European Scrutiny Committee Contents

1   Reviewing the Working Time Directive




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COM(10) 802

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Commission Communication: Reviewing the Working Time Directive

Commission staff working paper: Detailed overview of replies received from the social partners at European level to the first-phase consultation under Article 154 TFEU on reviewing the Working Time Directive

Commission report on Member States' implementation of the Working Time Directive (2003/88/EC)

Commission staff working paper: detailed report on Member States' implementation of the Working Time Directive

Legal base
Document originated21 December 2010
Deposited in Parliament7 January 2011
DepartmentBusiness, Innovation and Skills
Basis of considerationEM of 26 January 2011
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentPolitically important
Committee's decisionFor debate in European Committee C


1.1  The current Working Time Directive, adopted in 2003, codifies and repeals two earlier Directives on the organisation of working time, the first dating back to 1993. Its purpose is to protect the health and safety of workers in the public and private sectors by establishing common minimum requirements in all Member States covering:

  • daily rest breaks (normally, 11 consecutive hours per 24-hour period);
  • weekly rest breaks (at least one uninterrupted rest period of 35 hours);
  • a rest break during working time if the working day is longer than six hours;
  • a maximum weekly working time of 48 hours, which may be averaged out over a reference period;
  • paid annual leave of at least four weeks; and
  • additional protection for night workers.

1.2  The Directive gives Member States the flexibility to derogate from some of these minimum requirements in relation to specified situations or activities, provided workers are given equivalent rest periods to compensate for any shortfall. Member States may also make provision in their implementing legislation for workers to opt out of the 48-hour week, provided that they give their free and informed consent and are not penalised by their employers if they refuse to work longer hours. Employers must also keep up-to-date records of all employees who have agreed to opt out of the 48-hour week.

1.3  Member States' flexibility in implementing the Directive has been affected by a number of Court of Justice rulings which have sought to define the concept of working time. So, for example, the Court has ruled that time spent on-call at an employee's place of work counts as working time, even if the employee is not actively employed for some of that time.[1] Moreover, if an employee misses a rest break during his or her working day, then a compensatory rest break must be taken straight afterwards. It cannot be cumulated and added on after the employee has performed overtime or further on-call duties.[2]

1.4  At the end of 2003, the Commission published a Communication evaluating the use made of the opt-out from the 48-hour week, other derogations from the Directive's minimum requirements and the impact of the Court's case law. It also initiated a consultation process to consider the need for changes to the Directive. In 2004, the Commission proposed an amending Directive which, after much negotiation and revision, was unable to command the support of both the European Parliament and Council and was abandoned in 2009.

1.5  In March 2010, the Commission initiated a "first-phase" consultation of EU social partners to seek their views on possible changes to the Working Time Directive. The consultation, which forms part of a comprehensive review of the Directive, is required under Article 154(2) of the Treaty on the Functioning of the European Union (TFEU) which provides that the Commission "shall consult management and labour on the possible direction of Union action" before it submits proposals in the social policy field. If, as a result, the Commission considers that EU action is advisable, it is required by Article 154(3) TFEU to conduct a "second-phase" consultation, seeking the views of EU social partners on the content of the proposed action. The social partners may, as a result of the consultation, decide to enter into a dialogue at EU level on the content and scope of working time regulation under Article `155 TFEU which "may lead to contractual relations, including agreements." The Commission also indicated that it would carry out an extensive impact assessment which would consider the social and economic impact of the Directive and its application in Member States.

Document (a) — the Commission Communication

1.6  The purpose of the Communication is to initiate the second phase of consultation with the social partners in order to ascertain what changes need to be made to the Directive, and whether these may be achieved through negotiations between the social partners. It describes the outcome of the first phase of consultation, the main trends in working time and the social and economic impact of the Directive. It also sets out the case for a limited or a comprehensive review of the Directive. The Commission says that further legislative action on working time is needed "to shape EU rules to changing working time patterns while respecting their objective of protecting workers' health and safety, and to clarify critical issues of interpretation" which have arisen from a number of Court of Justice rulings.

