New working time regulations for healthcare workers

New legislation on the working time of healthcare employees comes into force in Hungary on 1 May 2004 (the date it joins the EU). Among other issues, the law regulates maximum working time and the complicated issue of on-call service in the healthcare sector. The reaction of organisations representing healthcare employees to the new rules has been somewhat muted.

As in a number of current EU Member States, the working time of healthcare employees is on the political agenda in Hungary. This is quite a complex matter in Hungary, as healthcare employees may function under a variety of legal statuses. Healthcare employees can be 'normal' employees and thus covered by the Labour Code, but they can also be civil servants or members of the armed forces; self-employment is also quite widespread, especially among family doctors. However, the vast majority of healthcare employees are so-called 'public service employees'- a category largely unknown in the current EU - that is, employees employed by state budget-funded state-owned or municipal hospitals or other healthcare institutions, and this article focuses on this group.

The working time and 'on-call' duty of public service healthcare employees are regulated by a combination of legal instruments: the Labour Code, the Act on Public Service Employees and Government Decree 233/2000 on application of the Public Employee Act in the health sector. Regular working time is set at 40 hours a week. In the case of time accounting systems - whereby working hours may be varied while maintaining an average over a reference period - a reference period of up to six months can be used, during which working time cannot exceed an average 48 hours a week (including overtime). The annual overtime limit is 300 hours, or 400 if so determined in a collective agreement; in emergencies, however, overtime is not limited. These ceilings are considerably higher than those in other industries or public services, generally regulated in the Labour Code.

The regulations currently in force concerning on-call service, a particular feature of healthcare employees' working time, are very similar to those of many other European countries: on-call service in which, for example, a doctor is required to be present and available at a place determined by the employer does not, as such, qualify as working time, apart from the periods during which work is actually performed (which counts as overtime). However, there is an important exception to this: the above-mentioned Government Decree 233/2000 includes provisions that specify the number of hours to be recognised as working time out of total on-call working (for example, out of a regular 24-hour weekend of on-call service, six hours are to be recognised as working hours). However, this automatic assessment rule applies only if hours actually worked are not explicitly taken into account or if no collectively-agreed provision addresses this issue.

The Decree also includes quite complicated provisions on the maximum duration of on-call service. In some cases the aggregate period of consecutive working hours and on-call hours can extend well beyond 24 hours. The maximum number of on-call stints per month is six, although this can be increased in an emergency. Reportedly, it often happens that a doctor remains in the hospital throughout a whole weekend. According to an official survey, doctors spend an annual average of 700-800 hours a year on call in excess of their normal working hours. In practice, doctors, nurses and other hospital employees usually work 12-hour shifts, the statutory maximum working day.

New legislation

The Act on Certain Aspects of Healthcare Activities 2003 (no. LXXXIV) aims to regulate the general employment conditions of healthcare employees, regardless of the legal basis of their employment; the scope of the Act therefore goes far beyond working time. It should also be noted that the drafting of the Act took place before the September 2003 judgment of the European Court of Justice (ECJ) in the Jaeger case (C-151/02) - which established that time spent by a doctor working in a hospital on an on-call basis constitutes working time in its entirety, even if the employer provides a place of rest for the employee to use when not actively engaged in their duties (EU0310202N) - and coincided with preparation of other health sector legal reforms in Hungary, including a law on hospital privatisation (HU0306102N). The new law comes into force on 1 May 2004, when Hungary becomes an EU Member State.

The Act includes the following working time provisions. The maximum duration of the reference period for time accounting systems is six months. With no provision to the contrary, normal weekly working hours remain at 40, in accordance with the Labour Code. Similarly, the maximum duration of daily 'healthcare activity' is 12 hours and the weekly statutory maximum working time is 48 hours, in line with the EU working time Directive (93/104/EC) and the Hungarian Labour Code. However, there is a possibility for voluntary extra hours (via an 'opt-out') of up to 12 hours a week in addition to the statutory 40 hour week. Therefore, the maximum weekly working time, adding overtime and voluntary hours, can be as much as 60 hours. Agreeing to voluntary working hours in addition to the 48-hour week is encouraged by a special wage rate which is 50% higher than the overtime premium, while such voluntary hours are also taken into account as an extra service period in the calculation of old-age pensions.

