Commission proposes amendments to working time Directive
In September 2004, the European Commission issued a proposal to amend the EU working time Directive, focusing on the 'opt-out' from the maximum average working week, the treatment of on-call working and reference periods for the calculation of maximum average working time.
On 22 September 2004, the European Commission issued a proposal aimed at revising the EU Directive concerning certain aspects of the organisation of working time (, originally adopted in 1993 and now consolidated in Directive 2003/88/EC). The move followed two rounds of consultation of the EU-level social partners, in January (EU0402203F) and May 2004 (EU0406203F). Although the Commission had urged the social partners to try to negotiate an EU-level agreement on revising key areas of the Directive, they declined to do so and asked the Commission to propose a Directive instead. The Commission has duly issued a short five-Article proposal for a Directive amending the existing working time Directive.
Key areas of revision
The main changes proposed by the Commission are summarised below.
Definition of working time and on-call working
There are no changes proposed to the Directive's current definitions of working time and rest period. However, the draft proposes two new definitions:
- 'on-call time', defined as a 'period during which the worker has the obligation to be available at the workplace in order to intervene, at the employer’s request, to carry out his activity or duties'; and
- 'inactive part of on-call time', which is a period during which the worker is on call within the meaning of on-call working as defined above, but 'not required by his employer to carry out his activity or duties'.
These new definitions of on-call working are a response to recent European Court of Justice (ECJ) rulings on the subject of on-call working (EU0310202N). These rulings essentially clarified that time spent on-call should be regarded as working time if a worker is required to be at the place of work, and even if a bed is provided for rest purposes.
The Commission feels that the Directive as it stands contains two mutually exclusive definitions - 'working time' and 'rest period', with no intermediate or combined categories to cater for situations such as on-call working. It therefore wants to introduce a concept into the Directive that is not strictly speaking a third category of time, but a mixed category, incorporating the two concepts of working time and of rest period. The inactive part of on-call time would not be regarded as working time, unless national legislation or collective agreements decide otherwise. However, the period during which workers are required to carry out their activity or duties during on-call time would be regarded as working time.
The proposal retains the Directive's present standard four-month reference period for averaging out working time. However, it would allow Member States to extend this period up to one year by law or regulation, for objective or technical reasons or reasons concerning the organisation of work. This would be subject to consultation of the social partners concerned, and Member States would have to make 'every effort ... to encourage all relevant forms of social dialogue, including negotiation if the parties so wish'.
However, where the duration of a worker's employment contract is less than one year, the reference period could not be longer than the duration of the employment contract.
The present Directive states that compensatory rest must be provided for where derogations (permitted under the Directive) are made from the principles of daily and weekly rest (11 hours per 24-hour period and 24 hours plus the 11 hours of daily rest during each seven-day period). The new proposal aims to clarify that these periods of compensatory rest must be granted within a reasonable time and, in all cases, within a time limit not exceeding 72 hours for daily rest. The current Directive does not specify when the compensatory rest should be awarded and allows it to be waived in certain circumstances. The ECJ rulings referred to above interpreted the Directive as meaning that compensatory leave has to be taken immediately.
Opt-out from maximum average working week
The proposal states that if the maximum 48-hour average working week is not to apply (ie if the 'opt-out' permitted by the Directive is to be used), this must be authorised by a collective agreement or an agreement between the two sides of industry at national or regional level or by means of collective agreements or agreements concluded between the two sides of industry at the appropriate level.
However, this condition would not apply if there is no collective agreement present and there is no collective representation of workers within the undertaking that is empowered to conclude a collective agreement or an agreement between the two sides of industry: 'In such cases, the individual worker’s consent, in accordance with the established conditions, is sufficient'.
Even if an opt-out is authorised by a collective agreement, the individual worker would have to give their consent. The conditions surrounding consent would also be tightened up:
- consent would have to be given in writing;
- consent could not be given at the beginning of the employment relationship or during any probation period;
- the validity of an opt-out agreement would be limited to one year, although it would be renewable;
- no worker should suffer any detriment because they are not willing to give agreement to work beyond an average of 48 hours a week;
- an absolute maximum limit of 65 weekly working hours would be fixed, unless provided otherwise by collective agreement or agreement between the two sides of industry;
- the employer would have to keep up-to-date records of all workers who carry out such work and of the number of hours actually worked;
- these records would be placed at the disposal of the competent authorities, which could, for health and safety reasons, prohibit or restrict the possibility of exceeding the maximum weekly working time; and
- the employer should provide the competent authorities at their request with information on cases in which agreement to opt out of the maximum 48-hour average working week has been given, as well as information on the number of hours actually worked by those concerned.
Five years after a revised Directive comes into force, the Commission would submit a report on the application of its provisions and in particular the workings of the 48-hour opt-out. The Commission would then propose any appropriate amendments 'including, if necessary, a phasing out' of the opt-out.
The European Trade Union Confederation (ETUC) has, in a detailed press statement, completely rejected the Commission's draft amending Directife, believing it to be out of proportion and to put the health and safety of workers in danger. John Monks, the ETUC general secretary, stated: 'I am very disappointed in the Commission. It has largely caved in to pressure from certain Member States and employers’ lobbies on key issues like making the individual opt-out more widely available, giving employers a unilateral right to organise working time over 12 months, and practically ending protection for on-call workers. Employers’ lobbies are complaining about new limitations on the individual opt-out, but that is a smokescreen. The fact is that individuals without union help will be under huge pressure to work longer.'
Philippe de Buck, the secretary general of the Union of Industrial and Employers’ Confederations of Europe (UNICE) has stated that the Commission’s proposal falls short of meeting UNICE’s demands and maintains that: 'The text is unnecessarily complicated and includes bureaucratic provisions for record-keeping which will hit SMEs in particular.' UNICE also feels that the revision has not gone far enough and would like to see more flexibility, stating that any moves towards cutting flexibility or reducing working time should be avoided.
Trade union and employer representatives in the UK, the EU Member State that makes most widespread use of the opt-out from the maximum average working week, have also expressed criticism of the Commission proposal (UK0410103N).
The proposed revision of the working time Directive was discussed by the Employment and Social Affairs Council of Ministers on 4 October (EU0410204F) and the current Dutch Presidency of the Council has stated that it hopes to reach political agreement within the Council by the end of 2004. The draft is subject to the co-decision procedure, meaning that final agreement on its content must be reached between the European Parliament (EP) and the Council. Although the Commission believes that its proposal is an acceptable compromise between the differing views of employers and unions, it would seem that no-one is especially satisfied with it.
It will be interesting to see what happens to the text during the coming months - it is likely that the EP will make amendments, considering that it has already recommended a complete phasing out of the controversial individual opt-out clause (EU0402203F). (Andrea Broughton, IRS)