10 Revision of the Working Time Directive
(25972)
12683/04
COM(04)607
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Draft Directive amending Directive 2003/88/EC concerning certain aspects of the organisation of working time
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| Legal base | Article 137(2) EC; co-decision; QMV
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| Document originated | 22 September 2004
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| Deposited in Parliament | 30 September 2004
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| Department | Trade and Industry
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| Basis of consideration | EM of 18 October 2004
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| Previous Committee Report | None; but see (25248) 5188/04: HC 42-ix (2003-04), para 4 (4 February 2004)
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| To be discussed in Council | 6/7 December 2004
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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Background
10.1 The aim of the Working Time Directive[18]
is to ensure better protection of the health and safety of workers.
It lays down requirements for minimum periods of daily rest,
weekly rest and annual leave and for a maximum average working
week of not more than 48 hours.
10.2 The Directive provides for a review of the derogation
from the reference periods for the calculation of maximum weekly
hours and a review of the derogation enabling Member States the
option of not applying the requirement about maximum hours ("the
opt-out"). Moreover, there have been two rulings by the
European Court of Justice — the SIMAP and Jaeger
judgements — which affect the concept of "working
time". In SIMAP, the Court ruled that the entire time
a doctor spends on call at his place of work is to be considered
working time. In Jaeger, the Court ruled that doctors were
to be considered to be working for the entire period that they
are on call at their place of work, even if they are resting because
their services are not required. Although the effect of the two
judgements would not be confined to the health sector, that is
the sector on which the impact would be greatest.
10.3 At the end of last year, the Commission presented
a Communication which evaluated the derogations from the reference
periods and the opt-out; analysed the impact of the case law;
and initiated consultations on options for a revision of the Directive.
10.4 When we considered the Communication in February,
we recommended it for debate in European Standing Committee C
because of the importance of the subject and because we considered
that the House should have an early opportunity to debate the
document so that the Government could take full account of its
views.[19] The debate
was held on 24 March.
Relevant provisions of the Working Time Directive
10.5 Article 2 defines "working time" as
"any period during which the worker is working, at the employer's
disposal and carrying out his activity or duties, in accordance
with national laws and/or practice"; and defines "rest
period" as "any period which is not working time".
10.6 Article 3 provides that every worker is entitled
to a minimum daily rest period of 11 consecutive hours for each
24-hour period.
10.7 Article 6 requires Member States to take the
action necessary to ensure that the average working time for each
seven-day period, including overtime, does not exceed 48 hours,
although Article 22 gives Member States the option of opting out
of the requirement on certain conditions (see below).
10.8 Article 16 gives Member States discretion to
provide a "reference period" of not more than four months
for the calculation of average weekly hours. But Article 19 provides
that derogations from the four-month reference period may be made
by means of collective agreements or agreements between the two
sides of industry. Such derogations should not result in the
reference period exceeding six months, although Member States
have the option of allowing the agreements to set reference periods
of not more than 12 months "for objective or technical reasons
or reasons concerning the organisation of work".
10.9 Article 22(1) gives Member States the option
of opting-out of the requirement in Article 6 that average weekly
working time should not exceed 48 hours provided that they ensure
that:
- no employer can require an
employee to work, on average, for more than 48 hours a week without
first obtaining the worker's agreement;
- no worker suffers detriment from the employer
for refusing to agree;
- the employer keeps records of all workers who
work for more than the maximum weekly hours and the records are
available to the competent authorities (the authorities may, for
health or safety reasons, prohibit or restrict working hours
in excess of the maximum); and
- the employer provides the competent authorities,
at their request, with information about agreements with workers
who exceed the maximum weekly working hours.
The document
10.10 The document comprises a draft Directive, amending
the Working Time Directive, and an explanatory memorandum by the
Commission.
10.11 The Commission consulted the social partners,
in accordance with Article 138 of the EC Treaty, about the proposals
in the Communication. The Commission says that the social partners
declined to enter negotiations on a European agreement about working
time and asked the Commission to propose a draft amending Directive.
