Select Committee on European Union Ninth Report



The European Working Time Directive

1.1.  The Working Time Directive[1] (the Directive) was introduced in 1993 as a health and safety measure as a 'practical contribution towards creating the social dimension of the internal market'. It provides for:

  • a working time limit of 48 hours over 7 days averaged over a reference period not exceeding 4 months;
  • night work limits;
  • health assessments for night workers; and
  • entitlements to weekly, daily and in-work rest breaks and four weeks' paid annual leave.

1.2.  By collective agreement the 48-hour a week limit may be calculated by reference to a period of up to 52 weeks.

1.3.  The Directive does not apply to anyone who is self-employed or to persons with "autonomous decision-making powers", family workers or workers officiating at religious ceremonies in churches and religious communities[2].

1.4.  The working hours and related conditions of lorry drivers are covered separately by the Road Transport Directive.[3]

The UK Working Time Regulations

1.5.  The Directive was transposed into United Kingdom law by the Working Time Regulations 1998 which include the right to a voluntary opt-out. Under the Regulations the individual agreement that the 48 hour limit shall not apply must be in writing.[4] In 1999 the Working Time Regulations were amended in order to bring them into line with the Directive which requires employers to keep up-to-date records of all workers who have voluntarily opted out. [5]

The Commission's Review

1.6.  Article 18 of the Directive requires the European Council of Ministers to re-examine by 23 November 2003 both the derogation from the 17 weeks reference period through collective agreement and the voluntary individual opt-out provision. Review of these two matters should take place on the basis of a Commission proposal accompanied by an appraisal report.

1.7.  On 15 January 2004 the Commission published the required Communication to re-examine the reference period and the opt-out[6]. This Communication also considers the implications for the Working Time Directive of two recent European Court of Justice Rulings (SiMAP and Jaeger).[7]

1.8.  On the basis of this Communication, the Commission has issued an open consultation of interested parties to consider five main matters:

  • The length of the reference period
  • The definition of working time following the ECJ rulings
  • The conditions for the application of the opt-out
  • Measures to improve the balance between work and family life (which were not included in the original Directive)
  • How to find the best balance of these measures.

1.9.  The closing date for submissions to the Commission's consultation is 31 March 2004.

1.10.  Based on the Communication and the submissions received through the open consultation, which the Commission states it will consider in detail, the Commission is expected to propose an amended Directive. The factors which the Commission say should be weighed up in choosing future policy options include: [8]

  • giving workers a high level of health and safety protection;
  • giving employers and Member States more flexibility in the way they manage working time; and
  • avoiding imposing unreasonable constraints on businesses, especially SMEs, and enabling them to meet fluctuations in demand.

1.11.  This Report deals with these issues. It is intended to feed into the Commission's consultation and we make this Report to the House for debate.

Why have we launched this Inquiry?

1.12.  This Report is the result of an Inquiry carried out by Sub-Committee G (which deals with Social Policy and Consumer Affairs) between January and March 2004. It is intended to feed into the consultation by the European Commission on the review of the Directive. Our conclusions and recommendations are set out in Chapter 4.

1.13.  A list of Sub-Committee Members and their declared interests is at Appendix 1. Our Call for Evidence is at Appendix 2. A full list of those who gave evidence is set out in Appendix 3. The written and oral evidence received is printed in an Annex to the Report.

1.14.  We would like to express our appreciation and thanks to all those who assisted in this Inquiry.

1.15.  We have carried out this Inquiry in order to inform the European Commission's consultation because the review of the Directive is clearly of considerable economic and social importance for the United Kingdom and because the two European Court of Justice judgments, (SiMAP in 2000 and Jaeger in 2003) have a profound potential impact on the application of the original Directive in the United Kingdom health sector in particular and possibly on other sectors.

1.16.  We note that the United Kingdom Labour Force Survey reports that only 20 per cent of full-time workers in the United Kingdom usually work more than 48 hours a week. We were told that this equates to 3.7 million workers. If a reference period of 52 weeks is taken, this figure drops to 1.7 million. As the DTI have pointed out, some of these may be "autonomous workers" who are excluded from the terms of the directive. (Q 5)

1.17.  Even though the majority of United Kingdom workers are not working more than the stipulated 48 hours a week, we have received strong evidence in support of retaining the opt-out because of its importance to United Kingdom competitiveness.

1.18.  The Commission review of the Working Time Directive is also particularly relevant to the United Kingdom for two other reasons:

The Barnard Report

1.19.  In order to assess the application of the individual opt-out in the United Kingdom more fully, the Commission put out to tender a study which could feed into the Commission's plan for a review of the Directive. Professor Catharine Barnard of Cambridge University and associates won this tender and conducted a study which considered views from the 'social partners' - management and labour organisations; Government; and the Health and Safety Executive. The Barnard Report also covers findings from a selective sample of a number of specific employer-based case studies. (Q 185) This study indicates considerable reliance by United Kingdom employers on the voluntary individual opt-out and reinforces the point that any review of the Working Time Directive is of clear importance to the United Kingdom.

