17 Revision of the Working Time Directive |
Draft Directive amending Directive 2003/88/EC concerning certain aspects of the organisation of working time
Revised draft Directive amending Directive 2003/88/EC
|Legal base||Article 137(2) EC; co-decision; QMV
|Document originated||(b) 31 May 2005
|Deposited in Parliament||(b) 6 June 2005
|Department||Trade and Industry
|Basis of consideration||(a) SEM of 17 May 2005 |
(b) EM of 21June 2005
|Previous Committee Report||(a) HC 42-xxxiv (2003-04), para 10 (27 October 2004)
|To be discussed in Council||(b) No date set
|Committee's assessment||Politically important
|Committee's decision||(a) Cleared|
(b) Not cleared; information on progress requested
Section 1.127 17.1 The aim of the Working Time Directive
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. There is, however, provision for
Member States to opt out of the requirement about the maximum
working week subject to specified conditions. The UK has made
more extensive use of the opt-out than other Member States.
Section 1.128 17.2 There have been two rulings by the European
Court of Justice the SiMAP and Jaeger judgments
which affect the concept of "working time".
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 not only 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, but also that "compensatory rest"
for missed rest breaks must be taken as soon as the person finishes
the on call period. The effect of the two judgments is not confined
to the health sector, but affects hospitals most acutely.
Section 1.129 17.3 At the end of 2003, the Commission presented
a Communication which evaluated the operation of the opt-out,
analysed the impact of the case law, and initiated consultations
on options for a revision of the Directive. On the recommendation
of the previous Committee, the Communication was debated in European
Standing Committee C.
The debate was held on 24 March 2004.
Section 1.130 17.4 In September 2004, the Commission proposed
a draft Directive to amend the definition of on-call time with
the aim of overcoming the difficulties caused by the SiMAP
and Jaeger judgments; it also proposed amendments to the
conditions for the use of the opt-out.
The latter amendments proposed that:
exercise of the opt-out should 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;
employee's own consent to work more than 48 hours a week should
be required and the agreement should be valid for not more than
a year, but could be renewed;
agreements should be invalid if made with employees at the time
of the signature of their employment contracts or during any probationary
employee should work for more than 65 hours in any one week unless
a collective agreement provides otherwise; and
employer should keep a record of the actual hours worked by an
employee who agreed to work for more than an average of 48 hours
Section 1.131 17.5 The Government told the previous
Committee that it welcomed the Commission's proposals about on-call
time and (subject to some detailed points) compensatory rest.
The intended effect of those amendments was to reinstate what
had generally been understood to be the meaning of the Working
Time Directive before the rulings in the SiMAP and Jaeger
Section 1.132 17.6 But the proposed amendments
to the opt-out were not acceptable to the Government for reasons
that it explained at length and which are summarised in the previous
Section 1.133 17.7 The Government also said that
the Commission would shortly provide a Regulatory Impact Assessment
(RIA) of its proposals and that the Government would then complete
its own RIA. The Government also referred to the consultations
it had initiated in June 2004 on the operation of the opt-out
in the UK.
Section 1.134 17.8 The previous Committee welcomed
the Commission's efforts to find solutions to the difficulties
arising from the SiMAP and Jaeger rulings and to
devise a way forward on the opt-out which struck 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. It noted the Government's reservations about
the proposals, that the negotiations on them were expected to
be protracted and that the text of the draft Directive was likely
to change. The Committee decided, therefore, to keep the document
under scrutiny and asked the Government to send it the Commission's
and its own Regulatory Impact Assessments of the draft Directive
and a supplementary Explanatory Memorandum on the responses to
the Government's consultation document on working hours and the
operation of the opt-out.
Supplementary Explanatory Memorandum of 17 May
Section 1.135 17.9 In his supplementary Explanatory
Memorandum (SEM), the Parliamentary Under-Secretary of State for
Employment Relations and Consumer Affairs at the Department of
Trade and Industry (Mr Gerry Sutcliffe) reiterates the Government's
views on the proposals in document (a). He says that the Dutch
Presidency had aimed to achieve a political agreement on the revision
of the Directive at the Council meeting on 6/7 December 2004,
but Member States had been unable to come to an agreement. In
May 2005, the European Parliament gave the proposals a first reading.
It voted to phase out the opt-out and proposed a number of other
amendments to document (a).
Section 1.136 17.10 The Minister attached to
Commission's extended impact assessment of the proposals (available
only in French)
Department's own translation of the Commission's assessment;
Department's initial Regulatory Impact Assessment; and
summary of the responses to the Government's consultation paper
on long-hours working in the UK and the operation of the opt-out.
