Commission consults again on Working Time Directive review
In December 2010, the European Commission launched the second stage of consultations with EU-level social partners on possible amendments to the Working Time Directive, suggesting either a ‘focused’ review, limited to the issues of on-call time and compensatory rest, or a wider-ranging ‘comprehensive’ review. Consultations began last March, initiated in an attempt to revise the directive so it reflects changes in the organisation of working time over the past 20 years.
The consultation, held under Article 154 of the Treaty on the Functioning of the European Union (TFEU), followed the breakdown in 2009 of talks between the European Parliament and the Council of the European Union over an earlier proposal to amend the directive (EU0906039I).
On 21 December 2010, the Commission moved to the second-stage consultation with EU-level social partners. It had concluded from responses to the first consultation, and from its own examination of the directive’s implementation, that ‘changes to the current working time rules are 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;
- a comprehensive review, dealing with a wider range of matters highlighted by the social partners in their responses to the first consultation.
The focused review would amend the directive in two areas, largely as a result of European Court of Justice (ECJ) rulings.
The ECJ has ruled that on-call time, when the worker is required to be available to the employer at the workplace in order to provide his or her services in case of need, constitutes working time for the purposes of the directive (EU0310202N). The Commission proposes upholding this principle in an amended directive, but allowing derogations, limited to sectors where continuity of service is required (notably in public services such as health care), which would allow periods of on-call time to be counted only partially as hours of work, for the purposes of calculating the worker’s total working time.
This exemption would be subject to maximum weekly limits and the workers concerned would be given appropriate protection. The social partners would be given flexibility to find solutions at local or sectoral level and identify the most appropriate method for counting on-call time.
According to ECJ case law, when workers are forced to miss taking rest periods to which they are entitled under the directive, compensatory rest hours should be taken as soon as possible and, in any event, any missed daily rest should be taken immediately after an extended shift. The Commission states that the directive must therefore be amended to clarify the timing of daily and weekly compensatory rest, with flexibility to cover specific situations, where this is necessary for objective reasons.
The second option is for a wider-ranging review, dealing with other issues in addition to on-call time and compensatory rest. These topics notably include:
- the individual opt-out from the directive’s 48-hour maximum working week;
- greater flexibility in working patterns;
- work–life balance;
- autonomous workers;
- workers with multiple contracts;
- specific sectoral problems;
- paid annual leave.
Specific suggestions from the Commission include:
- not reopening the divisive debate on abolishing the opt-out from the 48-hour week (which is now used by 16 Member States), but instead reducing the need for the opt-out in the long term through proposed amendments to the directive that allow greater flexibility, such as those on on-call time and reference periods for averaging weekly working hours (see below), while improving the protection of workers affected;
- allowing greater flexibility to decide working time arrangements through collective bargaining, and permitting longer reference periods (by agreement or legislation) for averaging weekly hours in some circumstances;
- ensuring that employers inform workers well in advance of any substantial change to their work pattern;
- allowing Member States to set ‘appropriate ceilings’ on the accumulation of annual leave entitlements over successive years by workers on long-term sick leave.
The consultation document asks the social partners for their views on whether a focused or a comprehensive review of the directive is appropriate, and on the Commission’s ideas for amendments. The partners have until 28 February 2011 to respond, and to decide whether they want to open talks over an agreement on amending the directive (under Article 155 of the TFEU).
It they decide to negotiate, the Commission will suspend work and the social partners will have nine months to reach an agreement (this period may be extended by agreement with the Commission). If the partners do not negotiate, the Commission will issue a draft amending the directive, scheduled for the third quarter of 2011.
Mark Carley, Spire Associates