Working time - developments in EU and national regulation

Overview

Article

Working time - developments in EU and national regulation

Published: 28 April 2004

The main aim of Council Directive 93/104/EC [1] of 23 November 1993 concerning certain aspects of the organisation of working time is to protect workers against adverse effects on their health and safety from working excessively long hours, or having inadequate rest or disruptive working patterns. Its legal basis is Article 118a (now Article 137) of the Treaty establishing the European Community [2], which deals essentially with the health and safety of workers. The Directive lays down a series of important minimum health and safety requirements for the organisation of working time.[1] http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=en&numdoc=31993L0104&model=guichett][2] http://europa.eu.int/eur-lex/en/treaties/dat/EC_consol.html

In 2003-4, the re-examination of EU Directive 93/104/EC has reinforced the customary position of the regulation of working time near the top of the industrial relations agenda at European Union level and in many individual countries. This article looks at: the European Commission's re-examination exercise; a number of aspects of the regulation of working time in law and agreement in the Member States (including the acceding and candidate countries in many cases) and Norway; and legislative and collective bargaining developments in this area in 2003.

The working time Directive

The main aim of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time is to protect workers against adverse effects on their health and safety from working excessively long hours, or having inadequate rest or disruptive working patterns. Its legal basis is Article 118a (now Article 137) of the Treaty establishing the European Community, which deals essentially with the health and safety of workers. The Directive lays down a series of important minimum health and safety requirements for the organisation of working time.

The Directive applies to all sectors of activity, both public and private. Air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training were excluded from the scope of the 1993 Directive. However, the European Parliament and the Council adopted, on 22 June 2000, Directive 2000/34/EC, which extended the working time Directive to all the previously excluded sectors (EU0005249F).

These two Directives were codified into a consolidated text (Directive 2003/88/EC) in November 2003. Nevertheless, Directive 2003/88/EC enters into force only on 2 August 2004, and Directive 93/104/EC, as amended, therefore remains the only legal text in force until that date.

Briefly, the Directive's key provisions are as follows.

Rest period (Article 3). Workers are entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period. Derogations are allowed in certain circumstances (see below).
Breaks (Article 4). Every worker is entitled to a rest break where the working day is longer than six hours. The details of the rest break are to be laid down in collective agreements or agreements between the two sides of industry or, failing that, by national legislation. Derogations are allowed in certain circumstances (see below).
Weekly rest period (Article 5). An uninterrupted rest period of 24 hours is required for each seven-day period, plus the 11 hours daily rest referred to in Article 3. Derogations are allowed in certain circumstances (see below). The Directive originally contained a provision that the weekly rest period should in principle include Sunday. The European Court of Justice (ECJ) annulled this provision. However, nine of the current 15 Member States have specific provisions relating to Sunday rest.
Maximum weekly working time (Article 6). The average working time for each seven-day period, including overtime, must not exceed 48 hours (see table 1 below for the maximum weekly and daily working time set by national legislation). For the calculation of the average, Article 16(2) allows a reference period of four months, from which periods of annual leave and sick leave have to be excluded. Article 16(2) may be derogated from in various cases provided for in Article 17. Furthermore, Article 18(1)(b)(i) allows 'a Member State' not to apply Article 6 in the case of workers who agree to 'opt out' of the maximum weekly working time. The UK is the only Member State currently making general use of this possibility.
Four weeks' paid annual leave (Article 7). Workers are entitled to paid annual leave of at least four weeks and the replacement of the leave by an allowance in lieu is prohibited. The Directive does not allow any derogations from Article 7 (for details of statutory minimum annual leave and average collectively agreed annual leave, see table 2 below).
Night work (Articles 8, 9, 10, 11 and 12). According to Article 8(1), the normal hours of work for night workers should not exceed an average of eight hours in any 24-hour period. The notion of 'normal hours of work' includes overtime as indicated in the preamble to the Directive: 'Whereas there is a need to limit the duration of periods of night work, including overtime…' Derogations are allowed in certain circumstances (see below). Other important provisions on night work relate to a free health assessment for night workers, the transfer from night work to day work in certain circumstances and notification by employers of the use of night workers.

**Table 1. Statutory maximum working week and day, 2003 (hours)**
Austria	40	10
Belgium	38	8
Cyprus*	48	13
Denmark*	48	13
Estonia	40	8
Finland	40	8
France	48	10
Germany**	48	8
Greece	48	13
Hungary	48	12
Ireland*	48	13
Italy*	48	12
Latvia	40	8
Luxembourg	48	10
Malta	48	12.5
Norway	40	9
Netherlands	48	9
Poland	40	8
Portugal	48	10
Romania	48	8
Slovakia	40	9
Slovenia	40	10
Spain	40	9
Sweden	40	8
UK*	48	13

* No explicit maximum working day (except for night workers), but a 13-hour maximum can be derived from the application of the working time Directive's minimum 11-hour daily rest period. ** No explicit weekly maximum in Germany, the 48-hour figure represents an average based on daily maximum rules.

Notes: These statutory maximum figures may be exceeded in many countries, in the context of working time flexibility schemes allowing weekly and daily hours to be varied around an average over a reference period (as permitted by the EU Directive) - see table 3. Furthermore, the situation varies as to whether the maximum figure includes overtime - see table 4.

Source: EIRO.

Derogations

Article 17 permits Member States to derogate from some Articles of the Directive under specific conditions and, as the case may be, by specific means. The idea of derogation is to retain the principles set out in the Directive, while allowing flexibility in the application of those principles. There are essentially three types of derogation:

the first type is where the duration of working time is not measured and/or predetermined or can be determined by the workers. The Directive mentions three particular activities for which this derogation is permitted (managing executives, family workers and workers officiating at religious ceremonies). The list is not exhaustive but should be interpreted restrictively. In this case, the derogation is allowed for quite a number of the key Articles of the Directive (3, 4, 5, 6, 8 and 16);
the second type of derogation is in accordance with a set of criteria set out in detail in the Directive, followed by examples (eg press, radio and agriculture). Although these derogations are allowed from most of the same Articles as for the first type, it is important to note that they are not allowed in respect of the maximum weekly working time. Such derogations are permitted on condition that workers 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; and
finally, derogations are also permitted from Articles 3, 4, 5, 8 and 16 by means of collective agreements or agreements between the two sides of industry (these can apply to any industry or activity). The same conditions apply as those described above with respect to equivalent compensatory rest.

Exception (the individual 'opt-out')

Article 18(1)(b)(i) of the working time Directive provides that 'a Member State shall have the option not to apply Article 6 while respecting the general principles of the protection of safety and health of workers ...', subject to complying with other specific conditions. Article 6 lays down the principle of a maximum weekly working time of 48 hours.

