EU: Commission announces legislative plans for 2011

The European Commission's legislative plans for 2011 include: renewed attempts to revise the Working Time Directive; an initiative to improve the implementation of the Posted Workers Directive; a draft Directive on work-related musculoskeletal disorders; and consultations that may lead to draft Directives on paternity and carers' leave, and second-hand tobacco smoke at work.

On this page:
Revision of Working Time Directive
Posted Workers Directive
Paternity and carers' leave
Environmental tobacco smoke at work
Work-related musculoskeletal disorders
Employee involvement
Other planned initiatives.

Revision of Working Time Directive

In 2004, the Commission proposed a Directive amending the Working Time Directive (originally adopted in 1993 and now consolidated in Directive 2003/88/EC). The revision of the existing Directive had to be agreed by the Council of the EU and the European Parliament. Despite lengthy and complex negotiations and attempted conciliation, the two institutions were unable to reach agreement, and the draft amending Directive lapsed in 2009. The key issues of contention included:

• the future of the "opt-out" - the option for member states not to apply the Directive's maximum average weekly working time of 48 hours if a worker agrees to this individually; and
• whether on-call time at the workplace (when a worker is obliged to be present and ready to work if called upon) should be treated as working time, fully or partially.

In March 2010, the Commission decided to launch a new attempt to revise the Working Time Directive. It is obliged (under arts. 154 and 155 of the Treaty on the Functioning of the European Union) to consult EU-level trade union and employers' organisations on all plans for employment legislation, in a two-stage process, seeking their views and giving them a chance to negotiate an agreement on the issue in question. The Commission therefore initiated a first-stage consultation of the social partners, asking for their opinions on the direction of possible EU action on working time.

The consultation document suggested a comprehensive review of the Working Time Directive, aimed at identifying which of its provisions need to be adapted, simplified or clarified to take account of developments in the length and distribution of working time that have occurred since the Directive was originally adopted in 1993. The Commission identified four key issues: maximum weekly working hours; on-call time; flexibility in the averaging of weekly hours; and flexibility in the timing of minimum daily and weekly rest periods.

The social partners gave their responses in June, with little indication of any consensus between them. The European Trade Union Confederation (ETUC) argued that the Directive should be strengthened and called for the abolition of the opt-out, and for on-call time at the workplace to be considered as working time, in line with European Court of Justice (ECJ) rulings on the topic. BusinessEurope, for private sector employers, argued that revision of the Directive should mainly address the on-call work issue and continue to ensure the possibility of the opt-out.

The Commission plans to launch the second round of social partner consultations in late December 2010, this time asking them in more detail about the possible content of a draft Directive amending the Working Time Directive, and giving them the opportunity to negotiate an agreement on the subject. Any such agreement could be given legal force by a Directive, and would forestall the Commission from issuing its own legislative proposal.

At this stage, it seems unlikely that the social partners will seek to negotiate an accord on revision of the Directive. Indeed, in its response to the first round of consultations, the ETUC said that it was not considering initiating a dialogue with EU-level employers' organisations on review or revision of the Directive, given their differing positions. The Commission appears to believe that no agreement will be reached and, in its 2011 work programme, states that it will issue a new draft amending Directive in the third quarter of the year. This proposal will "adapt the Directive to the new realities created by the evolution of working patterns" and "clarify the implementation of the Directive in particular as regards the problem of on-call time". The scope of the revision will be determined taking into account the results of the consultation of the social partners.

Posted Workers Directive

This initiative was promised by José Manuel Barroso, the President of the European Commission, in 2009. It responds to a long-running controversy over the Posted Workers Directive, which gives workers sent by their employer on a temporary basis to carry out work in another member state the protection of the basic employment rights applicable in the country to which they are posted. A series of ECJ rulings since 2007 have interpreted the Directive in a restrictive way, especially with regard to the role of collective agreements in setting employment rights for posted workers, the ability of member states to exceed the standards laid down in the Directive and the right of trade unions to take industrial action in this area. Unions and some politicians see the ECJ judgments as distorting the original purpose of the Directive and prioritising the economic freedoms of businesses over workers' rights, and have been campaigning for the Directive to be amended to restore the balance.

The Commission is considering a number of options for the forthcoming legislative initiative. These include:

• a broad, wide-ranging review of the Posted Workers Directive, to rebalance the relationship between the freedom of businesses to provide cross-border services and the rights of posted workers, perhaps providing for full equal treatment of posted workers with workers in the country to which they are posted;
• a specific Directive or Regulation on the enforcement of the Posted Workers Directive, laying down detailed provisions on cooperation between national authorities, the exchange of relevant information between the member states and/or social partners, sanctions and opportunities for posted workers to better defend their rights, with a statement stressing the respect of workers' collective rights and the role of the social partners; or
• a Regulation setting general rules for dealing with obstacles to the free cross-border provision of services and recognising the exercise of fundamental rights such as the right to strike.