Outcome of the first stage of negotiations between social partners[3]

1.7  The Commission notes that there is a broad consensus that major changes in the workplace over the last 20 years have significantly affected the organisation of working time but that "there is strong disagreement on the implications of these changes ... Employers tend to see them as requiring legal changes aimed at greater working time flexibility, while unions consider that they necessitate changes to strengthen legal protection for workers."[4] As a result, opinions differ on the nature and extent of changes needed to the Directive. Some business organisations are opposed in principle to regulating working time at EU level. Others consider that EU regulation could help to provide a level playing field. All agree that the current rules are too rigid and complex and that changes are needed to mitigate the legal uncertainty created by Court of Justice rulings on on-call time and compensatory rest. Businesses generally want to retain the flexibility to opt out of the 48-hour week.

1.8  Unions emphasise that working time rules are based on fundamental social rights and express concern that they are inadequately enforced. Most want to discontinue the opt-out and to find "balanced and sustainable solutions for on-call time" which respect the Court of Justice's case law on the definition of on-call and working time. Some social partners indicate an interest in initiating negotiations based on Article 155 TFEU, but there is also a perception that positions on the opt-out are too polarised for negotiations to succeed.

The main working time patterns and trends

1.9  The Commission says that, although there has been a gradual reduction in average working time in the EU, this is mainly because of a steady increase in the number of part-time workers. It adds: "Across Europe, there is still wide variation in average annual hours worked. There is no sign of a convergent trend and it is very unlikely that this picture will change in the near future. The average number of hours worked varies from under 1,400 (Netherlands) to over 2,100 (Greece). Interestingly, the length of working time appears highly inversely correlated with levels of hourly productivity across Member States."[5]

1.10  The Commission identifies the expansion in flexible work patterns and individualised working hours as the most significant trend in recent years which, in turn, reflects the increasing diversity of the workforce as more women enter the labour market and more older workers remain in employment for longer.

The main social and economic effects of the Directive

1.11  The Commission says that there is "ample and robust evidence showing that long working hours, missed minimum rests and atypical working hours have a detrimental effect on health and safety, both for the workers concerned and for the general public" and that there is "comparatively less robust evidence" on the economic and business impact of the Directive. Existing working time regulation is seen as generally beneficial for employees as it gives leverage to negotiate better working conditions and pay in markets where there is a demand for skilled labour. Businesses, however, are concerned about the effect of working time regulation on competitiveness and most would like the reference period for calculating average weekly working time (usually four months) to be extended. The Commission adds that companies in countries where the 48-hour week opt-out is available want it to be maintained. The opt-out is of particular value in those areas where there is a need for continuity of care or service, for example in health and residential care and emergency services.

Options for review

1.12  The Commission states, at the outset, that the removal of minimum EU requirements on working time is not an option. It says that, while there is a broad consensus among social partners that changes to the current working time rules are needed, there is no agreement on the content of any future amending legislation. The Commission therefore proposes two possible approaches, one based on a focused review, the other on a comprehensive review, of the provisions of the Directive.

1.13  The first option — the focused review — would seek to clarify in legislation the treatment of on-call time and the timing of daily and weekly compensatory rest periods in order to resolve some of the practical difficulties resulting from the rulings of the Court of Justice and to improve compliance. The Commission says that on-call time spent at the workplace would continue, in principle, to be treated as working time but a derogation would be available in limited sectors where continuity of service is required so that on-call time could be counted differently. According to this so-called "equivalence principle", on-call time would not have to be counted on an hour-per-hour basis, but amending legislation would still specify a certain maximum weekly limit on working time. The Commission believes that this would give social partners the flexibility to determine the most appropriate method for counting on-call time at local or sectoral level. The Commission also suggests introducing more flexibility in determining when periods of compensatory rest may be taken, provided this is "limited to situations where it is necessary for objective reasons" and that the workers concerned receive appropriate alternative protection ensuring sufficient rest and recuperation time.

