EC: New working time and consultation Directives in force

Maximum weekly working time

Article 4 states that member states should ensure that average weekly working time should not exceed 48 hours, although it can be extended to 60 hours if an average of 48 hours per week over a period of four months is not exceeded.

In the case of workers who work for different employers, the sum of working hours counts toward the maximum working week. The employer should ask the mobile worker in writing for an account of time worked for another employer and the mobile worker should then provide this information in writing.

Breaks

Article 5 obliges member states to ensure that, without prejudice to the protection provided for by Regulation 3820/85 or the AETR agreement, mobile workers in road transport must in no circumstances work for more than six consecutive hours without a break. The break should be of at least 30 minutes if working hours total between six and nine hours and of at least 45 minutes of working hours total more than nine hours. However, it also states that breaks may be subdivided into periods of at least 15 minutes each. Article 6 states that apprentices and trainees should be covered by the rest time provisions contained in Regulation 3820/85 or the AETR agreement.

Nightwork

Article 7 states that if a worker is performing nightwork, daily working time must not exceed 10 hours in each 24-hour period. Compensation for nightwork should be given in accordance with national legislation or agreements and/or practice, on condition that the compensation is not liable to endanger road safety.

The Commission will, by 23 March 2007, assess the consequences of these nightwork provisions and, if necessary, submit "appropriate proposals". Further, the Commission will present a proposal for a Directive relating to the training of professional drivers, including those who perform nightwork.

Derogations

Article 8 states that derogations from the Directive's provisions relating to the maximum working week and to nightwork may be made for objective or technical reasons or reasons concerning the organisation of work. These can be contained in collective agreements, agreements between the social partners, or, if this is not possible, by laws, regulations or administrative provisions, provided that there is consultation of the representatives of the employer and workers concerned and "efforts are made to encourage all relevant forms of social dialogue". However, it also states that the option to derogate from the maximum working week may not result in the establishment of a reference period of more than six months for the calculation of the average maximum 48-hour week.

Information and records

Article 9 obliges member states to ensure that mobile workers are informed of the relevant national requirements, internal undertaking rules and agreements between the two sides of industry reached on the basis of this Directive. The working time of mobile workers should be recorded and the records should be kept for at least two years after the end of the period covered. Employers shall be responsible for keeping records and should provide copies to workers on request.

Other provisions

Article 10 contains a standard clause stating that member states may apply or introduce more favourable law, regulations or administrative provisions or facilitate or permit more favourable collective or other agreements.

Article 11 obliges member states to lay down a system of penalties for breaches of national implementing provisions, which must be "effective, proportional and dissuasive".

Article 12 states that once the Directive is in force, the European Community will begin negotiations with the relevant third countries on applying rules, which are equivalent to those contained in this Directive, to mobile workers employed by undertakings established in a third country.

Article 13 obliges member states to report every two years to the Commission on the implementation of the Directive. The Commission will then produce a report every two years, based on these national reports.

Article 14 obliges member states to comply with the Directive by 23 March 2005 - a three-year implementation period, as the Directive entered into force on 23 March 2002, the day it appeared in the Official Journal.

Informing and consulting employees

Some three-and-a-half years after it was first issued in proposal form, the Directive establishing a general framework for informing and consulting employees is now in force. In order to gain the support of all EU member states in the Council, and particularly the backing of the UK government, the text has undergone a number of revisions to its original form. The most significant of these is the inclusion of a longer transposition timetable for smaller companies in countries that have no general, permanent and statutory system in place, essentially the UK and Ireland. Other, more controversial clauses, such as the inclusion of powerful sanctions in the case of non-compliance, were taken out of the text at an early stage of the decision-making procedure.

This new Directive, which finally appeared in the Official Journal on 23 March 2002, has had a genesis which has been at least as difficult as that of the above proposal on working time for mobile workers in road transport. The Commission originally consulted the EU-level social partners on this issue in June 1997. Although the European Trade Union Confederation (ETUC) was in favour of trying to negotiate an agreement to regulate this area, the private-sector EU-level employers' organisation UNICE was not and so the Commission issued on 11 November 1998 a proposal for a Directive. The proposal was not discussed in the Council until 2000 when, after some preliminary work done by the outgoing Portuguese Presidency towards the end of the first half of 2000, the text was discussed in the social affairs Council in November 2000. Subject to qualified majority voting under the co-decision procedure, there was a blocking minority in the Council, originally made up of Germany, Denmark, the UK and Ireland - the proposal would have the greatest impact in the latter two countries, which have no general system for informing and consulting employees in place. However, following subsequent discussions in the Council in December 2000, opposition by Germany and Denmark was dropped.