The European Parliament Report

1.20.  The European Parliament Employment and Social Affairs Committee produced a report which called on the Commission to launch infringement proceedings against the United Kingdom at the European Court of Justice for using the opt-out and called on the United Kingdom to do away with the individual opt-out entirely by 2007. On 11 February 2004, the European Parliament endorsed the report in plenary, but deleted the call for infringement proceedings against the United Kingdom and replaced the reference to 2007 by 'as soon as possible'.[10]

1.21.  In complete contrast to the view expressed by the European Parliament, the great majority of our witnesses agree with the United Kingdom Government that the voluntary individual opt-out should be retained as it affords flexibility to the United Kingdom workforce and is important to United Kingdom competitiveness.

1.22.  What is more, the United Kingdom is not the only Member State that has sought to use the provisions in the Directive to increase flexibility. Luxembourg has also introduced the possibility for individual opt-out limited to the hotel and catering industry. Among the Accession States, Cyprus and Malta have incorporated the Directive in national legislation for all employment.[11]

1.23.  The CBI told the Committee that the Netherlands has created greater flexibility by interpreting 'persons with autonomous decision-taking power' who are excluded from the Directive as anyone who earns more than three times the national minimum wage. (Q 68)

1.24.  In comparing the situation in the United Kingdom it is important to recall that the voluntary individual opt-out is only one of three main ways in which Member States have sought to extend the flexibility of the Directive. Other Member States have extended the reference period to 52 weeks through collective agreements or have broadened the definition of 'autonomous worker' which excludes a worker from the Directive. This report considers each of these possibilities for retaining flexibility in application of the Directive.

ECJ Judgments

1.25.  In its Communication, the Commission extends the remit of the re-examination of the Directive to include the impact of the European Court of Justice Judgments in what are known as the SiMAP and Jaeger cases about the interpretation of the Directive. In the 2000 SiMAP judgment, the Court defined time spent resident on call in a hospital or other place of work as working time, even if the worker was asleep for some of that on-call time.[12] The Jaeger judgment of 2003 requires that compensatory rest should be taken immediately rather than within a reasonable time if the statutory 11 hours rest per 24 hours has been interrupted by an emergency.[13] As the BMA told us, this means that if a doctor is called in to hospital after only 8 hours of rest, he should cancel his morning clinic and return home to take his outstanding three hours of rest thereby disrupting the rota system. (Q 180)

1.26.  In order to avoid the full implications of these judgments, France and Spain have already implemented the opt-out for use in the health sector. Austria, Germany, and the Netherlands plan to do so. (Q 24) Of the countries that will join the EU on 1 May 2004, Slovenia has already applied the opt-out to the health sector. Estonia, Hungary, Latvia and Lithuania may also apply the opt-out to the health sector alone.[14]

1.27.  It is thus clear that the consequences of the SiMAP and Jaeger judgments are proving very difficult not only for the United Kingdom, but also for a number of other Member and Accession States. However, the BMA contends that these judgments will hit the United Kingdom harder than other countries because of the relatively low number of doctors per head of population in the United Kingdom compared with other Member States. Once junior doctors come within the scope of the Directive on 1 August 2004, the implications will be even more serious for the United Kingdom. (Q 154) Our evidence shows that the Jaeger judgment in particular has made it very difficult for some hospitals to provide patient care while respecting the Directive as the ECJ has interpreted it. We therefore also consider these aspects in our report.

1   Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time. Official Journal L307, 13/12/1993 p. 0018-0024. Back

2   Ibid Back

3   Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities [2002] 05 L80/35 Back

4   Working Time Regulations 1998 SI1998/1833 Back

5   Working Time Regulations 1999 SI1999/372 Back

6   COM(2003)843 final/2 Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions and the social partners at Community level concerning the re-exam of Directive 93/104.EC concerning certain aspects of the organization of working time. Back

7   See 1.25 - 1.27 and Chapter 3 Back

8   COM (2003) 843 final/2 Back

9   COM (2003) 843/final 2 Back

10   Plenary vote on 11 February 2004: 370 votes to 116 with 21 abstentions. Back

11   COM (2003) 843/final 2 Back

12   Case C-303/98, Sindicato de Medicos de Asistencia Publica (SiMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciane ECR [2000], I-7963. Back

13   Case C-151/02, Landeshauptstadt Kiel v Norbert Jaeger. Judgment of 9 October 2003 Back

14   COM (2003) 843 final/2 Back

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