New Year presents for workers' children, etc.

Х

NON-PROVIDED FOR. The national provision indicated misses the point. However, the possibility of such exception does not necessarily have to be used.

132 21


vessels

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.


133 21


vessels

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.

Х NON-PROVIDED FOR. However, this possibility may not be provided for.

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134 22Derogations

and exceptions - Miscellaneous provisions

1(a)

A Member State shall have the option not to apply Article 6 [maximum weekly working time], while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that no employer requires a worker to work more than 48 hours over a seven-day period, calculated as an average for the reference period referred to in Article 16(b), unless he has first obtained the worker's agreement to perform such work;

1.2. 61Summary



Х YES Х FULLY PROVIDED FOR

135 22Derogations


1(b)


1.1. 9

Invalidity of terms of labour contracts that

worsen the employees' conditions

The terms of employment contracts that worsen the situation of employees vs the labour legislation of Ukraine shall be deemed invalid. X YES

NON-PROVIDED FOR. The national provision indicated misses the point. The directive provision wants to ensure that the workers that do not give their agreement for working more hours than the maximum weekly working time will not be subjected to any detriment by their employers. However, the possibility of such exception does not necessarily have to be used.

136 22Derogations


1(b)


1.1. 153

Creating safe and harmless

working conditions

part five

The owner or the body authorized by the owner shall have no right to request from an employee performance of work associated with an obvious risk to life, as well as that in conditions that do not comply with the labour protection legislation. An employee shall have the right to reject work assigned to him/her if the production situation is formed that is dangerous for his/her life or health, or for those of people around and the environment.

X YES

NON-PROVIDED FOR. The national provision indicated misses the point. The directive provision wants to ensure that the workers who do not give their agreement for working more hours than the maximum weekly working time will not be subjected to any detriment by their employers. However, the possibility of such exception does not necessarily have to be used.

137 22Derogations


1(b)


1.3. 6

Worker's rights to labour

protection at workplace

parts two, three

" An employee shall have the right to reject work assigned to him/her if the production situation is formed that is dangerous for his/her life or health, or for those of people around and the production and natural environment. For the downtime period due to the reasons stipulated in part two of this Article, which did not arise by the fault of the employee, he/she shall retain his/her average earnings."

X YES

NON-PROVIDED FOR. The national provision indicated misses the point. The directive provision wants to ensure that the workers that do not give their agreement for working more hours than the maximum weekly working time will not be subjected to any detriment by their employers. However, the possibility of such exception does not necessarily have to be used.

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138 22Derogations


1(c)

A Member State shall have the option not to apply Article 6 [maximum weekly working time], while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that the employer keeps up-to-date records of all workers who carry out such work;

1.1. 65 The limits of overtime work part two The owner or the body authorized by the owner shall keep records of

overtime work for every employee. Х YES Х FULLY PROVIDED FOR

139 22Derogations


1(d)

A Member State shall have the option not to apply Article 6 [maximum weekly working time], while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that the records are placed at the disposal of the competent authorities, which may, for reasons connected with the safety and/or health of workers, prohibit or restrict the possibility of exceeding the maximum weekly working hours;

Х

NON-PROVIDED FOR. However, the exercise of this option for derogation or exception from the article 6 is not mandatory.

140 22Derogations


1(e)

A Member State shall have the option not to apply Article 6 [maximum weekly working time], while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that the employer provides the competent authorities at their request with information on cases in which agreement has been given by workers to perform work exceeding 48 hours over a period of seven days, calculated as an average for the reference period referred to in Article 16(b).

Х

NON-PROVIDED FOR. However, the exercise of this option for derogation or exception from the article 6 is not mandatory.

141 22Derogations


2(a)


1.4. 6

The basic annual

leave and its duration


X YES

NON-PROVIDED FOR. The national provision indicated do not provide for the directive provision and misses the point. The national provision just specifies that the period of paid annual leave is 24 calendar day (which, as already noted, is contradictory to the article 7), whereas the directive provision concerns the possibility given to the Member States of having a transitional period of up to 3 years in order to comply with article 7 (during which the paid annual leave has to be of at least 3 weeks). However, the possibility of such derogation does not necessarily have to be used.