**Table 2. Statutory minimum and average collectively agreed annual paid leave (in days), 2003**
Country	Statutory	Collectively agreed
Austria	25.0	25.0
Belgium	20.0	nd
Bulgaria	20.0	nd
Cyprus	20.0	20.0
Denmark	25.0	30.0
Estonia	20.0	nd
Finland	20.0	25.0
France	25.0	25.0
Germany	20.0	29.1
Greece	20.0	23.0
Hungary	20.0	nd
Ireland	20.0	20.0
Italy	20.0	28.0
Latvia	20.0	nd
Luxembourg	25.0	28.0
Malta	24.0	nd
Netherlands	20.0	31.3
Norway	21.0	25.0
Poland	20.0	nd
Portugal	22.0	24.5
Romania	20.0	24.0
Slovakia	20.0	nd
Slovenia	20.0	nd
Spain	22.0	nd
Sweden	25.0	33.0
UK	20.0	24.5

Notes: the leave is expressed in days and harmonised on the basis of a five-day working week, and the statistics given are the basic entitlement (entitlement increases with length of service in some countries). For details of sources and calculations methods see EIRO record 'Working time developments - 2003', March 2004 (TN0403104U).

Source: EIRO.

Communication on re-examination of the working time Directive

The Commission adopted on 30 December 2003 a Communication (COM(2003) 843 final) concerning the re-examination of Directive 93/104/EC concerning certain aspects of the organisation of working time (EU0402203F).

Why a Communication now?

The Directive contains two provisions allowing for their review prior to the expiry of a seven-year period reckoned from the deadline for transposal by the Member States, ie prior to 23 November 2003. These provisions concern the derogations from the reference period for the application of Article 6 (maximum working week) and the option of not applying Article 6 if the worker agrees to carry out such work (generally known as the 'opt-out').

On the other hand, the interpretation of the provisions of the Directive by the ECJ in a number of preliminary rulings pursuant to Article 234 of the Treaty has had a profound impact on the concept of 'working time' and, therefore, on essential provisions of the Directive. It is therefore necessary and opportune to analyse the effects of this case law, particularly the judgments in two cases concerning the qualification as working time of periods on call for doctors if they are required to be at the health centre. These are the ECJ judgments:

of 3 October 2000 in case C-303/98, Sindicato de Medicos de Asistencia Pública (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana, European Court reports 2000, p. I-07963; and
of 9 October 2003 in case C-151/02, request to the Court by the Landesarbeitsgericht Schleswig-Holstein (Germany) in the proceedings pending before that court between the Landeshauptstadt Kiel and Norbert Jaeger, not yet published.

The Commission felt the need to take a broad approach to a possible revision of the working time Directive, having realised that practice shows a great interrelation between different provisions of the Directive. For instance, in order to cope with the effects of the ECJ rulings on the qualification of residential on-call time as 'working time', some Member States have started making use of the opt-out.

On the other hand, any modification of this Directive has to strike a good balance between a high level of protection for workers and a high degree of flexibility for firms. In this context, the Commission is of the opinion that the revision of the working time Directive could be exploited in such a way as to encourage the Member States to take steps to improve the compatibility of work and family life.

Therefore, the aim of the Communication is threefold:

to evaluate the application of the two provisions subject to review - the derogations from the reference periods (Article 17(4)) and the opt-out (Article 18(1)(b)(i));
to analyse the impact of the ECJ case law concerning the definition of working time and the qualification of time on call, as well as new developments aimed at improving compatibility between working and family life; and
to consult the European Parliament and the Council, but also the European Economic and Social Committee, the Committee of the Regions and the social partners, on a possible revision of the text.

With regard to the European social partners, this Communication should be considered as the first phase of consultation pursuant to Article 138(2) of the Treaty. The Commission will of course subsequently consult the social partners on the content of all proposals envisaged (Article 138(3)).

Content of the Communication

In its first part, the Commission's Communication analyses and evaluates the application of the two provisions of the Directive subject to re-examination, and also the definition of working time following the case law of the ECJ and the question of the balance between work and family life.

Derogations from the reference periods

The reference periods for the application of Articles 5 (weekly rest period) and 6 (maximum working week) are laid down in Article 16 of the Directive.

With regard to calculating the maximum working week (48 hours), Article 16(2) lays down a reference period of not more than four months (see table 3 below for details of national legislation on varying weekly hours over a reference period). However, it is possible to derogate from Article 16 and the reference periods may therefore be extended in the cases provided for in the first three paragraphs of Article 17.

This option to derogate from the reference period is nevertheless limited by Article 17(4) of the Directive. This is worded as follows:

The option to derogate from point 2 of Article 16, provided in paragraph 2, points 2.1 and 2.2 and in paragraph 3 of this Article, may not result in the establishment of a reference period exceeding six months.
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.
Before the expiry of a period of seven years from the date referred to in Article 18(1)(a), the Council shall, on the basis of a Commission proposal accompanied by an appraisal report, re-examine the provisions of this paragraph and decide what action to take.

In summary, the reference period for calculating the 48-hour week is set at four months. It may be set at six months in cases where it is possible to derogate from Article 16. Furthermore, by collective agreement, it may be extended up to 12 months.

It is not always easy to analyse national legislation with regard to the transposition of Articles 6 and 16. In certain cases, the Member States, instead of limiting average working time during a given reference period, lay down an absolute daily and/or weekly limit while allowing overtime within daily, weekly, monthly or yearly limits (see table 4 below for details of national legislation on overtime).

In only four Member States (Greece, Ireland, Portugal and the UK does the legislation faithfully reproduce the provisions of the Directive, ie a reference period of four months for calculating the maximum average weekly working time and the possibility of laying down a longer reference period by collective agreement which, however, may not exceed 12 months. It does not mean that all the other Member States are in breach of the Directive, but that they have chosen other ways to achieve the objective of limiting the weekly working time. For instance:

in Denmark, reference periods are not laid down by law. Collective agreements lay down 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 lay down a one-year reference period for ordinary working time, and for limiting overtime; and
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, but which apply only to the calculation of ordinary working time, which is considerably less than the 48 hours laid down in the Directive.

In general, there appears to be a tendency towards expressing working time as an annual figure (TN0308101S) - see table 5 below for details of collective bargaining in the various countries on annualised hours and hours-variation schemes.