10.12 The Commission then consulted the social partners
about the provisions of such a Directive. The Commission says
that the social partners were divided about what amendments should
be made. The organisation representing employees (the European
Trade Union Confederation — ETUC) argued that the only acceptable
option would be to phase-out, as soon as possible, the provision
in Article 22 of the Directive for the opt-out. But UNICE (the
Union of Industrial and Employers' Confederations of Europe) argued
in favour of retaining Article 22 and of adding provision for
Member States to allow an opt-out by collective agreement. The
CEEP (the European Centre of Enterprises with Public Participation
and Enterprises of General Economic Interest) also favoured retaining
Article 22, while strengthening the conditions in which it applies.
10.13 The Commission reports that the ETUC was not
in favour of extending to 12 months the reference period for the
calculation of average weekly hours because such an extension
would hinder the conclusion of modern working-time agreements.
UNICE and CEEP, however, considered it desirable to allow a general
reference period of a year.
10.14 The Commission also says that, in the light
of the SIMAP and Jaeger judgements, UNICE and CEEP
supported excluding the inactive part of time on call from the
definition of working time. The ETUC, however, considered that
such an amendment would be disproportionate and that something
less far-reaching could be envisaged.
10.15 The Commission maintains that any revision
of the Working Time Directive should satisfy the following criteria:
- it should ensure a high standard
of protection for employees' health and safety:
- it should give companies and Member States greater
flexibility in managing working time;
- it should allow greater compatibility between
work and family life; and
- it should avoid imposing unreasonable constraints
on companies and, in particular, on small and medium-sized enterprises.
10.16 In the Commission's opinion, the amendments
proposed in the draft Directive satisfy these criteria. The main
proposals are as follows.
10.17 Article 2 (definition of working time) would
be amended by the addition of two new definitions:
- "on-call time" —
the period in which the employee has an obligation to be available
at the workplace to carry out, at the employer's request, his
work; and
- "inactive part of on-call time" —
the period in which the employee is on-call but not required to
work.
10.18 A new Article is proposed to provide that the
inactive part of on-call is not to be regarded as working time,
unless the contrary is established in national law or a collective
agreement or an agreement between the two sides of industry.
10.19 Article 16 would be amended to provide that
Member States could extend the reference period for calculating
average weekly hours to 12 months or the duration of the employment
contract, whichever was the shorter.
10.20 Articles 17 and 18 of the Working Time Directive
provide that Member States may, in certain circumstances, derogate
from the Directive's requirements for rest breaks so long as the
employees concerned are given equivalent periods of "compensatory
rest". The Commission proposes amendments to provide that
the compensatory rest must be given within "a reasonable
period, which cannot be longer than seventy-two hours".
10.21 The draft Directive proposes the following
amendments to Article 22 (which enables Member States to opt-out
of the requirement for the maximum working week not to exceed
48 hours):
- the exercise of the opt-out
must be expressly "foreseen" by a collective agreement
or an agreement between the two sides of industry unless there
is no collective agreement in force and no employees' representative
empowered to conclude an agreement;
- the employee's own consent to work more than
48 hours a week would be required and the agreement would be valid
for not more than a year, but could be renewed;
- such an agreement would be invalid if made with
an employee at the time of the signature of his employment contract
or during any probationary period;
- no employee could work for more than 65 hours
in any one week unless a collective agreement provided otherwise;
and
- the employer must keep a record of the actual
hours worked by an employee who has agreed to work for more than
an average of 48 hours a week.
The Government's view
10.22 The Parliamentary Under-Secretary of State
for Employment Relations, Consumers and Postal Services at the
Department of Trade and Industry (Mr Gerry Sutcliffe) tells us
that the Government welcomes the Commission's proposals about
on-call time and (subject to some drafting points) compensatory
rest. The effect of these amendments would be to reinstate what
had generally been understood to be the meaning of the Working
Time Directive before the rulings in the SIMAP and Jaeger
cases.
