- Working Time
Introduction
The 1993 Directive
on certain aspects of the organisation of Working Time aims to ensure better
levels of health and safety protection for workers. Its main provisions include:
The text of the Directive required the Commission, by November 2003, to review the opt-out provision and the use of derogations from the four months reference period for the calculation of working time. Since the implementation of the Directive by Members States in 1996, there has been some important case law by the European Court of Justice regarding the definition of working time in the context of on-call working. The rulings in the 2000 SIMAP case, and more recently the Jaeger case (2003) essentially meant that on-call working should be considered as working time if an employee is required to be on the employers’ premises, even if he/she is able to sleep for all or some of this time. Case law also provides that compensatory rest is to be taken immediately. These judgements are likely to have a significant impact on public sector employers.
The Review of the 1993 Directive
Because of the problems caused by the SIMAP and Jaeger judgements, CEEP UK, together with a number of its partner organisations in other Member States therefore drafted a letter on behalf of CEEP to Commissioner Anna Diamontopolou in 2003, highlighting public sector employers’ concerns regarding what should be considered as a re-interpretation of the concept of working time, and as a result, the original intentions of the Directive.
First stage Commission consultation
On 5 January 2004, the European Commission issued a Communication on the re-examination of the 1993 EU Working Time Directive (93/104/EC). The Communication also acted as the first stage of consultations with the European social partners. This Communication had two aims:
In the document, the Commission requested the input of the social partners (and other interested actors) on the following issues by 31 March 2004:
CEEP’s response to this first stage consultation highlighted members’ concerns about the perceived re-interpretation of the concept of working time as a result of SIMAP and Jaeger. It highlights clearly the difficulties caused for public sector employers responsible for the 24-hour provision of services and the detrimental impact for society as a whole. CEEP supported a global extension of the reference periods to 12 months, but rejected the abolition of the opt-out. CREATE LINK TO FULL TEXT OF OPINION
The private sector employers represented by UNICE also called for the opt-out to be maintained, while the trade unions called for its immediate abolition.
Second stage Commission consultation
The Commission issued its second stage consultation of the
European social partners on 19 May 2004. The first part of the document summarised the responses received to the first
stage consultation, including CEEP’s urgent call to amend the Directive to
include the principle of “inactive time” in order to address the severe
problems facing public sector employers as a result of the SIMAP and Jaeger
judgements.
The Commission called
on the social partners to play their role in bringing the Directive up to date.
Should the social partners not agree to initiate negotiations under Article
139, Communication envisaged the following amendments to the Directive:
·
Introduce the concept
of “inactive part of on-call time” and clarifications regarding the
arrangements for compensatory rest
·
Regarding the
opt-out, the following options are considered (or combinations of these
options)
a) tighten the conditions for the application of the individual
opt-out to prevent abuses
b) allow derogations from maximum working hours only by
collective agreement
c) revise the opt-out provisions with a view towards
phasing them out
Other proposals
included an extension of the reference period for the purposes of calculating
the maximum working week (the full text of the second stage consultation can be
found on http://europa.eu.int/comm/employment_social/labour_law/docs/wtd_en.pdf.
UNICE indicated early on that it would not be willing to negotiate on this issue. ETUC’s position was far removed from any solution which would be acceptable to employers (the European trade union’s response to the second stage consultation can be found on www.etuc.org/en/decisions/ecenglish/Socpolicy/Dimas-WorkingTime2-Submission-annex-gb.cfm). In light of the positions put forward by the trade unions and the private sector employers’ and both organisations’ refusal to negotiate, CEEP, in its response to the Commission regretted that negotiations would not be possible and called upon the Commission to come forward with legislative proposals as a matter of urgency. CEEP re-iterated its support for the introduction the concept of “inactive time” to be defined at national level to address the difficulties created by the SIMAP and Jaeger judgements. Regarding the opt-out, CEEP supported a tightening up of provision and opposed the other options presented by the Commission. A clarification regarding the provisions on compensatory rest were also called for. The full text of CEEP’s response can be found on http://www.ceep.org/en/documents/04soc46-1e-working%20time.doc.
