The Working Time Directive (Directive 2003/88/EC of 4 November 2003) defines working time as ‘any period during which the worker is working, at the employer's disposal and carrying out his activities or duties, in accordance with national laws and/or practice’ (Article 2(1)). Rest periods are defined as ‘any period which is not working time’. The Directive does not allow for any interim category.
Working time is one of the most important areas of employment where the EU has intervened through legislation to improve employment conditions and the health and safety of workers. The Directive lays down provisions for a maximum 48-hour working week (including overtime), rest periods and breaks, and a minimum of four weeks’ paid leave per year, to protect workers from adverse health and safety risks. It applies to all sectors of activity, both public and private. A number of areas, such as air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and doctors in training, which were exempt from the original 1993 Directive, were brought within its scope in an amendment agreed in 2000. The main provisions of the working time Directive are:
- a maximum average working week of 48 hours, including overtime (calculated over a four-month reference period);
- a limit of eight working hours, on average, per 24 hours for night workers – defined as a person who normally works at least three hours during night time;
- a rest break after six consecutive hours’ work;
- rest periods of at least 11 hours consecutive hours per 24-hour period and 35 consecutive hours per seven-day period;
- a minimum of four weeks’ paid annual leave which needs to be taken during the leave year stipulated, and cannot be paid in lieu except where the worker’s employment is terminated, or in the case of a short-term casual worker, where it may be translated into pay.
The Directive, therefore, guarantees that all workers do not have to work excessive hours or excessively at night and are entitled to adequate rest and holidays. These principles apply to all workers (not just employees) and require employers to keep records to show that the provisions of the Directive are being complied with. As the Directive applies to all ‘workers’, this covers everyone except for those who are genuinely self-employed. The most important exception applies to workers on ‘unmeasured time’, such as those in managerial and professional roles, which allows them to determine what hours they work and when. These workers are subject to the 48-hour working week limit but only in respect of time that they are contractually required to work. Any additional hours they may choose to work remain unmeasured time and fall outside the regulations.
The Directive also contains an opt-out clause, which permits Member States not to apply the maximum 48-hour weekly working limit, if the individual worker voluntarily agrees to this.
Derogations from the working time provisions of the Directive
The working time Directive also defines a range of types of worker and circumstances whereby the employer can vary or waive some of its key provisions.
There are a number of categories of workers who are excluded from the directive:
- managing executives or other persons with autonomous decision-making powers (see above);
- family workers;
- workers officiating at religious ceremonies in churches and religious communities.
In the case of other activities, Member States may derogate ‘by means of laws, regulations or administrative provisions’, but, equally, derogation may occur, without the need for Member State authorisation, ‘by means of collective agreements’. However, these cases are subject to provision of ‘equivalent periods of compensatory rest or... appropriate protection’ (Article 17(2)).
The provisions relating to reference periods, night working and weekly and daily rest periods (with compensatory rest to be provided in lieu) contain flexibility in order to accommodate the anomalous working patterns of a number of categories of workers, including:
- workers whose place of work and place of residence are distant from one another, including offshore work, or where their different places of work are distant from one another;
- workers engaged in security and surveillance activities;
- workers involved in activities which require continuity of service or production (e.g. hospitals, residential institutions, gas, water and electricity production, industries in which work cannot be interrupted on technical grounds, and research and development activities);
- workers engaged in areas where there is ‘a foreseeable surge of activity’;
- in cases of accident or the imminent risk of an accident.
Finally, in the case of the requirement for 11 hours minimum daily rest (Article 3) and 24 hours minimum weekly rest (Article 5) – but not in the case of the requirement of daily rest breaks (Article 4) – certain derogations are possible (Article 17(4)):
- (a) in the case of shift work activities, each time the employee changes shift and cannot take daily and/or weekly rest periods between the end of one shift and the start of the next one;
- (b) in the case of activities involving periods of work split up over the day, particularly those of cleaning staff.
Proposals to amend the directive
The original 1993 Directive included an obligation on the European Commission to review its provisions in relation to the opt-out and the reference period for calculating average working time. Following the failure of the social partners to agree to initiate the social dialogue process on the Directive, the European Commission issued a proposal in 2004 for amendment of the Directive in relation to three issues: the opt-out; the reference period; and the treatment of on-call working time.
The Commission’s proposals in relation to these three issues were opposed by the European Parliament, although by June 2008 it appeared that a compromise could be reached among the Member States. However, while a common position was reached with regard to the reference period – the four-month period for calculating average working time – no agreement was reached on the other issues of the opt-out and on the definition of on-call time. In relation to the opt-out, the differences related to the period of any future opt-out and whether it should be limited. The Council proposal retained this option without any end date, the position of the Parliament was for a phasing out.
A major area of difficulty in relation to the definition of working time lies in the definition of ‘on-call’ time, where the worker has a contractual obligation to be available for work, but may not actually work. In relation to on-call time, the Commission had proposed a new differentiation between active and inactive parts of on-call time, whereas the Parliament favoured any period of on-call time, including inactive time, spent on the employer’s premises being counted as working time. The failure to reach agreement resulted in the matter being transmitted to a Conciliation Committee in 2009. In April 2009, the Committee reported its failure to find a compromise, the first time that no agreement had been able to be reached at the conciliation stage.
In March 2010, the Commission began again by issuing a first-stage consultation document to the EU-level social partners, asking them for their views on a review of the Directive. In the light of fundamental changes to working patterns since the Directive was originally conceived, the Commission proposes to undertake a comprehensive review of the Directive rather than just focusing on the issues that were deemed to be problematic between the Council and the Parliament. Issues that it wished to address include: working hours and the opt-out; on-call working; flexibility in averaging out weekly working time; and flexibility in minimum daily and weekly rest periods.
Following submissions from the social partners, the Commission issued a second-stage consultation document in December 2010. Concluding that changes to working time rules were ‘urgently needed’, the second-stage consultation document asks for the social partners’ views on two options for revision of the Directive:
- a focused review, dealing only with the issues of on-call time and compensatory rest; and
- a comprehensive review, dealing with a wider range of matters highlighted by the social partners in their responses to the first consultation.
In November 2011, the EU-level social partners indicated that they would enter into talks to revise the Directive. Under the process provided for by Article 155 of the Treaty on the Functioning of the European Union (TFEU), they have nine months in which to negotiate an agreement.