Section 1.137 17.11 Document (b) is a revised
draft of document (a). It incorporates some of the amendments
proposed by the European Parliament. The Commission has not accepted
the rest of the European Parliament's proposals.
Section 1.138 17.12 The main amendments the Commission
has incorporated are as follows:
i) A new definition of the calculation of the
inactive part of on-call time (that is, the time when an employee
is on call but not required to work).
ii) New requirements for Member States to: encourage
representatives of employers and employees to make agreements
to improve compatibility between work and family life; ensure
that employers inform their employees "in good time of any
changes in the pattern or organisation of working time";
and ensure that employers consider employees' requests for flexible
iii) A new requirement for compensatory rest
to be given within a reasonable period to be determined by national
law or collective agreement.
iv) The deletion of the provision in the current
Directive for the maximum average working week to be calculated
using a four-month reference period.
v) A new provision permitting the reference period
to be extended to up to 12 months by collective agreement or by
national law provided that the Member State ensures that the employer
"informs and consults the workers and/or their representatives"
and, if the reference period is not set by a collective agreement,
that the employer "takes the measures necessary to avoid
or overcome any risk relating to health and safety that could
arise from the introduction of such a reference period".
vi) A prohibition on any employee working for
more than 55 hours a week (rather than the 65 hours proposed in
document (a)) unless a collective agreement or national law provides
vii) A requirement for the employers of workers
who work more than 48 hours a week to keep "adequate records
for establishing that the provisions of this Directive are complied
viii) Provision to bring the opt-out to an end
within three years of the proposed Directive coming into force.
Member States would, however, be able to seek the Commission's
permission to retain the opt-out for more than three years "for
reasons relating to their labour market arrangements".
ix) A requirement for the Commission to make
a report on the application of the proposed Directive within three
years of it coming into force.
The Government's view on document (b)
Section 1.139 17.13 The Minister's Explanatory
Memorandum of 21 June tells us that the Commission produced document
(b) late on 31 May and that Member States were unable to reach
agreement on the revised text when it was discussed at the Employment
Council on 2 June.
Section 1.140 17.14 The Minister goes on to comment
in detail on the revised proposals on the opt-out, on-call time,
compensatory rest and some of the other provisions.
Section 1.141 17.15 The Government does not agree
with the proposal for the opt-out to cease to be available after
three years unless the Commission agrees to a Member State's request
for an extension. This would not be acceptable because it would
not satisfy the Government's requirement for legal certainty that
the opt-out can continue.
Section 1.142 17.16 Moreover, the Government
considers that an absolute cap of 55 hours on the average working
week would cause problems for a large number of UK workers and
particularly for people on short-term contracts and seasonal workers.
Section 1.143 17.17 The Government remains concerned
about the proposal to prohibit workers from signing an opt-out
agreement during a probation period. The UK does not have a statutory
probation period and there would be problems for employees and
employers if workers were prohibited from working longer hours
during their first year or while on a short-term contract. The
Minister says that the Government has proposed an alternative
safeguard: a "cooling-off period" of three months during
which the employee would be able to withdraw from an opt-out agreement
without giving notice.
Section 1.144 17.18 The Government welcomes the
proposal to make 12 months the reference period for the calculation
of average weekly hours. But the Minister is concerned about the
conditions attached to the proposal (see paragraph 0.12(v) above)
because: countries such as the UK do not have a widespread tradition
of collective agreements; the proposed requirements for employers
to inform and consult could damage "the carefully developed
support for and acceptance" of information and consultation
by UK employers; and the Government does not understand why health
and safety checks should be required only if there was no collective
Section 1.145 17.19 The Government is also concerned
about the proposal to abolish the four-month default reference
period. The Minister says that:
"This would effectively mean a one-week reference
period, which would cause problems for all sorts of workers. The
reason for the removal of the clause is unclear the Government
will investigate with the Commission whether they intended the
proposal to have this effect."
ON-CALL TIME AND COMPENSATORY REST
Section 1.146 17.20 The Minister says that the
SiMAP and Jaeger judgements seriously threatened
the adequate provision of health services in the UK. He notes
that the revised proposals remove the flexibility provided in
document (a) for the inactive part of on-call time to be treated
as rest. The Minister tells us that:
"This would be a particular concern because
the proposed definition of 'workplace' might on occasion include
home working. If on-call work at home was included in the rules
for inactive and active time, this would cause problems as inactive
on-call at home would not be defined as rest for the purpose
of the Directive, and this could have implications for workers
and employers in a number of sectors."