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142 22Derogations


2(a)


1.4. 10The procedures for provision of annual leaves

parts four, ten

The annual basic and supplementary leaves shall be granted to the employee in such a way that they are used, as a rule, before the end of the working year. The procedures for granting leaves shall be determined in schedules to be approved by the owner or the body authorized by the owner, in agreement with the elective body of the primary trade union organization (trade union representative) or another representative body authorized by the labour collective, and shall be brought to attention of all employees. When drawing up the schedules, account shall be taken of production interests, personal interests of workers, and the opportunities for them to rest.

X YES

NON-PROVIDED FOR. The national provision indicated do not provide for the directive provision and misses the point. The national provision is only concerned with the period when the annual leave should be enjoyed and how it should be scheduled, whereas the directive provision concerns the possibility given to the Member States of having a transitional period of up to 3 years in order to comply with article 7 (during which the paid annual leave has to be of at least 3 weeks). However, the possibility of such derogation does not necessarily have to be used.

143 22Derogations


2(a)


1.4. 11 Transfer of the annual leave part five

It shall be prohibited not to provide full-time annual leaves for two consecutive years, or not to provide them during the working year to persons under the age of eighteen and to employees entitled to annual additional leaves for working in harmful or hard conditions or performing work of a specific nature.

X YES

NON-PROVIDED FOR. The national provision indicated do not provide for the directive provision and misses the point The national provision is aimed at avoiding that employers prevent their workers from enjoying their annual leaves, whereas the directive provision concerns the possibility given to the Member States of having a transitional period of up to 3 years in order to comply with article 7 (during which the paid annual leave has to be of at least 3 weeks). However, the possibility of such derogation does not necessarily have to be used.

144 22Derogations


2(b)


1.4. 24



part one If a worker is dismissed, a monetary compensation for all unused days of his/her annual leave shall be paid to him/her X YES

NON-PROVIDED FOR. The national provision indicated do not provide for the directive provision and misses the point. The national provision grants workers the possibility of replacing their annual leave period by a monetary compensations, whereas the directive provision is focused on granting the possibility to the Member States of having a transitional period of up to 3 years in order to comply with article 7 (during which the 3 week paid annual leave cannot be replaced by any allowance). However, the possibility of such derogation od article 7 does not necessarily have to be used.

145 22Derogations


2(b)


1.4. 24




X YES

NON-PROVIDED FOR. The national provision indicated do not provide for the directive provision and misses the point. The national provision grants workers the possibility of replacing their annual leave period by a monetary compensations, whereas the directive provision is focused on granting the possibility to the Member States of having a transitional period of up to 3 years in order to comply with article 7 (during which the 3 week paid annual leave cannot be replaced by any allowance). However, the possibility of such derogation od article 7 does not necessarily have to be used.

146 22Derogations


3

If Member States avail themselves of the options provided for in this Article, they shall forthwith inform the Commission thereof.

X YES

NON-PROVIDED FOR. However, the Member States only have to inform the commission if they exercise their option for the derogation from the application of articles 6 and 7, as foreseen in this article.

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147 23 Final provisions - Level of Protection (1)

Without prejudice to the right of Member States to develop, in the light of changing circumstances, different legislative, regulatory or contractual provisions in the field of working time, as long as the minimum requirements provided for in this Directive are complied with, implementation of this Directive shall not constitute valid grounds for reducing the general level of protection afforded to workers.

1.1. 22

The rights and freedoms of

the individual and citizen enshrined

in this Constitution

are not exhaustive.

part two When adopting new laws or introducing amendments to existing laws, it shall not be allowed to narrow the content or scope of existing rights and freedoms.

X YES X

NON-PROVIDED FOR. The directive provision only states that, as long as the minimum requirements that it provides for are complied with, the transposition of this directive provisions should not give an excuse to reduce the general level of protection granted to workers.