Commission proposal for the revision of the Working Time Directive
On 22 September 2004, the European Commission issued its proposals for the revision of the Working Time Directive. In line with CEEP’s proposals, the text calls for the introduction of a new concept of “inactive time” which would not be considered to be working time. It also provides for a general extension of the reference periods to 12 months and for compensatory rest to be taken within a reasonable timeframe (rather than immediately). With regards to the opt-out, the Commission proposal seeks to restrict the use of the individual opt out to situations where there is no collective agreement and no structure for employee representation. It also provides for further administrative provisions to be respected in cases where the individual opt out is used. For the full text of the proposal see http://www.europa.eu.int/comm/employment_social/news/2004/sep/working_time_directive_proposal_en.pdf.
While CEEP expressed itself as satisfied with the proposed revisions regarding the concept of inactive time, compensatory rest and the revised reference period, it raised concerns regarding the abolition of the opt out. In its response to Commission proposals, it supported measures to tighten up on abuses of the out-out, but rejected the restriction of the use of individual opt out. The full text of the CEEP response can be found on http://www.ceep.org/en/documents/opinions/2004/04avi10EN-Temps%20de%20travail.doc.
The Social Affairs Council in December 2004 was unable to reach agreement on the revision of the Working Time Directive. The European Parliament has in the past expressed itself in favour of the abolition of the opt-out, but is generally more sympathetic to finding a solution to the problems of on-call working. Representatives of CEEP (including UK representatives) have been able to meet with the Rapporteur of the European Parliament for this dossier and with other MEPs on a number of occasions and participated in the hearing organised in the Parliament on this issue in January. CEEP continues lobby in favour of its proposals and a swift resolution regarding the revision of this Directive which is absolutely crucial to public sector employers.
On 7 March 2005, the rapporteur of the European Parliament’s Employment and Social Affairs Committee, Alejandro Cercas, issued his proposals for the revision of the European Working Time Directive, based on the proposals made by the European Commission on 22 September 2004.
The rapporteur’s report essentially makes the following proposals:
· The entire period of on-call time, including the inactive part, should be regarded as working time unless law or collective agreement stipulate that that inactive on-call periods can be counted in a specific manner for the purpose of calculating the average maximum weekly working time.
· The individual opt-out is to be abolished from 2010.
· Member States should take measures to encourage employers to take account of the needs of workers when organising working patterns in order to allow individuals to reconcile work and family life. Workers should have the right to request changes to their hours and patterns of work and employers should have the obligation to consider such requests fairly.
· Compensatory rest is to be taken immediately unless otherwise stipulated in collective agreements or social dialogue.
· Member states shall be allowed to extend reference periods to 12 months subject to compliance with general health and safety provisions and provided that appropriate consultation of the social partners has taken place. In cases where reference periods are to exceed 4 months, Member States are to put in place measures to ensure that employers inform and consult workers and their representatives; employers conduct a written risk assessment and keep written records of working time patterns; working time provisions should not prevent workers from reconciling work and family life.
· The Directive is to be reviewed every 5 years.
The full text of the EP’s draft report can be found on http://www.europarl.eu.int/meetdocs/2004_2009/documents/PR/555/555686/555686en.pdf
Reacting to the draft report by Mr Cercas, CEEP has issued a briefing to MEPs highlighting public sector employers’ opposition to the rapporteur’s stance, particularly regarding the inactive part of working time, compensatory rest and the opt out (View the MEP’s Briefing document).
The Employment and Social Affairs Committee of the European Parliament is due to discuss this draft at its meeting on 15 March, with revisions requested by 16 March. The document will then be voted on in Committee either on 31 March or 20 April and in full plenary either in the second week of April or the second week of May (depending on when the decision is taken in Committee).
The revision of the Directive will again be discussed by ministers in the Social and Employment Affairs Council on 3 June 2005.