Social partners launch review of Working Time Directive

On 14 November 2011, the EU-level social partners agreed to start negotiations to revise the Working Time Directive. This follows the Commission’s second stage of social partner consultation on this issue, launched in December 2010. The key issues under discussion by social partners representing Europe’s employers and trade unions include on-call working, the opt-out clause for the 48-hour week, and interpretations of European Court of Justice’s rulings on the Directive.

Background

The European Commission’s first consultation of the social partners was launched in March 2010 (EU1004011I). It was held under Article 154 of the Treaty on the Functioning of the European Union (TFEU) (1.41Mb PDF), and followed the breakdown in 2009 of talks between the European Parliament and the Council of the European Union over an earlier proposal to amend Directive 2003/88/EC, the Working Time Directive (EU0906039I).

In accordance with the TFEU, this first consultation was followed on 21 December 2010 by a second-stage consultation with EU-level social partners (EU1101021I).

Following these two consultation exercises, the social partners submitted a joint letter to the Commission on 14 November 2011, in which they stated their intention to negotiate on a revision of the Directive.

The partners involved are, on behalf of the employers, BusinessEurope, the European Association of Craft, Small and Medium-sized Enterprises (UEAPME) and the European Centre for Employers and Enterprises providing Public services (CEEP), and for the trade unions, the European Trade Union Confederation (ETUC).

Positions of the social partners

BusinessEurope

BusinessEurope issued a policy briefing (142Kb MSWord) on the Working Time Directive on 2 November 2011, in which it sets out its key priorities:

  • on-call work should not be considered as working time;
  • possibilities for individual workers to opt out of the maximum working time provisions of the Directive must be preserved;
  • only a ‘pragmatic and realistic’ approach to the revision of the Directive, focusing on the legal problems raised by ECJ judgments, will enable an agreement to be reached.

BusinessEurope maintains that

flexibility is crucial for companies to be able to organise working time according to the nature of their activity, the production cycle and customer demands. They also need to adapt to workers’ individual needs. Rules at EU level should not hamper flexibility and should avoid placing an obstacle in the way of economic growth and job creation.

It is particularly concerned about the implications of the Simap (C-303/98) and Jaeger (C-151/02) cases, in which the ECJ ruled that on-call time constitutes working time for the purposes of the Directive (EU0310202N).

BusinessEurope believes that the opt-out from the maximum 48-hour working week must be maintained permanently, and that individual workers should have the opportunity to work more than 48 hours a week, through the opt-out, if they wish to do so.

UEAPME

UEAPME issued a reply (107Kb PDF) to the Commission’s second consultation in March 2011, in which it states that it considers it necessary to combine parts of the two options proposed by the Commission, requiring a focused review or a comprehensive review, and that the following issues should be addressed:

  • on-call time and compensatory rest;
  • paid annual leave;
  • greater flexibility through further extension of the reference period.

It also states that any revision should aim to avoid adding further complexity, and should resolve the current legal uncertainty and problems created by the ECJ’s judgments. In particular, it notes that solutions should be found that ‘also serve as an example of better regulation based on simplified rules that apply the ‘“Think Small First” principle with the aim of avoiding unnecessary burdens for small enterprises’.

CEEP

In its response to the Commission’s second consultation, CEEP states that it is pleased that the consultation document recognises the challenges and needs of public employers in the delivery of high quality services around the clock. It agrees that the Directive needs to be more responsive to the needs of public employers and that ‘ECJ rulings have interpreted the Directive in ways which have created legal uncertainties in its implementation’.

CEEP argues that public services have specific needs when it comes to working time. For example, they have to be planned around the needs of the users (the public) who have to have access to essential services at all times. CEEP believes that the necessary flexibility can best be achieved by the social partners in a negotiated agreement: ‘Social partners are close to the issues and understand the practical impact on frontline services.’

ETUC

The ETUC’s position on the revision of the Working Time Directive is set out in a resolution (516Kb PDF) adopted in March 2011 in response to the Commission’s second consultation exercise. Overall, the ETUC notes that it has ‘carefully built up its position concerning the Working Time Directive over the last decade, taking full account of the wealth of evidence that justifies the need to limit working time’. Its priorities are that the Commission should:

  • end the opt-out from the 48-hour limit on weekly working time;
  • keep the current reference periods for calculating average working time in place;
  • codify ECJ jurisprudence on on-call time in the workplace;
  • codify for all workers that the Directive has to apply per worker.

The ETUC states that ‘maintaining the opt-out, extending the reference periods and weakening the position on on-call time and compensatory rest would contradict health and safety principles’. Bearing this in mind, the ETUC’s Resolution states that its objectives in the negotiations would therefore be:

  • to have a comprehensive revision of the Directive;
  • to end or phase out the individual opt-out ‘in the near future’;
  • to maintain the status quo on reference periods;
  • to comply with ECJ judgments on on-call working and compensatory rest.

Commentary

These talks will take place in accordance with Article 155 of the TFEU, under which the social partners will have nine months in which to reach an agreement. The first meeting was scheduled for 8 December.

Given the diverging views of the social partners on the core issues of the opt-out, on-call working, and the interpretation of ECJ judgments, it will be interesting to see whether the negotiations can succeed in finding a solution that satisfies all parties.

Andrea Broughton, Institute for Employment Studies

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