Commission consults on review of working time Directive

In January 2004, the European Commission issued a Communication on the re-examination of the 1993 EU working time Directive in which it invites comments from interested parties on the Directive’s reference periods for calculating average working time, the possibility of allowing individuals to opt out from the maximum 48-hour week, recent ECJ case law regarding on-call working, and measures to improve work-life balance. The European Parliament gave its response in February 2004, stating that the opt-out should be phased out.

The 1993 EU Directive (93/104/EC) on certain aspects of the organisation of working time aims to ensure a better level of safety and health protection for workers by limiting excessive working hours, providing for sufficient rest breaks and regular organisation of work. Its main provisions include:

• a minimum rest period of 11 consecutive hours for each 24-hour period;

• a rest break where the working day is longer than six hours;

• a minimum rest period of one day per week;

• maximum weekly working hours of 48 hours on average, including overtime, over a reference period not exceeding four months;

• four weeks of paid annual leave; and

• an average of no more then eight hours of work at night in any 24-hour period.

All Member States were obliged to transpose the provisions of this Directive into national legislation by 23 November 1996.

The review

The text of the Directive states that two of its provisions are to be reviewed before 23 November 2003. These are:

• derogations from the four-month reference period for the application of Article 6 of the Directive (the maximum 48-hour working week), whereby Member States may allow the reference period to be extended to six months or, by collective agreement, to 12 months; and

• an option for Member States of not applying Article 6 if the individual worker consents to this (ie the 'opt-out' from the 48-hour maximum working week).

There have also been important recent European Court of Justice (ECJ) rulings regarding the definition of working time with regard to on-call working, notably the judgments in the Simap case on 3 October 2000 and the Jaeger case on 9 October 2003 (EU0310202N). These rulings essentially stated that on-call working should be considered to be working time, even where the employee is provided with a bed to sleep in on the employer’s premises during periods of non-working. The European Commission therefore believes that it is timely to look at the Directive in the light of these cases.

The Commission thus issued on 5 January 2004 a Communication on the reexamination of the Directive. It states that this review has three aims:

• to evaluate the application of the two abovementioned provisions for which review is provided in the text of the Directive - on derogations from the reference periods for calculating average weekly working time and the opt-out from the 48-hour maximum week;

• to analyse the impact of the recent ECJ judgments in the area of the definition of working time and the status of on-call working, in addition to new developments aimed at improving work-life balance; and

• to consult the European Parliament, the Council of Ministers, the European Economic and Social Committee, the Committee of the Regions and the EU social partners on a possible revision of the text.

Implementation of the reference periods

The Commission notes that only four Member States (Greece, Ireland, Portugal and the UK) faithfully reproduce the provisions of the Directive in relation to reference periods.

In Denmark, no reference periods are set out by law - collective agreements provide for reference periods of between four and 12 months. In Finland, the four-month reference period is applied only to the maximum amount of overtime - collective agreements may set out a 12-month reference period for ordinary working time and for limiting overtime. In France, the 48-hour limit is absolute and not an average to be calculated over a reference period. Other Member States have different reference periods - often of one year - for the calculation of ordinary working time, which is less than the 48-hour maximum set out in the Directive.

With regard to extending the reference period to up to 12 months by collective agreement, the Commission notes that Member States are not all in the same position, due to the fact that coverage by collective bargaining varies widely, from 36% in the UK (22% when the private sector only is taken into consideration), to almost 100% in some Member States.

Use of the opt-out

Article 18(1)(b)(i) of the working time Directive allows Member States to make provision for a worker to work longer than 48 hours a week under the following conditions:

• the employer must gain the prior consent of the worker to do this;

• no worker should be subjected to any detriment by their employer because they are not willing to give their consent to do this;

• the employer must keep up-to-date records of all workers working longer than 48 hours a week;

• the records must be placed at the disposal of the competent authorities, which may, for health and safety reasons, prohibit or restrict the possibility of exceeding the 48-hour limit; and

• the employer must provide the competent authorities at their request with information on cases in which agreement has been given by workers to exceed the 48-hour week over a period of seven days, calculated as an average over a reference period of four months.

A key feature of the worker’s consent, states the Commission, is that it must be free and informed.

Implementation in the UK

The UK is the only country which has made general use of this possibility of allowing workers to opt out of the 48-hour weekly maximum. However, although the UK’s implementing legislation, as revised in 1999 (UK9907117N), makes reference to employer record-keeping, it does not, in the Commission’s opinion, fully comply with the Directive’s requirements in the area of record-keeping concerning workers working above 48 hours a week. The Communication also states that if there is no record of time actually worked by these workers, it is difficult to ensure that there is compliance relating to other areas of the Directive, such as daily rest periods, breaks and weekly rest periods.

Implementation in other Member States

The Commission believes that the ECJ’s ruling in the Simap case has had a significant impact on other Member States’ decisions on whether to apply the opt-out. Essentially, they saw this as 'a way of alleviating some of the problems created by this case law, allowing doctors to continue to work for more than 48 hours per week (including on-call time) if they wished'.