LIST OF REVISED LEGISLATIONDirective No. 2003/88/EC of the European Parliament and of the Council, of 4 November 2003, concerning certain aspects of the organization of working time

CODE (NUMBER

OF THE LEGISLATIVE

ACT)

LEGISLATIVE DOCUMENT LAST AMENDEMENTS INTRODUCED

ISSUER LEGISLATIVE DOCUMENT NUMBER DATE OF ADDOPTION NAME/SUBJECT OF THE LEGAL ACT DATE OF ENTRY INTO

FORCEDATE OF LAST

AMENDEMENT LEGAL ACT

1. Ukrainian Parliament (Verkhovna Rada)

1.1 Parliament Law 6/28/1996 Constitution 6/28/1996 6/2/2016 Law of Ukraine of 02.06.2016 No. 1401-VIII on Amendments to the Constitution of the Ukraine (regarding justice)

1.2 Parliament Law 322-VIII 12/10/1971 Labour Code of Ukraine 12/10/1971 11/16/2017 Law of Ukraine of 16.11.2017 No. 2211-VIII On Amendments to Article 73 of the Labour Code of Ukraine on Public Holidays and Days Off

1.3 Parliament Law 2694-XII 10/14/1992 On Labour Protection 11/24/1992 2/12/2015 Law of Ukraine of 12.02.2015 No. 191-VIII On Amendments to Certain Legislative Acts of Ukraine on Facilitation of Doing Business (de-regulation)

1.4 Parliament Law 1533 3/2/2000 On Compulsory State Social Insurance 7/5/2012 Law of Ukraine No. 5067-VI of 05.07.2012 On Employment of Population

1.5 Parliament Law 504/96 11/15/1996 On Leaves 1/1/1997 5/17/2016 Law of Ukraine of 17.05.2016 No. 1366-VІІІ On Amendments to Certain Legislative Acts of Ukraine on Providing Educator Parents with Additional Social Guarantees

1.6 Parliament Law 5076-VI 7/5/2012 On the Bar Association and Advocacy Activity 8/15/2012 12/21/2016 Law of Ukraine of December 21, 2016 No. 1798-VIII On the High Council of Justice

1.6 Parliament Law 108/95 3/24/1995 On Labor Remuneration 5/1/1995 12/6/2016 Law of Ukraine of 06.12.2016 No. 1774-VIII On Amendments to Certain Legislative Acts of Ukraine

1.7 Parliament Law 794-VII 2/27/2014 On the Cabinet of Ministers of Ukraine 3/2/2014 11/9/2017 Law of Ukraine of 09.11.2017 No. 2190-VIII On Amendments to Certain Laws of

Ukraine Regarding Certain Aspects of Civil Service

1.8 Parliament Law 973-IV 19.06.2003 On Farm Enterprise 7/29/2003 01.03 2016 Law of Ukraine of 01.03.2016 No. 1067-VIII On Amending the Law of Ukraine On Farmer Enterprises to Stimulate Establishment and Operation of Family Farms

1.9 Parliament Law 3356-XII 7/1/1993 On Collective Agreements 8/8/1993 12/28/2014Law of Ukraine of 28.12. 2014 No. 77-VIII On Amendments to Certain Legislative Acts of Ukraine Regarding the Reform of Mandatory State Social Insurance and Legalization of the Labor Remuneration Fund

2. President of Ukraine

2.1 President Decree/Order

…………… …………… …………… …………… …………… …………… …………… ……………

3. Cabinet of Ministers of Ukraine

3.1 Cabinet of MinistersLaw/Regulatory Decree/Decree-Law/Resolution/Order

4. Ministries and other state authorities

4.1. Ministry of Health Order 246 5/21/2007On approval of the procedure for medical examination of certain categories of workers

8/3/2007 2/14/2012 Order No. 107 of 14.02.2012 On Amendments to the Order of the Ministry of Health of Ukraine of 21.05.2007 No. 246

4.2.

State Committee of Labor and Social Issues of the USSR and the Ministry of Health of the USSR

Decree 794/33-82 31.12.1987 On Approval of the Main Provisions Regarding Rotation Based Works 12/31/1987 17.01.1990 Decree on Amendments to the Main Provisions Regarding Rotation Based Works of

17.01.1990

Documents

Analysis of the degree of concordance between the national ... fileAnalysis of the degree of concordance between the national