**Table 3. Legislative framework for working time variation and annualised hours (AH) schemes, 2003**
Country	Main legislation	Reference period	Maximum daily hours	Maximum weekly hours	Average weekly hours (or annual maximum)	Conditions and exceptions
Austria	Working Time Act (Arbeits- zeitgesetz, AZG) 1997 (plus decrees in the case of public services, based on specific service regulations for the various groups of public servants).	Up to 12 months	-	48	40 (or collectively agreed week, if shorter)	Collective agreement required for introduction of AH (or works agreement if there is an 'opening clause' in relevant collective agreement).
Belgium	Laws of 16 March 1971 (as amended), 10 August 2001 and 17 March 1987 and national collective agreements No. 42 of the 2 June 1987 and No. 42bis of 10 November 1987.	Between 3 and 12 months	9 under flexible working week schemes; 11 or 12 for specific reasons	45 under flexible working week schemes; 50 or 56 for specific reasons	38	Flexible working week schemes: normally require sectoral collective agreement. Specific reasons: AH permitted for technical or practical reasons or to cope with exceptional surge in work, and agreement of sectoral joint committee generally required. Throughout reference period, number of hours worked may not exceed normal limits by more than 65 hours, without immediate compensatory rest being granted.
Denmark	2002 law implementing EU working time Directive.	Up to 4 months	-	-	48	-
Finland	Working Hours Act (605/1996).	Up to 52 weeks	-	-	40	Sectoral collective agreement (or local agreement if permitted for sectoral agreement) usually required for exceeding statutory working time limits of 8 hours a day and 40 hours a week
France	June 1996 'Robien law' on working time reduction, June 1998 and January 2002 'Aubry laws' on working time reduction.	Up to 12 months	10	48 or 60 in special cases	35 (maximum of 1,600 per year)	Sectoral or company collective agreement required for introduction of AH.
Germany	Working Time Act (Arbeitszeitgesetz) 1994.	24 weeks	10	48	8 per day	Collective or works agreements may establish a different reference period or extend hours beyond 10 a day in certain circumstances.
Greece	Laws 2639/1998 and 2874/2000.	Up to 12 months	12	-	40 (38 or 1,748 per year if reference period is 12 months)	-
Ireland	Organisation of Working Time Act 1997.	Up to 4 months, or up to 12 by agreement	-	-	48	Collective or individual agreement required to extend reference period from 4 to a maximum of 12 months.
Italy	Law No. 196/1997 (article 13), ministerial circular No. 10/2000, and legislative decree No. 66/2003.	Up to 4 months, or up to 12 by agreement	-	-	48	Collective agreement required to extend reference period from 4 to a maximum of 12 months.
Luxembourg	Laws of 9 December 1970 and 12 November 1971 as most recently amended by laws of 12 February 1999, 8 March 2002 and 20 December 2002.	1 month/4 weeks or up to over 1 year by agreement	10	48	40 (10 per day)	Collective agreement (or ministerial authorisation in absence of agreement) required to extend reference period from 1 month/4 weeks to 1 year or more.
Netherlands	Working Time Act (Arbeidstijdenwet) 1995.	13 weeks	Standard - 9; by agreement - 10; special circumstances - 12	Standard - 45; by agreement - 50 (over 4 weeks); special circumstances - 60	Standard - 40. By agreement - 45. Special circumstances - 48	Collective agreement or agreement with works council required to exceed standard rules in all cases.
Norway	Worker Protection and Working Environment Act (Arbeidsmiljøloven, AML) 1997.	Individual agreement - up to 1 year; collective agreement - up to 1 year; Labour Inspectorate permit - up to 6 months.	Individual agreement - 9; collective agreement - 10; Labour Inspectorate permit - no limits.	Individual agreement - 48; collective agreement - 54; Labour Inspectorate permit - no limits.	Normal hours.	Individual employer-employee written agreement required for basic AH scheme; collective agreement required for higher daily and weekly limits; Labour Inspectorate permit required for no daily and weekly limits (but over shorter period).
Portugal	Law No, 73/98 of 10 November 1998 on general organisation of working time	Up to 4 months or up to 12 by agreement	-	-	48	Collective agreement required to extend reference period from 4 to a maximum of 12 months.
Spain	Royal Decrees 1/1995 and 1561/1995, Laws 39/1999 and 12/2001	Up to 12 months	9	50	40	Collective agreement required for introduction of collective AH (though some individual employment contracts may allow for AH).
Sweden	Working Time Act (Arbetstidslagen) 1982.	4 weeks	-	-	40	Variation over reference period allowed where necessary because of nature of work. Derogations from working time rules generally allowed by collective agreement.
UK	Working Time Regulations 1998.	Up to 17 weeks, or up to 26 weeks in certain cases, or up to 52 weeks by agreement.	-	-	48	Collective agreement (or workforce agreement where unions not recognised) required to extend reference period up to 52 weeks. Workers may 'opt out' of 48-hour weekly limit.

Source: EIRO comparative study on 'Annualised hours in Europe', August 2003 (TN0308101S).

Extension of the reference period by collective agreement

According to Article 17(4) of the Directive, the reference period for calculating the 48-hour week may be extended to 12 months only by collective agreement or other agreements concluded between the social partners. In practice, it would appear, however, that the Member States are not all in the same situation with regard to this possibility of extending the reference period. The coverage of collective bargaining - namely the proportion of workers whose pay and working conditions are laid down, at least to a certain extent, by collective agreements - varies considerably within the EU, but is generally high, with the exception of the UK, as shown by figure 1 below.

Source: EIRO

Thus, although certain countries reach or approach 100% coverage, coverage in the UK is only 36%. The percentage of coverage would be even lower if only the private sector (22%) were taken into account.

Furthermore, it should be noted that the possibility of derogating from certain provisions of the Directive through agreements other than collective agreements concluded between social partners has not been widely used. Thus in the UK, for example, 'workforce agreements' (UK9810154F) have hitherto been rarely used.