As many public service healthcare employees have second jobs in the private sector, or also work as self-employed, the law limits their overall working time. While in the private and the not-for-profit sectors the 60-hour weekly maximum for healthcare activities is calculated on the basis of a six-month reference period - ie more hours may be worked in a given week as long as the six-month average does not exceed 60 - in their 'normal' or public service employment healthcare employees may not work more than 60 hours in any given week. Neither the new Act nor other Hungarian laws provide different regulations for the working time of doctors in training, though EU legislation tolerates longer working hours for this group.

Views of workers' representatives

When hospital privatisation was on the political agenda in mid-2003, organisations representing healthcare employees demanded new legislation on the 'legal status' of doctors and other healthcare professionals (HU0306102N). In autumn 2003, tension mounted as a consequence of the proposed Act. Several demonstrations were staged, the biggest one by the Hungarian Chamber of Physicians (Magyar Orvosi Kamara, MOK) and the Democratic Union of Healthcare Employees (Egészségügyi és Szociális Ágazatban Dolgozók Demokratikus Szakszervezete, EDDSZ) in front of the premises of the Ministry of Health, Social and Family Affairs (Egészségügyi, Szociális és Családügyi Minisztérium, ESZCSM). The demonstrators' demands concerned mainly opposition to privatisation, public financing of the sector and wages, accompanied by some political discontent with the ruling coalition parties. Interestingly, working time was not a particular issue.

Surprisingly, commenting on the draft version of the Act, MOK proposed a maximum of 72 hours a week for healthcare activities, probably on the grounds that Hungarian doctors are more interested in increasing their salaries than in reducing their working hours. By the end of 2003, the new Act was no longer on MOK's agenda, having been squeezed out by other issues and events, for example a scandal about the obscure system of 'gratitude money' paid by patients, sometimes in advance of actual treatment. Unsurprisingly, such issues attracted public attention much more than the 'invisible' problems of working conditions, and opened up a new 'frontline' in the constant battle between Ministry of Health, Social and Family Affairs and MOK.

Commentary

Four months before the new Act on Certain Aspects of Healthcare Activities comes into effect, one very important issue has not yet been properly clarified: does the scope of the 'healthcare activity' of public service healthcare employees, as regulated by the Act, include only working time or both working time and on-call service? From the legal text it seems obvious that on-call service is included, since it is named as part of 'healthcare activity'. While this interpretation seems to be supported by government representatives, in another communication the Ministry of Health, Social and Family Affairs has said that on-call service is under revision. Indeed, the new Act does not refer to Government Decree 233/2000, nor is there any information on the repeal or modification of this Decree. Should the latter interpretation be correct - and on-call service is not included in 'healthcare activity'- the Act increases the working time of healthcare employees only insofar as it introduces voluntary extra hours. In this case, Hungary’s legislation will not be in line with the ECJ's judgements in the Jaeger case and the earlier SIMAP case on a similar issue. Obviously, such uncertainty is not only a theoretical problem of conformity with EU law, but also calls into question the application of the new regulations once they come into force. It is in this context that the silence of the relevant organisations representing the interests of healthcare professionals is especially worrisome.

Although this article has not covered all the aspects of the health sector regulated by the new law, it is worth mentioning that other provisions of the Act are also bound to raise serious concerns. For instance, according to the Act, doctors are part of the hospital hierarchy, even if some of them are self-employed (HU0310102F). Similarly controversial are the wage provisions of the Act.

The issue of working time regulation is just the tip of the iceberg as far as the problems of the Hungarian healthcare sector are concerned. Persistent postponement of reforms and the harsh economic reality of under-financing make it impossible to conform to European standards in many areas. According to the Ministry of Health, Social and Family Affairs, 10,000 to 15,000 more doctors are required in order to comply with the SIMAP/Jaeger judgments. While this figure may be exaggerated, it is well known that doctors are one occupational group whose migration to current EU Member States will soon represent a real problem. (Gábor T Fodor and László Neumann, Institute of Political Science, Hungarian Academy of Sciences)