Commission launches second consultation on working time Directive

In May 2004, the European Commission issued a second stage of consultation of the EU social partners on the revision of the working time Directive. The consultation document urges the partners to negotiate an agreement on the revision of the Directive and outlines the approach that the Commission will take, in the form of its own legislative proposals, if they do not do this.

On 19 May 2004, the European Commission launched a second phase of consultation of the EU-level social partners on the revision of the 1993 working time Directive (93/104/EC). This second consultation, in accordance with Article 138 of the Treaty establishing the European Community (TEC), follows a first consultation, issued in early January 2004 (EU0402203F).

Replies to the first consultation

The Commission received replies from a range of social partner organisations following its first consultation. This first consultation focused on two provisions for which a review was built into the 1993 Directive. These are:

• Article 17(4) on 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

• Article 18(1)(b)(i) on the option not to apply the maximum weekly working time of 48 hours if a worker gives their individual agreement to this (known as the 'opt-out').

In addition, the Commission asked the social partners for their views on recent European Court of Justice (ECJ) rulings on the definition of on-call working and for their views on measures to improve compatibility between work and family life.

Social partner replies

After analysing the responses obtained, the Commission states that both employers' organisations and worker representative organisations wish to see the current text of the Directive amended. However, views on the content of any amendments differ.

The European Trade Union Confederation (ETUC) maintains that extending the reference period for calculating weekly working time to 12 months should continue to be possible only through collective bargaining. It believes that the opt-out is in 'flagrant contradiction' to the objectives and provisions of the Directive. In relation to on-call working, it believes that the Commission should provide a 'lasting and long-term response' which is in line with the fundamental principles of the Directive. In relation to provisions to improve flexibility and choice for workers so as to adapting working time to their needs, ETUC calls for a more elaborate framework for discussion of this and believes that the Commission should promote social dialogue as the 'main means of providing lasting and long-term solutions at national, sectoral and cross-industry level' .

The Union of Industrial and Employers’ Confederations of Europe (UNICE) calls for a general reference period of 12 months and the possibility of extending it beyond 12 months by collective agreement. It would like to maintain the opt-out and to amend the Directive to allow it to be agreed collectively. In the area of on-call working, it would like only periods of actual work during time spent on call to qualify as working time. It also states that the reconciliation of work and family would be better met through non-legislative measures and should not be dealt with by this Directive.

The European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP) supports the extension of the reference period to 12 months through legislation, with the possibility of the social partners setting a longer period. In the case of the opt-out, CEEP believes that 'the prevention and abolition of the abuses should take precedence over the deletion of the opt-out clause' . With regard to on-call working, CEEP states that the Commission should introduce measures to amend the Directive in order to include in the definition of working time the concept of an inactive period in place of the current definition of either work or non-work. Finally, it believes that working time flexibility is important when trying to reconcile work and family life, but not related to the review of this Directive.

The Commission also received responses to the consultation from a range of other cross-sectoral bodies and sectoral organisations representing workers and employers.

Replies from institutions

The European Parliament adopted a resolution on the organisation of working time at its Plenary session in February 2004 ( EU0402203F ). In this, it called on the Council of Ministers and the Commission to consider an amended Directive as soon as possible. In particular, it calls for the revision, with a view to it phasing-out as soon as possible, of the individual opt-out. In the meantime, it called on the Commission to identify practical ways of tackling potential or actual abuses of the opt-out, including seeking views on how best to strengthen the voluntary nature of the opt-out.

The Council of Ministers held an informal discussion on the review of the Directive at its social and employment affairs meeting on 4 March 2004 ( EU0403204F ).

The European Economic and Social Committee (EESC) is reported to be due to adopt an opinion on this issue during June 2004.

Commission analysis of responses

The Commission states at the outset that it shares the broad consensus that there is a need to modify the text of the working time Directive. It stresses that any review should promote the fundamental objective of the Directive, which is to protect workers’ health and safety.

Exemptions from the reference period

At present, the Directive provides for a weekly average working time of 48 hours, to be calculated over a period of four months. To enable increased flexibility, derogations from this reference period are permitted - Member States may extend it to six months in some cases and it may be extended to one year by collective agreement or agreement reached by the social partners. The Commission believes that, in order to better reflect the trend present in legislation and agreements at national level, the reference period should be extended.

The opt-out

The Commission notes that the opt-out is accompanied by a series of conditions intended to guarantee freedom of choice for the worker and to ensure the possibility of prohibiting or restricting any exceeding of the maximum weekly working time. These conditions include the requirement to gain the agreement of the individuals concerned and for the employer to keep records of the working time patterns of the individuals concerned.