**Table 4. Principal features of overtime schemes, 2003**
Country	*Maximum working time (minimum daily rest period, where no maximum daily hours)**	Threshold marking beginning of overtime**		Specific maximum overtime limits	Conditions for use of overtime (procedures, justifications)	Enhanced pay rate and/or time off in lieu
Country		Method of setting threshold	Threshold level	Specific maximum overtime limits		Enhanced pay rate and/or time off in lieu
Austria	10 hours per day, 50 hours per week (maximum under certain conditions).	Legislation.	8 hours per day, 40 hours per week, which is above average collectively agreed working time.	5 hours per week, and additional 60 hours per year.	No conditions.	50% pay rate or 50% time off in lieu
Belgium	8 hours per day, 38 hours per week.	Legislation and agreements (at sector or company level).	8 hours per day, 38 hours per week.	None.	May only be used on specific grounds - exceptional peaks of work, force majeure, unforeseeable needs. Authorisation procedures vary according to reason.	50% pay rate ( 100% at weekends and public holidays) - may be converted into time off in lieu if provided for by collective agreement.
Denmark	48 hours per week (minimum daily rest period of 11 hours).	Agreements (at sector or company level).	37 hours per week (industry sector agreement).	12 hours over 4 weeks (industry sector agreement).	Notice period required (industry sector agreement).	Companies with agreement - increased pay rate, then time off in lieu for overtime hours over a threshold (8 hours in 4 weeks in industry sector agreement). Companies without agreement - mostly time off in lieu.
Finland	8 hours per day, 40 hours per week.	Legislation or agreement.	40 hours or collectively agreed working time.	138 hours over a 4-month period, 250 hours per year over statutory threshold of 40 hours, raised by 80 hours per year if the 138 hours over a 4-month period is complied with.	Individual agreement of the employee required for work over 40 hours per week.	50% pay rate for the first 2 hours per day, 100% above that. May be converted into time off in lieu by agreement.
France	10 hours per day, 48 hours per week.	Legislation.	35 hours per week.	180 hours per year or set by collective agreement.	No conditions. Permission from authorities required for exceeding annual limits.	Between 35th and 43rd weekly hour - minimum pay rate of 10% ( 25% without agreement) or time off in lieu by agreement. From 44th hour - 50% pay rate.
Germany	8 hours per day, 48 hours per week.	Agreements (at sector level).	Varies between sectoral agreements.	Varies between sectoral agreements.	Agreement of works council required, except where sectoral agreement includes specific provision.	Increased pay rate and/or time off in lieu, by collective agreement.
Greece	9 hours per day, 43 hours per week (assuming five-day week).	Legislation.	40 hours.	3 hours per day over 43 hours (in case of emergency, no limits on the first day, and 4 hours on the next 4 days). Annual limits, varying by sector and region set every six months by Ministry of Labour.	Over 43 hours per week requires justification, notification of authorities and record-keeping.	From the 40th to the 43rd weekly hour - 50% pay rate. From 44th hour - 150% pay rate.
Hungary	12 hours per day, 48 hours per week.	Legislation.	8 hours per day, 40 hours per week.	200 hours per year, may be raised to 300 hours by agreement.	Reasons required, notice to be given, record-keeping compulsory.	50% pay rare (or time off in lieu by agreement), 100% pay rate for work on a holiday (or 50% if time off in lieu granted.)
Ireland	48 hours per week (minimum daily rest period of 11 hours).	Agreements.	Varies between (mainly company) agreements (average 39 hours).	2 hours per day, 12 hours per week, 240 hours per year, or 36 hours over 4 consecutive week. Limits can be exceeded with permission from the authorities.	No conditions.	25% pay rate (agreements often lay down higher rates).
Italy	48 hours per week (minimum daily rest period of 11 hours).	Legislation and agreements (at sector level).	40 hours per week.	250 hours per year (may be lower by agreement).	Collective agreement required (sector or company-level).	10% rate (in absence of agreement on higher rate).
Luxembourg	10 hours per day, 48 hours per week.	Legislation.	8 hours per day, 40 hours per week.	None, but overall statutory daily and weekly working time limits (see first column).	Permitted only on specific grounds (eg exceptional cases), permission from the authorities required.	25% pay rate for blue-collar workers, 50% for white-collar worker. May be converted into time off in lieu at 50% for all workers.
Netherlands	12 hours per day (11 hours if no agreement), 60 hours per week (54 with no agreement), 624 hours per 13-week period. (585 without agreement).	Legislation and agreements.	Varies between collective agreements (no fixed level).	None, but overall statutory daily, weekly and quarterly working time limits (including 'incidental hours'), which may be extended within limits by agreement (see first column).	Must be 'incidental' and not 'structural'. Collective agreements often require agreement of works council and/or employees concerned.	Increased pay rate and/or time off in lieu, by collective agreement.
Norway	9 hours per day, 48 hours per week.	Legislation.	9 hours per day, 40 hours per week, which is above average collectively agreed working time (37.5 hours).	200 hours per year (overtime between 200-400 hours per year allowed by individual agreement).	Permitted only on specific non-permanent grounds (eg unforeseen events or volume of work). Subject (if possible) to discussion with (elected) staff representatives and (for overtime between 200-400 hours) to agreement with employee.	40% pay rate (usually 50% by agreement, and 100% after 21.00).
Poland	10 hours per day, 40 hours per week.	Legislation.	8 hours per day, 40 hours per week (over 5-day week).	4 hours per day, 150 hours per year.	Permitted only on specific grounds (eg employers' special needs or rescue operations), monitored by the authorities.	50% pay rate for the first 2 hours, 100% for further hours (and work at night, on Sunday and holidays. May be converted into time off in lieu at request of employee and with employer’s agreement.
Portugal	8 hours per day, 44 hours per week (up to 10 hours per day and 50 hours per week, by agreement).	Legislation and agreements.	8 hours per day, 44 hours per week (up to 10 hours per day, 50 hours per week by agreement).	2 hours per day, 200 hours per year.	Permitted only on specific grounds (eg unscheduled increased workload or force majeure), record-keeping required.	50% pay rate for 1st hour, 75% thereafter that, 100% on rest days and holidays. Plus time off in lieu at 25% of the hours worked.
Slovakia	58 hours per week (exemption available by collective agreement and permission from the authorities).	Legislation.	40 hours per week over 5- day week ('regular' working schedule - daily minimum of 3 hours and maximum of 9 hours).	18 hours per week, 150 hours per year (excluding certain overtime, such as in the event of disasters). Up to 300 hours in special cases by company-level agreement and with authorities' permission.	No conditions for up to 150 hours per year.	25% pay rate (higher by company-level agreement).
Spain	9 hours per day, 40 hours per week.	Legislation.	40 hours per week, which is above average collectively agreed working time.	80 hours per year.	Requires collective agreement or agreement by employee.	Increased pay rate (average 18%) or time off in lieu, by collective agreement.
Sweden	8 hours per day, 40 hours per week.	Legislation.	40 hours per week, which is above average collectively agreed working time.	None, but overall statutory weekly working time limits (see first column). Temporary exemptions possible by (company or workplace level) agreement .	Must be justifiable (eg special needs, or employers' requirements) and often subject to agreement (company or workplace-level). Record-keeping compulsory, monitoring by staff representatives.	Increased pay rate (usually 50% to 100%) or time off in lieu, by collective agreement.
UK	48 hours per week (minimum daily rest period of 11 hours).	Agreements (company-level).	Varies between (company-level) agreements.	None, but overall statutory weekly working time limits (from which individuals may 'opt out').	No conditions.	Increased pay rate or time off in lieu, by agreement.

* However it is described (maximum or standard) in the national regulations; ** Threshold beyond which increased pay rate or time off in lieu for overtime begins, either called 'maximum working time', or the 'statutory period', or equivalent to the collectively agreed working hours, depending on the country.

Source: EIRO comparative study on 'Overtime in Europe', February 2003 (TN0302101S).