Section 1.147 17.21 The Minister says, however,
that the Government welcomes the proposal on compensatory rest
for missed rest breaks and believes that it would solve the problems
caused by the Jaeger case.
Section 1.148 17.22 The Government is concerned
about the new proposal to require Member States:
encourage employers and employees to make agreements "aimed
at improving compatibility between working and family life";
ensure that "employers inform workers in good time of any
changes in the pattern or organisation of working time";
ensure that employers examine workers' requests to change their
working hours and work patterns "taking into account employers'
and workers' needs for flexibility".
The Minister says that:
"Though this article looks superficially reasonable,
it would create problems in the UK and in other Member States.
The UK has successfully introduced targeted 'light touch' legislation
on the right to request flexible working, which has allowed employers
and workers to agree a wide range of solutions that best meet
their individual needs. The achievements of this policy would
be jeopardised by an inflexible 'one size fits all' legislative
approach. It is not clear how the employer would be expected to
judge the employee's need for flexibility against the employer's
own needs, as appears to be required by the Commission's proposal.
The right to request flexible working would also be far more extensive
than the current UK right, which applies only to parents of young
and disabled children, and only applies after six months of employment.
The UK Government is also concerned about the new requirement
to inform employees 'in good time' of any changes to shift patterns.
It is not clear what this would mean in practice, but it could
mean that the slightest changes to a shift pattern would have
to be notified to employees well in advance."
Section 1.149 17.23 The Government considers
that the proposal for the new arrangements to be reviewed after
three years would not allow enough time for the effect of the
arrangements to be assessed and would expose industry to "the
prospect of almost permanent change and a lack of stability".
Section 1.150 17.24 We welcome the prospect
of agreement on legislation to redress the effect of the Jaeger
judgement on compensatory rest. We agree with the Minister that
the proposals on on-call time need clarification. Action to overcome
the difficulties caused by the SiMAP and Jaeger
judgements is required urgently. We hope it might be possible,
therefore, to deal with the amendments for that purpose separately
from, and in advance of, the proposals about the opt-out, which
are likely to take more time to negotiate.
Section 1.151 17.25 We agree with the Minister
that the proposals about the opt-out do not appear to take sufficient
account of the differences between Member States: for example,
of the fact that the UK does not have a widespread tradition of
collective agreements and that there is no statutory probation
period in the UK. We also agree that three years would not provide
sufficient time to enable the new arrangements to be evaluated
before the opt-out ceased to be available. Moreover, we question
if it is appropriate for the Commission to be the sole arbiter
of whether Member States should be given an extension of the three-year
period "for reasons related to their labour market arrangements".
Section 1.152 17.26 We share the Government's
reservations about the drafting of the proposal in Article 1(3)
of document (b) about agreements on the compatibility between
work and family life; informing employees "in good time"
about changes in shift patterns; and dealing with workers' requests
for flexible hours.
Section 1.153 17.27 We consider that the drafting
of some of the other proposals is insufficiently precise and would,
therefore, be likely to create uncertainty and consequent litigation.
We have in mind, for example:
proposal that, if the 12-month reference period is set by national
legislation or regulation, the employer must take "the measures
necessary to avoid or overcome any risk relating to health and
safety that could arise from the introduction of such a reference
period". In our view, whether there is or is not a risk is
likely to be a subjective judgement and the reference to "any
risk" seems to us to set a disproportionately high hurdle.
proposal that the employers of workers who work more than 48 hours
a week should keep "adequate records for establishing that
the provisions of this Directive are complied with". The
document contains no definition of what records would be "adequate",
so creating uncertainty and risk for employers generally and for
those running small and medium-sized businesses in particular,
who are unlikely to be able to afford expert advice on the adequacy
of their records.
Section 1.154 17.28 Because of the Government's
and our own reservations about the proposals, we shall keep document
(b) under scrutiny. We ask the Minister to keep us informed of
the progress of negotiations on the text.
Section 1.155 17.29 We clear document (a)
because it has been superseded by the revised draft of the Directive.
54 Council Directive 2003/88/EC concerning certain
aspects of the organisation of working time, OJ No. L 299, 18.11.2003,
Case C-303/98  1 ECR 7963. Back
Case C-151/02  3 CMLR 493. Back
See (25248) 5188/04: HC 42-ix (2003-04), para 4 (4 February 2004). Back
See headnote. Back
Article 1(3) of document (b). Back