Overall, the Commission states that it has 'certain reservations' regarding both the national provisions implementing this Article (the UK is the only Member State that has put it into general use - UK0406101N ) and its current use in practice. It therefore states that it considers it necessary to amend the provisions of the Directive in this area so as 'to raise the level of protection for workers compared with the present system, in the light of the experience gained in practice and the criticisms and comments made by interested parties' . The Commission strongly encourages the social partners to engage in negotiations on this issue and says that if they do not do so, it will propose amendments based on one or more of the following approaches:

• tightening the conditions of application of the opt-out in order to strengthen its voluntary nature and raise the level of protection for workers. This could include a separation in time between the individual consent of the worker and the signature of the employment contract, or an obligation to review regularly the individual consent given by the employee, as well as a cap on the maximum number of hours of work permitted;

• providing for exemptions from the maximum working week only through collective agreements or agreements between the social partners;

• providing that derogations from the maximum working week would only be possible when authorised by collective agreements or agreements between the social partners. Where there is no applicable agreement and no employee representation, an individual opt-out under tighter conditions would remain applicable; and

• revising the individual opt-out, with a view to its phasing out, as soon as possible. In the meantime, practical ways of tackling abuses would be identified.

The definition of working time

The Commission states that the Directive currently contains two mutually exclusive definitions: that of 'working time' and that of 'rest period' . There are no intermediate or combined categories and therefore all periods are considered to be either working time or rest. It states that the ECJ’s judgments on on-call working must be seen in the light of this 'binary system' and the Commission therefore wonders whether this system itself is not at the root of the problem and whether a new category of working time should be added.

The consultation document strongly encourages the social partners to reach agreement on the definition of a third category of time - the inactive part of on-call time. Failing that, it states that the Commission will propose the insertion of such as definition into the Directive, in addition to clarifications regarding compensatory rest.

The Commission is also proposing to extend the reference period for the calculation of the maximum working week unless the social partners negotiate on this issue.

Reconciling work and family life

The Commission notes that the need to balance work and family life is 'an all-embracing issue' that cannot be restricted to labour law or the working time issue. However, it also believes that having a say in working conditions and working time 'undeniably contributes not only to a better working environment but also to meeting the needs of workers better, particularly those with family responsibilities' . Thus it believes that, while this Directive may not be right instrument for dealing with this, more could be done to encourage this objective in the text of the Directive.

Commission conclusions

The first conclusion that the Commission draws from this process is that there is a need to revise the Directive. The main challenge here is finding the right balance between the fundamental objective of protecting health and safety, while giving European companies the flexibility needed to keep pace with changes in the economic environment. The Commission states that there must be a clear overall approach and a set of coherent and balanced proposals. It stresses its belief that the role of the social partners in this process should be enhanced.

The consultation document therefore encourages the social partners to initiate the process provided for under Article 139 of the TEC, which states that: 'should management and labour so desire, the dialogue between them at Community level may lead to contractual relations, including agreements'. If an agreement is reached, it could be implemented either in accordance with the procedures and practices specific to management and labour and the Member States or, at the joint request of the signatory parties, by a Council decision on a proposal from the Commission.

Formally, the Commission document requests that the social partners:

• forward an opinion or, where appropriate, a recommendation on the objectives and content of an envisaged proposal in the areas covered by this consultation; and

• notify the Commission if they intend to initiate the negotiation process provided for by the TEC.

Commentary

This is a strongly-worded second consultation document on the revision of the working time Directive. The Commission makes it very clear that it would like the social partners to negotiate on the key issues of the reference period for calculating weekly working time, the definition of working time (ie the introduction of a third type of working time) and, most crucially, the opt-out from the maximum working week. If the social partners do not do this, there is no doubt that the Commission will go ahead and issue its own legislative proposals for a revision of the Directive. If it does this, it is likely that the conditions surrounding the opt-out will be changed. Depending on the course of action it follows, this could mean at least a tightening up of the opt-out, or perhaps even its phasing out as soon as possible. Alternatively, the Commission may seek to make the opt-out conditional upon collective agreements.

In a press release issued immediately after the consultation document appeared, ETUC stated that the consultation was 'an ambiguous text' and criticised the Commission for, in its view, not knowing which way to go. It was particularly critical of the Commission’s views on the opt-out: 'Not only does it still see the retaining of the opt-out as a legitimate possibility, it also considers to further increase the scope for companies to opt out from regulations on maximum working time through collective bargaining.' ETUC stated further that while it is 'in favour of providing for flexibility in the application of working time regulations by collective bargaining, plain opt-outs are unacceptable to ETUC, which has European Parliament support in urging the phasing out of the existing provisions, as they contradict the fundamental right enshrined in European law that each and every worker has a right to limitation of his working hours'. The ETUC general secretary, John Monks, stated that: 'the next stage in this process will be crucial, to prevent that the working time Directive, which is an essential part of the social architecture of Europe, will be watered down for pure economic reasons, against the interests of health and safety and work-life balance of male and female workers in an enlarged Europe'.

UNICE also immediately issued a press release in which Philippe de Buck, its general secretary, stated that UNICE shares 'the widespread belief that there is a need to revise the Directive without delay. Flexibility of working time is crucial for employment and competitiveness in Europe. It is not just in the interests of employers. Unfortunately, the approach sketched out in the Commission document seems to fall short of meeting the challenge.' He stated further that: 'having read ETUC’s press release, I see no prospect of negotiations between us.'

Thus, it would appear that both ETUC and UNICE will have to shift ground considerably if they are to entertain the idea of entering into negotiations on the revision of the working time Directive. If they do not, the Commission is likely to issue its own legislative proposals, which, it would seem, would satisfy neither party. (Andrea Broughton, IRS)