On the opt-out

From a legal point of view, the Commission expresses some doubts about the conformity of UK national law relating to the opt-out from the 48-hour maximum working week with the relevant provisions of the Directive. The Commission notes that legislation and practice do not appear to offer all the guarantees laid down by the Directive. First, a number of information sources note a certain generalisation in the presentation of the opt-out agreement when the employment contract is signed. This practice appears to undermine the second indent of Article 18(1)(b)(i), which aims to guarantee the worker’s free consent by ensuring that no worker may suffer harm due to the fact that he or she is not prepared to give his or her agreement. It is legitimate to suppose that if the opt-out agreement must be signed at the same time as the employment contract, freedom of choice is compromised by the worker’s situation at that moment.

Moreover, according to the third and fourth indents of that Article, the Member States wishing to use the opt-out must ensure that the employer keeps up-to-date records of all workers who carry out such work and 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.

These two indents clearly show that the intention of the Community legislature was that the employer should keep a record of the hours actually worked by workers who had signed an opt-out agreement.

Amendments introduced to the UK Working Time Regulations in 1999 (UK9907117N) reduce the obligations to keep records to the simplest terms: only the agreement itself must be conserved. This does not seem compatible with the requirements of the Directive mentioned above.

On a more practical approach, it has to be noted that the main characteristics of the system governing working time in the UK have remained unchanged despite the entry into force of the Directive, mainly as a result of using the opt-out (UK0401104F).

According to available figures, approximately 4 million people, or 16% of the UK workforce, currently work more than 48 hours per week, although there were only 3.3 million (or 15%) at the beginning of the 1990s. It also appears that the number of people working over 55 hours per week has increased, and now stands at 1.5 million. In fact, the UK is the only Member State where weekly working time has increased over the last decade. According to a document dated April 2003 sent to the Commission by the UK government, however, the percentage of people stating that they habitually work more than 48 hours has been constantly falling since 1999, albeit slowly, although the trend in the preceding period was upwards - see figure 2 below.

Figure 2. Percentage of full-time employees in the UK who usually work over 48 hours each week, 1984-2002

Source: spring labour force surveys.

The document from the UK authorities confirms figures obtained from other sources concerning the percentage of people habitually working more than 48 hours per week (about 4 million or 16% of workers). Among those declaring that they work more than 48 hours, 65% say that they work over 50 hours, 54% over 52 hours and 38% over 55 hours.

Surprisingly, the number of workers who have signed an opt-out agreement is considerably higher than the number of people usually working more than 48 hours. There are no reliable statistics on the number of workers who have agreed (or refused) to sign an opt-out. However, all parties agree that it is considerably higher than the number of workers who strictly need it. For example, according to a survey of UK employers, 65% of the 759 undertakings which replied to the questionnaire asked their employees to sign an opt-out agreement. The agreement had been signed by over half of the workers in 61% of these undertakings. In 28% of them, all workers had signed the opt-out agreement. According to a survey commissioned by the Confederation of British Industry, 33% of UK workers have signed an opt-out agreement (UK0310102N), ie more than double those who say that they actually work more than 48 hours a week over a long period.

If the number of workers who have signed an opt-out agreement is far higher than those who work on average more than 48 hours per week over a 17-week period, one might well ask why. According to the available information, there are a number of reasons for using the opt-out:

people habitually work more than 48 hours and want to continue to be able to do so;
the reference period for calculating the 48-hour week does not make it possible to respond to the flexibility needs of undertakings, and it can be extended to one year only by collective agreement;
potentially applicable derogations are unclear; and
it minimises administrative constraints.

**Table 5. Collective bargaining on annualised hours (AH)/working time variation schemes, situation in 2003**
Country	Main features
Austria	Many sectoral agreements provide for various AH schemes - often allowing variations only over a few weeks, but sometimes over 12 months under a 'bandwidth' model - leaving detailed implementation to company-level works agreements (between management and works council). For example, averaging over 12 months is allowed under agreements in sectors such as metalworking, paper production, construction, ceramics and information technology. Such schemes are not always taken up in works agreements, but where they are, agreements typically provide for a 13-52 week reference period, during which weekly hours may be as high as 40, if the 38.5-hour norm is maintained on average.
Belgium	Many sectoral agreements provide for AH schemes, often linked with working time reductions, while referring details of implementation to company level. Examples of such agreements include: clothing and garment manufacturing (blue-collar workers); chemicals (blue-collar); food retail (white-collar); banking; and healthcare.
Denmark	AH schemes are provided for by the industry sector agreement, the largest in the private sector, as well as the agreements in insurance and some parts of the public sector. These provide for a 37-hour week to be maintained on average over a 12-month reference period, subject to a 48-hour weekly upper limit (which may, rarely, be exceeded by local agreement) with detailed implementation to be agreed locally.
Finland	Many sectoral agreements provide for AH schemes, with a 12-month reference period relatively common - as in the graphical, chemicals and metalworking industries - plus daily and weekly upper limits in many cases. Within this framework, company-level bargaining on AH is often allowed by sectoral agreements.
France	Under the influence of legislation, collective agreements at sector and company level now very commonly provide for AH schemes, with a 35-hour week maintained on average within weekly limits, usually over a 12-month reference period.
Germany	Numerous sectoral agreements and company-level works agreements provide for various AH schemes, often in the form of annual working time accounts and flexible weekly working time.
Greece	There are virtually no collective agreements on AH schemes, with the only exceptions being a handful of company agreements in manufacturing industry.
Ireland	There are some company-level agreements on AH, notably a few high-profile annualisation deals at relatively large manufacturing firms such as Aughinish Alumina, Shannon Aerospace, SIFA and Honeywell. Recent attempts to introduce AH agreements in parts of the public sector - such as the prison service - have proved problematic.
Italy	AH schemes of a kind - in the form of 'multi-period work schedules' (whereby the number of weekly hours worked may vary around an average during certain periods of the year) - feature in all sectoral agreements. Some sectoral agreements - as in chemicals, metalworking, banking, textiles, commerce and local government - provide for 'hours banks', while only the chemicals agreement provides for a fully annual working time schedule (with 247.5 working days per year and weekly working time varying around an average of 37.75 hours, within limits). Supplementary company-level agreements may elaborate on some aspects of the sectoral AH provisions.
Luxembourg	Under the influence of legislation, around four out of 10 (mainly company-level) agreements concluded in recent years have provided for AH schemes, allowing averaging of working hours over a period of between four weeks (most common) and a year (less common, and mainly among craft workers such as electricians, installation engineers, painters and roofers).
Netherlands	Only a relatively small minority of (mainly sectoral) collective agreements provide for AH schemes exceeding the statutory norms, for example in terms of higher average weekly hours during the 13-week statutory reference period. Only a few agreements provide for full annualisation - examples are those wood-trading and meat-processing. At company level, agreements with works councils often elaborate on the working time provisions in sectoral agreements, which may include AH arrangements.
Norway	Only a minority of sectoral agreements provide for any form of AH, though some explicitly refer to the relevant legislation (the AML) on this point and thus allow, at least in theory, hours-averaging over a reference period, while a few allow averaging but with stricter rules (eg on reference periods) than in the AML. In the 2002 bargaining round, the Norwegian Confederation of Trade Unions (Landsorganisasjonen i Norge, LO) and the Confederation of Norwegian Business and Industry (Næringslivets Hovedorganisasjon, NHO) agreed to 'allow for the calculation of average working time according to the rules of the AML'. This phrase was incorporated into all the agreements to which LO and NHO are party, and in a number of other agreements in the private sector. In the public sector, AH in the form of 'flexible hours' is widely regulated and practiced. Thus there are now relatively few agreements that severely restrict or prevent AH.
Portugal	There are no known sectoral agreements that provide for AH schemes, and the matters is dealt with in only a few company-level agreements, mainly in firms operating shift systems (generally in 'traditional' labour-intensive industries), in the motor industry (to cope with the seasonality of the market), or for skilled workers who are exempt from fixed working hours rules. Examples of company agreements providing for some form of annualisation include those at SSGP-Vidro Automóvel, Covina, Unicer and Volkswagen Autoeuropa.
Spain	The majority of sectoral and company-level agreements now provide for AH schemes. The main forms are annualised calculation of working time and irregular distribution of working time over a reference period (sometimes requiring the involvement/agreement of workers' representatives).
Sweden	The two most recent major bargaining rounds - in 1998 and 2001 - have resulted in some 20 sectoral agreements (eg in the paper and pulp industry) which deal with annual working time accounts or banks. The sectoral agreements allow for such such schemes to be negotiated at local level, as one of a range of possible flexibility arrangements.
UK	Most collective bargaining occurs at company or lower (site/workplace) level and this is true of agreements on AH schemes. Most such schemes are indeed thought to be based on negotiation or consultation with trade unions. Annualisation is particularly prevalent in the education sector, electricity, gas and water supply (with notable agreements including those at Welsh Water, Scottish Power and Hyder Utilities) and manufacturing (eg Peugeot, Samsung Electronics and ICI).