All Member States incorporating this clause into their legislation, with the exception of Luxembourg, did so for the health sector alone. Luxembourg has introduced the opt-out for the hotels and catering sector by means of legislation dated 20 December 2002 (LU0301107F).

Impact of ECJ case law

The Commission notes that, prior to the Simap ruling, the general interpretation was that periods of inactivity during time spent on call should not be defined as working time. In most Member States therefore, periods spent not working during on-call duty were excluded from working time. Consequently, the Simap ruling has had a major impact, particularly in the health sector, as on-call working is most widespread among doctors. This will be even greater when Directive 2000/34/EC extending the 1993 working time Directive to previously excluded sectors and activities (EU0005249F) is applied with respect to trainee doctors on 1 August 2004, implementing the 48-hour week in stages (although there is a transition period of four years that can be extended to eight years). Most on-call working requiring a physical presence at work is performed by trainee doctors.

To comply with the maximum working week of 48 hours, including all time spent on call, most Member States will need to recruit large numbers of additional doctors to ensure the same level of care. However, all Member States agree that even if it were possible to pay for these extra staff, it would be impossible in practice due to the lack of candidates with the necessary training to take on these jobs. The Commission therefore fears that some Member States will use the derogations or exceptions on offer in the Directive, primarily the opt-out.

Improving the compatibility of work and family life

The Commission states its belief that the revision of the Directive could be used to encourage Member States to take steps to improve the compatibility of work and family life. Greater flexibility in the organisation of working time would, it argues, meet the growing needs of workers, particularly those with dependants, as well as the interests of companies, which need to be able to respond to user and customer demands for extended operating hours to adapt rapidly to fluctuations in demand.

The way forward

The Commission believes there are several ways forward, but lists what it feels are the criteria that must be met by the solution chosen:

• workers should be given a high level of health and safety protection in respect of working time;

• firms and Member States should have more flexibility in the way they manage working time;

• it should be made easier to reconcile work and family life; and

• no unreasonable constraints should be imposed on firms, particularly small and medium-sized businesses.

The Commission highlights the following five areas that it would like those responding to this Communication to address:

• the reference periods contained in the Directive;

• the ECJ’s interpretation of the concept of working time in the Simap and Jaeger cases;

• the conditions of application of the Directive’s opt-out from the 48-hour maximum week;

• measures aimed at improving reconciliation between work and family life; and

• whether an interrelated approach to these issues would allow for a balanced solution capable of meeting the four criteria set out above.

All comments should be sent to the Commission by 31 March 2004.

This process constitutes the first phase of the European social partner consultation process, provided for by Article 138(2) of the Treaty. A second consultation phase, on the content of any proposal envisaged, will follow once the Commission has digested all the replies.

European Parliament’s position

On 11 February 2004, the European Parliament (EP) adopted a resolution calling on the Commission to advance the formal process of social partner discussion on review of the working time Directive and urging it to revise it 'with a view to the phasing out', as soon as possible, of the opt-out. It also states that the Commission has adopted a 'reluctant attitude' following the Simap ruling, which has led to 'a lack of clarity' in some Member States.

Commentary

Debate on this issue is likely to be lively over the coming months. The European Trade Union Confederation (ETUC) swiftly issued an initial response, expressing its concern that the Commission has not issued any concrete proposals for overhauling the Directive at this stage, despite the fact that Commission research has found that the implementation of the Directive has not been satisfactory. John Monks, the ETUC general secretary, issued the following statement: 'With Commissioner Diamantopoulou having accepted that the implementation of the working time Directive has been unsatisfactory, particularly though not exclusively in the United Kingdom, and that as a result the health and safety of European workers is being compromised, I am very disappointed that the Commission has not felt able to come forward now with concrete proposals for remedying the situation.'

The Union of Industrial and Employers Confederations of Europe (UNICE) is in the process of formulating a position paper on this issue. For the views of the main UK employers’ organisation, the Confederation of British Industry (the UK will be the most affected country if the Commission decides to modify or abolish the opt-out), see UK0401104F.

While it is not possible to anticipate what the Commission will do, it is clear that much emphasis will be placed on the opt-out provided for by the Directive. It was acknowledged at the time that the Directive was formulated that this clause could put at risk the Directive’s aim of protecting workers’ safety and health, which is why there is provision for its review after a period of seven years. The Commission clearly believes that the opt-out is problematic: pointing to the experience of the UK, it says there are: 'existing difficulties in ensuring that the spirit and terms of the Directive are respected and that real guarantees are provided for workers. It also brings out an unexpected effect in that it is difficult to ensure (or at least check) that the other provisions in the Directive have been complied with, concerning whether workers have signed the opt-out agreement.' These doubts about the opt-out have been reinforced by the EP’s recent resolution. However, employer representatives are likely to campaign strongly against phasing out the opt-out. (Andrea Broughton, IRS)