1 Reviewing the Working
Time Directive
| (a)
(32406)
5068/11
COM(10) 801
+ ADD 1
(b)
(32404)
5064/11
COM(10) 802
+ ADD 1
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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
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| Legal base | —
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| Document originated | 21 December 2010
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| Deposited in Parliament | 7 January 2011
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| Department | Business, Innovation and Skills
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| Basis of consideration | EM of 26 January 2011
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | For debate in European Committee C
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Background
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.
Conclusion
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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