During the first few months of 2001, Ireland also indicated that it would drop its opposition and was seeking amendments to the detailed provisions of the Directive and the implementation timetable. At the social affairs Council held in June 2001, the UK also dropped its opposition and political agreement on a common position was reached, which included a longer implementing timetable for smaller companies in countries such as the UK and Ireland. The text was then, under the terms of the co-decision procedure, passed to the European Parliament (EP) for a second reading, at which strengthening amendments were inserted. The Council could not accept all of the amendments and so a Council/EP conciliation committee was convened, which issued a compromise text on 17 December 2001. This text was approved by the EP on 5 February and by the Council on 18 February. It came into force on 23 March, the day it appeared in the Official Journal. The full text of the Directive can be found at Final text of information and consultation Directive. Below, we look in detail at its provisions.

The Directive in detail

Object and principles

Article 1 states the purpose of the Directive as to establish a general framework for setting out minimum requirements for the right to information and consultation of employees in undertakings or establishments within the European Community. It also states that the practical arrangements for informing and consulting employees shall be defined and implemented "in accordance with national law and industrial relations practices in individual member states". It stresses that the employer and employees' representatives should work in a "spirit of cooperation".

Definitions

Article 2 sets out a number of definitions as follows:

Scope

The Directive allows member states to choose to apply the Directive either:

The Directive also allows member states to lay down particular provisions for undertakings or establishments which pursue political, professional organisational, religious, charitable, educational, scientific or artistic aims or aims involving information and the expression of opinions, as long as provisions of that nature already exist in national legislation. Further, member states may derogate from the Directive in the case of the crews of vessels plying the high seas.

Practical arrangements for information and consultation

Article 4 states that it is up to member states to determine the practical arrangements for exercising the right to information and consultation at the appropriate level, without prejudicing any existing arrangements which may be more favourable to employees.

However, it does list the following three areas which should be covered by information and consultation arrangements:

It also states that information should be given "at such time, in such fashion and with such content as are appropriate to enable, in particular, employees' representatives to conduct an adequate study and, where necessary, prepare for consultation."

Consultation

The Directive does not explicitly state that consultation should take place in good time. However, it does state that the timing, method and content of consultation should be "appropriate" and that it should be carried out in such a way as to enable employees' representatives to meet the employer and obtain a response, and the reasons for that response, to any opinion they might formulate, which implies that the process should take place well in advance of any final decision.

The Directive also states that consultation must take place at the relevant level of management and representation, should be on the basis of information supplied by the employer and of the opinion formulated by the employees' representatives and should be with a view to reaching an agreement on decisions within the scope of the employer's powers in the case of decisions likely to lead to substantial changes in work organisation or in contractual relations.

Agreements

Article 5 states that member states may entrust management and labour, at the appropriate level, with negotiating the practical arrangements for informing and consulting employees. These agreements may contain provisions which are different from those set out in article 4, essentially covering the subject matter and arrangements for information and consultation, as long as the principles set out in article 1 are respected, in addition to any conditions or limitations set out by member states.

Confidentiality

Article 6 states that member states should provide that employee representatives and experts who assist them are not authorised to disclose any information which has been provided to them in confidence. This obligation should continue to apply after the expiry of the term of office. Further, member states may provide that employers do not have to disclose information or embark on consultation where this would seriously harm the functioning of the undertaking or establishment.

Protection

Article 7 states that member states must ensure that employee representatives are adequately protected when carrying out their functions and that guarantees are in place which enable them to perform their duties properly. Article 8 obliges member states to put into place appropriate measures in the event of non-compliance with the Directive on the part of either the employer or the employee representatives. On the issue of sanctions, the Directive obliges member states to provide for "adequate sanctions" to be applicable, which must be "effective, proportionate and dissuasive".

Links with other provisions

This Directive sits among a number of other Community instruments which place information and consultation obligations on employers in certain cases. Article 9 of the Directive therefore states that this Directive is without prejudice to the information and consultation procedures set out in the collective redundancies Directive, the business transfers Directive, the European Works Councils Directive and any rights to information, consultation and participation set out under national legislation.

Transitional provisions

Ireland and the UK stand out as the two EU member states which do not already have a general, permanent and statutory system of information and consultation in place. In recognition of this, article 10 contains a longer implementing timetable for small companies in these countries. This clause was instrumental in steering the Council towards political agreement on the text. Thus, the scope of the Directive may be limited to:

After this date, the Directive will apply in these countries as it does elsewhere in the EU, ie to all undertakings employing at least 50 employees and all establishments employing at least 20 employees.

Transposition and final provisions

Member states are obliged to transpose the Directive by 23 March 2005. The Commission will, not later than 23 March 2007, review the application of the Directive, with a view to proposing "any necessary amendments".

The Directive entered into force on 23 March 2002, the day on which it was published in the Official Journal.

The implications of this Directive for the UK are discussed in a major new IRS/IRRU report, "Works councils for the UK? Assessing the impact of the EU employee consultation Directive". Available from IRS, price £80 (£70 IRS subscribers), tel: 020 7354 6747.