10.23 The Government also welcomes the proposal for
the extension of the reference period to 12 months. The Minister
hopes that this would enable peaks and troughs of work to be evened
out, reducing the number of employees who need to opt-out.
10.24 The Minister tells us, however, that:
"the Government believes that the individual
opt-out should be retained. While the Government is happy to
see tighter safeguards, it does not find all the Commission's
proposals acceptable. The Government is content for other Member
States to be given the possibility of allowing the opt-out by
collective agreement, but this should be in addition to, not instead
of, the individual opt-out. If workers and their representatives
want to cover the use of the opt-out in collective or [workplace]
agreements they can do [so] already in the UK, but the Government
does not believe it desirable to force anyone to use this route.
"While other Member States have implemented
the opt-out subject to collective or [workplace] agreements —
and the Government fully supports their right to do so —
this would be a new departure for the UK. By custom and practice,
industrial relations issues have usually been dealt with at individual
or local level. The EC Treaty requires 'measures which take account
of diverse forms of national practices, in particular in the field
of contractual relations' [Article 136 of the EC Treaty]. The
Government has been working hard in the UK to persuade employers
and employees to work together cooperatively, and considers that
this kind of provision could push debate away from cooperation
and towards bargains. In addition, the Government's view is that
requiring collective agreements may not be suitable for all situations
outside the UK. There is little evidence (in the Communication
or elsewhere) of how the existing 'collective agreements' derogations
are actually used, and how well they operate in the EU. Before
proposing an extension of the system, the Government believes
that the Commission needs to demonstrate that it works well where
it is used, and is capable of being extended where it is not.
"The Government also believes that problems
exist with some of the proposed conditions attaching to the opt-out.
For example, the Commission does not justify how the proposed
new requirements for record-keeping would assist in protecting
health and safety. Recording working hours in the way proposed
could increase the administrative burden of the Directive as many
organisations do not have the [mechanisms] in place to record
hours. The Government believes that maintaining such records does
not necessarily reflect modern management practices, such as increased
flexible hours and working from home. The UK has a wider range
of working patterns than most other Member States: 26% work part-time
and 22% work flexibly. In Spring 2003, there were 5.5 million
employees who had flexible working arrangements in the UK.
"The Government has concerns over the proposed
absolute 65 hour cap. A weekly limit of this kind does not reflect
the non-traditional working patterns that now exist. Construction
workers on remote site[s] or oil rig workers, for example, who
typically work two weeks of very long hours followed by two weeks
off, represent sectors where workers sometimes need to work more
than 65 hours a week over short periods without adverse effects."
10.25 The Minister tells us that the Commission will
shortly provide a Regulatory Impact Assessment (RIA) of its proposals
and that the Government will then complete its own RIA. He adds
that, in June, the Government published a consultation paper on
working hours and the operation of the opt-out in the United Kingdom;
responses were requested by 22 September.
10.26 Finally, the Minister says that the proposals
"will now undergo a lengthy process of negotiation and are
likely to change".
Conclusion
10.27 We welcome the Commission's efforts to find
workable and acceptable solutions to the difficulties arising
from the SIMAP and Jaeger rulings and to devise
a way forward on the opt-out which strikes a reasonable balance
between the needs of industry and, in particular, of small and
medium-sized enterprises and the protection of employees' health
and safety. We note, however, that the Government has reservations
about some aspects of the proposals and expects the negotiations
to be protracted and the text to change. At this stage, therefore,
we consider that it would be premature to recommend the proposals
for debate in European Standing Committee C.
10.28 We ask the Minister to send us the Commission's
and its own Regulatory Impact Assessments of the draft Directive
and a supplementary Explanatory Memorandum on the responses to
its consultation document. We shall then be grateful if the Minister
will give us oral evidence to enlarge on the Government's reservations
about the proposals. Meanwhile, we shall keep the document under
scrutiny.
18 Council Directive 2003/88/EC concerning certain
aspects of the organisation of working time, OJ No. L 299, 18.11.2003,
p.9. Back
19
See headnote. Back
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