1.14  The second option — the comprehensive review — would consider a broader range of issues, encompassing those relating to on-call time and compensatory rest as well as some or all of the following:

  • provision for additional flexibility to decide working time arrangements by means of collective bargaining;
  • extension of the reference period for calculating average weekly working time to 12 months in those sectors or Member States where the opt-out is not in use, provided it is part of a balanced package;
  • provision for social partners to agree a reference period exceeding 12 months in specific cases;
  • the inclusion of provisions on work-life balance which would require employers to inform workers of any substantial change to their pattern of work and to consider requests for flexible working (including the reasons for refusing such requests);
  • clarification of the derogation from the 48-hour week for certain categories of workers who have genuine and effective autonomy to determine their own working time;
  • clarification of the application of the Directive to workers employed under concurrent employment contracts with the same or different employers;
  • consideration of how the Directive applies to workers in particular services, such as fire-fighters or road transport workers; and
  • flexibility for Member States to introduce a ceiling on the accumulation of paid annual leave entitlements for workers on long-term sick leave.

1.15  The Commission notes that the opt-out remains a divisive issue. Whereas, in 2000, the UK was the only Member State to make use of the opt-out, 15 others now do so. The Commission says:

"It does not seem realistic to ask all these Member States to refrain from using this derogation, without ensuring feasible alternative solutions. . . .

"It therefore makes more sense to reduce the need for using the opt-out in the long term, by providing more targeted forms of flexibility, than to re-open a debate on its abolition in which no consensus appears possible between the social partners or between the co-legislators."[6]

1.16  The Commission anticipates that changes to the Directive which introduce greater flexibility for Member States by, for example, extending the reference period for calculating average weekly working time, would discourage use of the opt-out. The Commission suggests that flexibility should be accompanied by more effective monitoring to ensure that employees who have opted out have done so freely, on the basis of an informed decision, and that they are not required to work excessive hours. The opt-out should also be subject to periodic evaluation.

1.17  The Commission says that a comprehensive review of the Directive should help to clarify areas where, currently, there is legal uncertainty and produce "clearer, simpler, more transparent and accessible regulation."[7] It concludes by asking social partners for their views on the options set out in the Communication and the prospects for the negotiation of an EU-level agreement under Article 155 TFEU.

Document (b) — the Commission's report on Member States' implementation of the Working Time Directive

1.18  The report assesses Member States' implementation of, and compliance with, the Directive, as interpreted by the Court of Justice. The Commission says that "the large majority of employees in the EU work under working time rules that respect EU legislation. In many cases, national rules afford greater protection than what is required under the Directive",[8] but the Commission highlights the following problem areas:

  • the definition of working time (especially on-call time) and the rules on equivalent compensatory rest (where minimum rest periods are postponed), particularly in services operating around the clock;
  • the protection of workers with multiple contracts;
  • the situation of particular groups of workers (such as emergency services or those exercising a high level of autonomy over their working hours); and
  • inadequate monitoring and enforcement of conditions attached to the opt-out in those Member States which allow its use.

1.19  The Commission notes that use of the opt-out varies considerably, with five Member States[9] (including the UK) making it available in all sectors and eleven[10] limiting its use to specific sectors or jobs where the demand for on-call time is high. It says that there is a wide variation in the conditions attached to the opt-out, with some Member States setting maximum average weekly hours for opted-out workers and others specifying no limit. According to the Commission, most Member States do not require employers to monitor or record the working time of opted-out workers, making it difficult to assess the degree of any health and safety risk.

1.20  The Commission expresses its determination to bring its review of the Working Time Directive to a successful conclusion and says that it will focus on "the Directive's overall impact on workers' health and safety against the background of evolving work patterns and models of work organisation."[11] A detailed overview of implementation of the Directive in each Member State is provided in the accompanying Commission staff working paper (Addendum 1).

