Working time and collective agreements
Council Directive 93/104/EEC of 23 November 1993 concerning certain aspects of the organisation of working time (as amended by Directive 2000/34/EC of 22 June 2000; integrated text in Directive 2003/88/EC of 4 November 2003), aimed to outline basic procedural conditions for the regulation of working time by collective agreements. Introducing its first proposal for a directive on working time, the Commission explained that (Explanatory Memorandum, page 3): ‘issues mentioned in the action programme in the field of the adaptation of working time should be left to both sides of industry and/or national legislation. In addition these matters should be dealt with in depth within the framework of the dialogue between both sides of industry at Community level….’
In particular, the Commission emphasised that, ‘the question of systematic overtime is a subject best dealt with by the two sides of industry and by national provisions’. The role of working time in achieving flexibility of capacity utilisation was seen to be due to the social partners: ‘In many cases legislation, but above all the conclusion of a large number of collective agreements, supported the trend towards more flexible use of productive equipment....’
The final text of the directive also included a large number of new provisions, which made collective bargaining an element in the setting of EC standards on working time. The role of collective bargaining in determining some of the EU standards on working time allowed for derogation to prescribed standards. For example, derogation by collective agreements or agreements between the two sides of industry is permitted from Article 3, 4, 5, 8 and 16 for certain other activities, subject to equivalent compensatory periods (Articles 17(2) of Directive 2003/88/EC), and from Articles 3 and 5 in the case of shift work activities or others involving split periods of work. The most complex provision allowing for derogation is Article 18 (Directive 2003/88/EC) which provides for derogation by (1) national or regional agreements, or (2) lower level agreements in conformity with rules laid down by national or regional agreements. This gives primacy to national or regional levels of collective agreements. Other levels may only derogate in conformity with these.
The autonomy of this bargaining is limited by the provision that Member States ‘may lay down rules for the application of this paragraph by the two sides of industry’. It is not clear how interventionist such rules may be. Rules simply prohibiting derogations by the two sides of industry are unlikely to be permitted. The question is how far rules regulating the actors entitled to bargain (representativeness), the process of bargaining (rules on strikes), or the outcomes (the legal effect of agreements) can impinge on the autonomy of the two sides of industry without violating the directive’s clear intention that the two sides of industry be able to agree on derogations by means of collective agreements.
Member States are not obliged to lay down such rules. In addition, where a statutory system does not assure national or regional agreements on working time, or there is another legal framework specifically for working time, Member States may allow derogations by agreements ‘at the appropriate collective level.’ In any event, all derogations must allow for equivalent compensating rest periods.
In a significant qualitative leap, the directive also allowed for collective agreements to go beyond derogation and fix or define relevant standards, the most striking example being that of rest breaks during working hours (Article 4). Again, the provisions of Article 4 may be derogated from by collective agreements under the general derogation provisions of Articles 17(2) and 18. The effect of such derogation is rendered more problematic by the fact that the standard being derogated from by collective agreements may also have been established by collective agreements. This raises complex questions of the relations between different levels of collective agreements. The law governing these questions is not homogeneous across the Community. National labour laws, which purport to structure collective agreements in an articulated hierarchy, may come into conflict with the EC provisions authorising derogation.