Source: EIRO comparative study on 'Annualised hours in Europe', August 2003 (TN0308101S).

Effects of the opt-out on workers' health and safety

The link between long working hours and the health and safety of workers is well-established. Many research projects have shown that work-related fatigue is increased by the number of hours worked. Experience shows that fatigue and loss of concentration cannot be avoided after a certain period of time, and that the risk of industrial accidents increases during the final hours of work. A number of studies conclude that a working week exceeding 50 hours may, in the long term, have harmful effects on the health and safety of workers.

An analysis of the health and safety impact of the opt-out in the UK is not feasible owing to the lack of reliable data. Following the 1999 amendment of the Working Time Regulations, the obligations to keep records were reduced to their simplest expression (only the agreement itself is kept) and it is therefore not possible to know who made use of the opt-out, the number of hours worked in excess of the maximum limit and, of course, the consequences in health and safety terms. However, there is no reason to think that the conclusions from research in this field, which show that long working hours have a certain impact on the health and safety of workers, would be contradicted in the case in question.

Other Member States

Originally, only the UK made use of the option of not applying Article 6. However, after the ECJ's October 2000 ruling in the SIMAP case, some Member States saw the opt-out arrangement 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. Consequently, all the Member States which incorporated the opt-out clause in their legislation did so for the health sector alone (except Luxembourg).

It is not yet possible to evaluate how the opt-out clause is being applied in these countries, as too little time has elapsed. At this stage, it is possible only to mention the legislative measures which incorporate the opt-out arrangement.

Definition of working time

Article 2 of the Directive defines working time as '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'. 'Rest period' is defined as 'any period which is not working time'. In accordance with the reasoning expressed in the Directive, there is no interim category: any period can be considered only to be either working time or a rest period, the two concepts being mutually exclusive.

In the two cases mentioned above, the ECJ had to give an opinion on the legal definition, within the meaning of the Directive, of periods spent on call, whether or not the worker is required to be physically present at the workplace. In the SIMAP case, the Spanish court (Tribunal Superior de Justicia de la Comunidad Valenciana), by virtue of Article 234 of the EC Treaty, submitted five requests for a preliminary ruling on the interpretation of Directives 89/391/EEC (the 'framework' health and safety Directive) and 93/104/EC (the working time Directive).

As regards the definition of 'working time', the Spanish court asked whether time spent on call by doctors in primary healthcare teams - on the basis of either being physically present at the health establishment or being contactable - should be considered to be working time or overtime within the meaning of the Directive. The Court replied that 'time spent on call by doctors in primary healthcare teams must be regarded in its entirety as working time and, where appropriate as overtime, within the meaning of Directive 93/104 concerning certain aspects of the organisation of working time, if they are required to be at the health centre. If they must merely be contactable at all times when on call, only time linked to the actual provision of primary healthcare services must be regarded as working time.' The ECJ noted that the three features of the definition of working time were present in the case in question.

In the Jaeger case, the Court was once again required to give an opinion on the definition of time spent on call by doctors when they are required to be physically present in a hospital. Although the underlying facts of the case were fairly similar to those in the SIMAP case, the Court was asked on this occasion to give its views on the question of whether on-call services should be considered in their entirety as working time, even if the party concerned does not in fact perform his or her professional duties but is authorised to sleep during the time concerned. According to the jurisdiction of referral, this question was not asked and, as a result, the Court did not reply to it in the SIMAP judgment.

In the ECJ's view (points 60 and 61 of the Jaeger judgment), the fact that, in the SIMAP judgment, it did not expressly rule on the fact that doctors performing on-call duty where they are required to be present in the hospital can rest or even sleep during the periods when their services are not required was in no way material. Periods of professional inactivity of this kind were an inherent aspect of on-call duty. The Court therefore confirmed that 'Directive 93/104 must be interpreted as meaning that a period of duty spent by a doctor on call ('Bereitschaftsdienst'), where presence in the hospital is required, must be regarded as constituting in its entirety working time for the purposes of that Directive, even though the person concerned is permitted to rest at his place of work during the periods when his services are not required, with the result that that Directive precludes a Member State's legislation which classifies as a rest period an employee's periods of inactivity in the context of such on-call duty,'

Impact of ECJ case law

Prior to the SIMAP judgment, the concept of working time was generally interpreted to mean that periods of inactivity during time spent on call should not be defined as working time. This is why, when they intervened before the ECJ in the SIMAP case, the Commission and the Member States argued that even in cases where the doctor was present within the health centre, periods spent on call would continue not to be regarded as working time as defined in Article 2 of the Directive.