The Government's view

1.21  The Minister for Employment Relations, Consumer and Postal Affairs (Mr Edward Davey) notes that the documents have no direct policy implications at this stage as the Commission may not propose amending legislation until it has completed the two-stage process of consulting social partners. He continues:

"The Government is committed to limiting the application of the Working Time Directive in the UK. We welcome the Communication's emphasis on adapting the Directive to meet the needs of 21st century labour markets. In particular we note that the supporting documents published alongside the Communication confirm the benefits of providing further flexibility on working time, especially by addressing the problems caused by the European Court judgements on on-call time and compensatory rest. These supporting documents also make clear the benefits of the flexibility that the opt-out can provide, and underline the extent of its use across a significant number of Member States.

"The Government welcomes the Commission's intention not to reopen the debate on the abolition of the opt-out from the 48 hour maximum working week, and we will work with the Commission and partners in Europe to ensure that this is reflected in any future legislative proposal. The retention of the opt-out remains an absolute red line for the UK.

"The Government will engage positively and constructively with any further negotiations on working time with the aim of securing additional flexibility, for example regarding the treatment of on-call time and compensatory rest, while ensuring the retention of the opt-out. We will work to ensure that any amendments to the Directive are consistent with the principles of subsidiarity and proportionality."

1.22  The Minister notes that the Commission's report on implementation of the Directive does not identify any problems of compliance in the UK and that, as a result, he does not consider the UK to be at risk of legal action. He says that the second stage of consultation with social partners should be concluded by the end of February but may be extended by a further four weeks. If social partners do not agree to take forward negotiations on changes to the Directive, then he expects the Commission to publish its own proposal in spring or summer this year.


1.23  The Commission's Communication launching the second phase of consultation with social partners and its Report on implementation of the Working Time Directive illustrate how much has changed since 2000, when the UK was the only Member State to make use of the opt-out from the 48-hour week. We note that a significant majority of Member States now include provision in their domestic legislation for the opt-out to apply to some or all employees, but that there is a continuing polarisation of views among social partners on its retention. This suggests that an agreement between social partners on changes to the Working Time Directive is unlikely and that the Commission will, in due course, present its own proposals, which it says will be accompanied by a detailed impact assessment setting out the economic and social aspects of any changes proposed.

1.24  We note the Government's commitment to the retention of the opt-out and the pragmatic tone in the Commission Communication which suggests that it is unlikely to be abolished in the short-term. However, we are less sanguine about the longer term prospects for the opt-out. The Commission says that any new amending legislation should provide for effective periodic evaluation of the opt-out. It also anticipates that the inclusion of "more targeted forms of flexibility" should reduce the need for Member States to have recourse to the opt-out. We think there is a risk that, if changes to the existing Directive result in fewer Member States using the opt-out, pressure will again intensify to legislate for its removal.

1.25  Although the Commission's Communication and Report do not contain any proposals for amending legislation at this stage, they usefully highlight some of the practical difficulties encountered in implementing the Directive and set out two possible approaches to amending the Working Time Directive, one focussing on a fairly narrow set of issues arising from Court of Justice rulings concerning on-call time and compensatory rest, the other contemplating more far-reaching changes. Because of the importance of the issues, we think that the House should have an early opportunity to debate them so that the Government can take full account of its views if, as seems likely, the Commission puts forward its own proposals to amend the Directive. Accordingly, we recommend the documents for debate in European Committee C.

1   The SIMAP case, Case C-303/98. Back

2   The Jaeger case, Case C-151/02. Back

3   A detailed overview of the outcome of the first-phase consultation is set out in the accompanying Commission staff working paper (ADD 1). Back

4   See page 3 of the Communication.  Back

5   See page 6 of the Communication. Back

6   See page 14 of the Communication. Back

7   See page 15 of the Communication.  Back

8   See page 9 of the report. Back

9   Bulgaria, Cyprus, Estonia, Malta and the UK. Back

10   The Czech Republic, France, Germany, Hungary, Latvia, the Netherlands, Poland, Slovakia, Slovenia and Spain. Belgium is introducing legislation to permit use of the opt-out for some health professionals.  Back

11   See page 10 of the Report.  Back

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