The European Commission has launched a first phase of consultation with the EU-level social partners on a review of the Working Time Directive, following the failure of the Council and the European Parliament to agree on a previous proposal for revision. On this occasion, the Commission is calling for views on a comprehensive review of the directive, to reflect changes to working patterns and practices over the past 20 years.
On 24 March 2010, the European Commission launched the first phase of a consultation of the EU-level social partners on a review of Directive 2003/88/EC concerning certain aspects of the organisation of working time. The consultation, launched under Article 154 of the Treaty on the Functioning of the European Union (TFEU), asks the social partners for their views on the possible direction of action regarding the directive. This move follows the announcement by the Council of Ministers and the European Parliament in April 2009 that they could not reach agreement on a proposal issued by the Commission in 2004 on the directive’s review, following a conciliation process between the two institutions (EU0906039I).
Comprehensive review foreseen
In light of what the European Commission terms ‘fundamental changes’ to working patterns since the Working Time Directive was originally conceived, it 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 European Parliament.
Key trends
The Commission identifies the key trends of the past 20 years as follows:
- a general reduction in total working time – average weekly working hours in the EU have decreased from 39 hours in 1990 to 37.8 hours in 2006;
- a polarisation of working time between groups of workers – part-time workers have increased their share in the workforce from 14% in 1992 to 18.8% in 2009; however, 10% of all employees still work more than 48 hours a week and nearly 7% of all employees work in multiple jobs;
- a progressive de-standardisation of individual working time, with increasing variation of working times throughout the year or the working life, along with more flexible practices in companies.
Areas for consideration
The Commission also notes that issues such as the reconciliation of work and family life – along with the treatment of special situations such as ‘autonomous workers’ and workers with more than one concurrent job – have increased in relevance in recent years. It therefore highlights the following areas for consideration in this comprehensive review of the application of the Working Time Directive:
- working hours – although working hours are falling, on average, the Commission notes that some groups of workers work longer hours. It also draws attention to the extension of the 48-hour week, particularly in the case of the individual opt-out, which is being used by five Member States across the whole economy and by a further 10 Member States in specific sectors of economic activity. The Commission notes that while the argument for longer working hours rests on workers wanting to earn extra pay and aid career progress, there are also health and safety considerations as well as those linked to work-life balance;
- on-call working – this issue has been the subject of much debate, since the European Court of Justice (ECJ) judgements on the subject (for example, Case C-14/04, as well as the SIMAP (C-303/98) and the Jaeger (C-151/02) cases (EU0310202N)). On-call time is particularly common in 24-hour healthcare services and emergency services. However, levels of activity during on-call working vary, with some workers being very active, while others are hardly called upon to work. It is often argued that all on-call time where the worker is required to be at the workplace should be considered as working time. However, it has also been argued that counting on-call periods as working time, while setting a 48-hour limit, can have damaging consequences for services that need flexibility in order to function on a 24-hour basis;
- flexibility in averaging out weekly working time – the directive already allows for some working time flexibility; accordingly, working time may be averaged out over a reference period of four months, which can be extended up to six months in certain activities or up to 12 months in any activity by collective agreement. However, there have been calls for more flexibility, enabling national law to extend the reference period to 12 months;
- flexibility in minimum daily and weekly rest – the Working Time Directive currently allows some or all of minimum rest periods to be delayed, subject to the condition that all missed minimum rest hours must be fully compensated afterwards. There is a debate, however, over the degree of flexibility regarding when the compensatory rest should be taken.
Questions to social partners
The Commission addresses seven specific questions to the social partners, covering the following issues:
- their long-term vision for the organisation of working time;
- the impact that changes in working patterns and practices have had on the directive’s application;
- their experience of the functioning of the directive;
- their views on the Commission’s analysis of working time, set out in its consultation paper;
- whether the Commission should amend the Working Time Directive;
- whether any non-legal action at EU level is required;
- whether they would consider negotiating on any of the issues contained in this consultation.
At this stage, the Commission is looking for views on whether action is needed at EU level, and on the scope of any action. After examining the views submitted, the Commission will decide whether EU action is advisable. If the Commission decides that it is, it will launch a second-phase consultation.
Commentary
This is the latest development in the long-running saga regarding the revision of the Working Time Directive (see, for example, EU0812019I, EU0807049I, EU0802019I, EU0612019I, EU0402203F). The Commission’s previous attempt to revise the directive foundered due to a lack of agreement between the Council and the Parliament on key issues such as an end date for the opt-out from the 48-hour week. In this new attempt at revision, the Commission is seeking a broader approach that it hopes will reflect the significant changes that have taken place in the organisation of working time over the past 20 years.
The European Trade Union Confederation (ETUC) is in favour of substantial revision of the directive. In a press release issued in response to the consultation, ETUC states that it is ‘expecting proposals from the European Commission that stimulate modern, sustainable and negotiated solutions, taking into account the needs of businesses and workers in a balanced way’.
The European employer organisation BusinessEurope has in the past indicated that it is in favour of maintaining the opt-out from the 48-hour week. However, it wants changes in the directive that supersede the ECJ interpretation of on-call time, which it views as costly for business and public service.
Andrea Broughton, Institute for Employment Studies (IES)