The Court's case law therefore has had a major impact on Member States which did not define time spent on call requiring physical presence at the workplace as being entirely dependent on the concept of working time. Although the impact of the case law cannot be limited to the health sector alone, it is in this sector that the impact is greatest, given that it is relatively common for work (essentially that undertaken by doctors) to be organised in such a way as to include regular periods of on-call duty.

The impact of the ECJ’s case law will be even greater when Directive 2000/34/EC is applied with respect to 'trainee doctors', ie as of 1 August 2004 and, in particular, at the end of the transition period for implementation (five years, which can be extended to eight years at most).

Compliance with the maximum working time of 48 hours per week, including all time spent on call, means that most Member States have to recruit additional doctors to ensure the same level of care. All Member States agree that, even if it were possible, from a budgetary point of view, to recruit the staff required to provide the same level of care, this would be impossible in practice because of the current lack of candidates with the necessary training to take on these jobs.

In order to limit the impact of the ECJ’s case law, particularly while new organisational models have not been put in place or recruitment levels are lower than necessary, it is to be feared that some Member States will have recourse to derogations or exceptions, essentially to the possibility provided in Article 18(1)(b)(i) - ie the opt-out.

Ensuring compatibility between work and family life

The flexibility of working time is generally perceived as being in the interests of employers in particular, often to the detriment of employees. However, greater flexibility in the organisation of working time would meet the growing needs of workers, particularly those with dependent children or elderly relatives, as well as the interests of companies, which need to be able to respond to user and customer demand for extended operating hours or to adapt rapidly to sharp fluctuations in demand.

Measures in support of greater compatibility between the private and professional spheres and equality of opportunity between men and women improve the overall quality of employment by enabling as many people as possible to participate. They also improve productivity by increasing motivation and availability and by opening up greater opportunities for vocational or personal training.

The Commission is firmly of the view that the revision of the working time Directive could be exploited in such a way as to encourage the Member States to take steps to improve the compatibility of work and family life.

Object of the consultation

The Commission asks the addressees of the Communication to express their opinion on the need to revise the current text or introduce other initiatives, not necessarily legislative. Five main issues emerge which need to be addressed:

the reference periods;
the ECJ's interpretation of the concept of working time in the SIMAP and Jaeger cases;
the conditions of application of Article 18 (1)(b)(i) (the opt out);
measures aimed at improving the reconciliation between work and family life; and
whether an interrelated approach to these issues would allow for a balanced solution capable of meeting the criteria set above.

Deadline for consultation and next steps

The Communication is aimed at the European Parliament, the Council, the Economic and Social Committee, the Committee of the Regions and the social partners at Community level. The key aim of the Communication is to solicit the views of these institutions and organisations on the issues discussed in the text.

As regards the European social partners, this Communication constitutes the consultation provided for in Article 138(2) of the Treaty (first phase of the consultation process). They are invited to give their opinion on the need to amend the Directive on the issues identified in part two of the Communication. They will be consulted subsequently in accordance with paragraph 3 of the aforementioned Treaty Article, on the content of any proposal envisaged.

In order to involve interested organisations at national level, the Communication was made available to all interested parties on the website of the Directorate-General for Employment and Social Affairs. Comments had to reach Commission departments no later than 31 March 2004.

The Commission will conduct a detailed examination of the contributions received. Following this examination, the Commission will draw the necessary conclusions, which, of course, it is not possible to anticipate.

Box 1. European Parliament resolution on the organisation of working time (amendment of Directive 93/104/EC)

On 11 February 2004, the European Parliament adopted a report on the organisation of working time (amendment of Directive 93/104/EC) from Alejandro Cercas (by 370 votes for and 116 against, with 21 abstentions). In this resolution, the European Parliament:

Deplores the fact that the Commission has submitted the required assessment report after the seven-year deadline for review laid down in Article 17(4) and Article 18(1)(b)(i) of Directive 93/104/EC and that the report does not set out clear options for resolving the problems identified; calls on the Council to ask the Commission to consider an amended Directive as soon as possible; welcomes the conclusion in the recent Commission Communication that the approved approach should give workers a high level of health and safety protection, make it easier to reconcile work and family life, give firms and Member States flexibility in the way they manage working time and avoid imposing unreasonable constraints on firms, especially SMEs;
Adds that alternatives to legislation should also be considered, given the declared objectives of the Commission's Better Regulation Action Plan;
Insists that a full business impact assessment in the Member States affected should be completed before any changes to the current opt-out arrangements in the Directive are finalised;
Highlights the specific importance of addressing the problems relating to availability and financing in the health sector arising from the Court of Justice's interpretation of the concept of working time in the SIMAP and Jaeger cases; however, regrets that it cannot examine, for each working sector, the effects on the economy and society, without any official comparative studies; notes that the Commission's Communication only mentions some rough indications of possible consequences in a few Member States;
Calls on the Commission to advance the formal process of social partner discussion which has now begun and calls on the Commission to consider positively, when responding to the first stage of the consultation process, the legislative process provided for in Article 139 of the Treaty as a means of facilitating agreement and a possible resolution of the issues raised by the Court's judgments regarding the definition and calculation of 'on-call stand-by' hours at the workplace and the period within which the compensatory rest period must be granted;
Acknowledges the fact that the Commission on different occasions has expressed its concern about the reactions of the Member States to the judgments of the ECJ but deplores the fact that the Commission did not manage to carry out, in the three years after the SIMAP ruling, an in-depth study on the consequences of these judgments for the Member States or to find transitional remedies,
Calls upon the Commission to draw up a study as to what effects derogations on maximum working time (Article 6 of Directive 93/103/EC) have on the health and safety of workers;
Regrets the reluctant attitude of the Commission following the SIMAP ruling, which has led to a lack of clarity regarding the consequences of the ruling in a number of Member States and even, for example in the Netherlands, to government plans to abolish all working time rules above the minimum standards required by European law and international conventions;
Draws attention to the requests it made in its abovementioned resolution, which calls for a thorough review to make the provisions of the Directive clearer and more consistent;
Requests that any initiative in this field be based on the premise that the health and safety of workers must take precedence but should be looked at alongside the reconciliation of family and professional life and any considerations of an economic nature;
Looks to the Commission to refrain from taking any initiatives serving to 'renationalise' the European working time Directive;
Calls for an EU-wide Member State comparison study into the repercussions of working long hours on the family and health and the effect on both sexes;
Stresses that the way in which the working week is regulated in a revised Directive must take due account of the requirements of European firms and their need for flexibility and that a revised Directive must also take due account of this need;
Stresses that the existence of standards and regulatory protection in such sensitive areas is vital for as long as the two sides of industry have no universally binding rules to govern them;
Calls for the revision, with a view to the phasing-out, as soon as possible, of the individual opt-out provided for in Article 18(1)(b)(i); in the meantime, calls on the Commission to identify practical ways of tacking potential or actual abuses of the opt-out provision including seeking views on how best to strengthen the voluntary nature of the opt-out;
Calls on the Member States to await a revised version of the Directive and not to make excessive use of the derogation provided for in Article 18(1)(b)(i) and not to misuse it to cater for the apparent problems caused by the Court of Justice's interpretation of working time for on-call stand-by hours at the workplace in the healthcare and other sectors; suggests that the Member States exchange information about already existing models and schedules that deal with stand-by service without conflicting with the normal rules of the Directive; urges the Member States, together with the social partners in the relevant sectors, seriously to look for alternative solutions within the scope of the Directive, which provides for other flexibility options that do not completely do away with any limitation on working hours and continue to provide for adequate protection; calls, in the meantime, on the Member States and employers to endeavour to ensure that workers subject to the derogation in Article 18(1)(b)(i) are not working excessively long hours and particularly not over prolonged periods;
Calls on the Commission and the Member States to promote an exchange of information about good practice within already existing models, which would highlight the scope for dealing with work-organisation problems resulting from the interpretation of the Court of Justice of working time for on-call stand-by hours at the workplace in the health sector by means of increasing recruitment, introducing new work practices and new patterns of working for different staff groups including, possibly, new ways of delivering health services, changing the number of medical rotas, developing multi-disciplinary teams, making more effective use of information technology and the possible extension of roles for non-medical staff;
Calls on the Commission in the next stage of consultation to bring forward as a priority concrete proposals, within the framework of Directive 93/103/EC, for a long-term and sustainable response to the problems raised by the SIMAP and Jaeger judgments;
Calls on the Commission to produce an additional Communication containing a specific and reasoned statement of its attitude regarding all the provisions of the Directive that may need to be revised, to examine solutions to re-establish in the framework of a revision of the Directive clear obligations on employers properly to measure working time, and to submit its views to Parliament for consultation as soon as possible;
Stresses that women are more likely to suffer negative effects on their health and well-being if they have to take on the double burden of working life and family responsibilities;
Draws attention to the worrying trend of women working two part-time jobs, often with a combined working week that exceeds the legal limit, in order to earn enough money to live;
Emphasises that the culture of long hours in higher professions and managerial jobs is an obstacle to the upward mobility of women and sustains gender segregation in the workplace.

Bargaining and legislation in 2003

Collective bargaining

For an examination of collective bargaining on working time in 2003, see TN0403106F. For a wider review of the situation with regard to the duration of working time in 2003, see TN0403104U.

Legislation

In a number of countries, 2003 saw new or amended legislation on working time, in some cases either implementing the EU working time Directive or dealing with matters referred to in the Directive.

In April 2003, nearly 10 years after its adoption, the working time Directive was finally transposed fully into Italian law when the cabinet definitively approved legislative decree 66/2003 (IT0305305F). The new regulations came into force on 29 April. The decree, as well as implementing the Directive, sets out in a single text the regulations on working time which have accumulated over the years as a result of successive legislation. It regulates normal weekly working time, overtime, daily rest, breaks, weekly rest periods, annual leave, night work and derogations. The trade unions criticised the method and contents of the decree.

Implementation of the Directive, as part of the acquis communautaire, featured in a number of acceding and candidate countries. For example, in Cyprus Law 63(I)/2002 came into force on 1 January 2003, transposing the Directive into national law. In Hungary, an amendment to the Labour Code which came into force in July 2003 implemented the Directive (as well as several others), as did Slovakia's revised Labour Code that also came into force in July (SK0312103F). In, Poland successive amendments of the Labour Code in 2003 (PL0311108F) revised provisions on relevant issues such as overtime, rest breaks and periods, overtime and annual leave. Romania's new Labour Code, which came into force in March, implemented much of the working time Directive (RO0308102N). Legislative amendments made in Latvia obliged employers to record actual working hours and overtime hours, including hours worked on public holidays.

Aside from direct implementation of the working time Directive, other relevant legislative developments in 2003 included the following:

a new law, which came into force in January, regulated working time in the Luxembourg hotels and catering sector, after a 30- year legal vacuum, during which the industry's social partners failed to regulate the matter themselves. The new legislation introduces a statutory 40-hour week in three stages, starting in 2003 (LU0301107F);
in the Netherlands, new legislation on Sunday working entered force in 2003, giving employees the right to refuse to work on Sundays (NL0110102F);
in February 2003, Norway's Act on Workers' Protection and Working Environment (AML) was amended to allow for greater flexibility in relation to the use of overtime. As a result of these changes, the weekly and four-weekly restrictions on overtime work have been abolished, and a more general rule regarding the total number of working hours allowed per week has been introduced (NO0304103F).

A high-profile issue in a number of countries what the adoption of new (mainly deregulatory) legislation on shop opening hours (with effects on collective bargaining in some cases):

under a new Shop Opening Hours Act (Öffnungszeitengesetz) which came into force in August 2003, retailers are still entitled to open their shops for 66 hours per week (as under the old regulations), but within an extended standard framework period of between 05.00 and 21.00 on weekdays and between 05.00 and 18.00 on Saturdays (AT0307201N). Owing to this extension of shop opening hours, the retail sector collective agreement (valid from 1 January 2004) had to be adjusted in terms of more flexible working hours arrangements and (higher) premium payments for evening work;
a new Law on the Extension of Shop Opening Hours on Saturdays (Gesetz zur Verlängerung der Ladenöffnung an Samstagen) adopted in March 2003, extended shop opening times from 16.00 to 20.00 on Saturdays (DE0303203F). The issue of increased remuneration was consequently an issue in bargaining over new regional collective agreements in retail. The settlements concluded provided that employees are entitled to a 20% supplement for hours worked late in the afternoon, granted in the form of a working time 'bonus', thus effectively cutting the average working week (DE0401201N). Whereas in the various western German bargaining areas this supplement will be granted for hours worked from 14.00 or 14.30 to 20.00, eastern German employees and those in Berlin are entitled to the 20% time bonus only for work after 15.00. Companies which open late on only one Saturday per month will not have to pay any bonus. The collective agreements also make provision for employees to be entitled to at least one free Saturday a month; and
in Greece - where the regulation of shop opening hours has long been one of the most complex and contentious issues in retail industrial relations - new legislation was adopted in late 2003 on local prefects's ability to set rules on opening hours, and by the introduction of special provisions to accompany the 2004 Olympic Games in Athens (GR0312102F).

Eurofound recommends citing this publication in the following way.

Eurofound (2004), Working time - developments in EU and national regulation, article.