The first option seems to be the least likely, as member state Governments would probably not be able to reach a consensus on a wholesale revision and strengthening of the Directive and, even if they did, the European Parliament would be unlikely to support any such compromise. The Commission is currently studying the impact of the various options and will hold a public consultation, including the social partners, during 2011. The social partners have already jointly examined the various ECJ judgments on the Posted Workers Directive, with their analysis (issued in March 2010) revealing "wide divergences on the fundamentals" between them, according to the Commission.

Paternity and carers' leave

During 2011, the Commission is provisionally planning to hold first- and second-stage consultations of the social partners on "reconciliation between work, family and private life". It had previously consulted the social partners on this issue in 2006-2007 and suggested the introduction of EU-wide entitlements to paternity leave, adoption leave and leave to care for an elderly or sick family member; a strengthening of the maternity leave provisions of the Pregnant Workers Directive (92/85/EEC); and a revision of the social partners' 1995 EU-level agreement on parental leave (implemented by Directive 96/34/EC).

The consultations resulted in the social partners amending their parental leave agreement in June 2009 (with the revisions implemented by Directive 2010/18/EU). The changes included measures to promote adoption leave. Further, the Commission in October 2008 issued a draft Directive amending the Pregnant Workers Directive, which included increased maternity leave.

Neither the social partners' agreement nor the Commission's legislative proposal dealt with paternity leave or carers' leave. The Commission therefore wants to launch a new round of consultations in 2011 on further legislative measures to improve work-life balance, including paternity and carers' leave (referred to as "filial leave"). The aims are to increase female employment rates, given that women bear the main responsibilities for caring for children and other dependants, and to tackle demographic challenges. Depending on the outcome of the consultation, the Commission may issue a legislative proposal on reconciliation, including on paternity and carers' leave, in 2012.

The draft Directive revising the Pregnant Workers Directive reached first reading stage in the European Parliament in October 2010. The version of the proposed Directive approved by Parliament includes a right to two weeks' paid paternity leave. If the Directive is adopted in the form supported by Parliament, this would remove the need for a consultation on paternity leave. However, the amendments to the Pregnant Workers Directive must be agreed by the Council as well as the Parliament, and it seems unlikely that member state Governments will reach consensus among themselves on a new right to paternity leave. The Commission opposes the inclusion of paternity leave in the Pregnant Workers Directive, as this would exceed the Directive's health and safety rationale.

Environmental tobacco smoke at work

A first-stage consultation was launched in 2008. BusinessEurope opposed new EU legislation in this area and the ETUC supported the idea, suggesting that a second round of consultations is unlikely to lead to negotiations on the issue. If no negotiations occur, the Commission will consider proposing a Directive and/or issuing non-binding guidance on the subject.

Work-related musculoskeletal disorders

The Commission consulted the social partners in 2004 and 2007 on the issue of EU action to prevent work-related musculoskeletal disorders. As a result of these consultations, it has decided not to propose new EU rules, but instead to integrate into a single Directive the existing "fragmented" provisions on musculoskeletal disorders found in two Directives:

• Directive 90/269/EEC on the minimum health and safety requirements for the manual handling of loads where there is a risk particularly of back injury to workers; and
• Directive 90/270/EEC on the minimum safety and health requirements for work with display screen equipment.

The Commission will issue a draft integrated Directive in 2011.

Employee involvement

EU Regulation no.2157/2001 created the option of the European Company (also known as Societas Europaea, or SE), a form of company that operates on a Europe-wide basis and is governed by EU law directly applicable in all member states, rather than national law. The Regulation was accompanied by a 2001 Directive (2001/86/EC) setting out the rules on employee involvement to apply to SEs. The Directive provides for negotiations between management and employee representatives in each SE over the information and consultation arrangements to apply, plus employee representation on the SE's board in some cases.

The Commission has been reviewing the SE Regulation during 2010 and in 2011 it is provisionally planning to launch a first-stage social partner consultation on a possible revision of the SE employee involvement Directive. The main aim of any revision would be to "simplify" the arrangements for employee representation in SEs. A legislative proposal may follow in 2012.

The SE option is mainly open to public limited companies. To allow cooperatives, other types of organisation and individuals to operate on a European scale in a similar way, a Regulation (no.1435/2003) adopted in 2003 created the European Cooperative Society. As with SEs, an accompanying Directive (2003/72/EC) laid down employee involvement rules. In 2011, the Commission is planning a first-stage social partner consultation on possible revision of this Directive.

Other planned initiatives

During the year, the Commission plans to propose amendments to several employment law Directives with a view to including seafaring workers within their scope and giving seafarers the same level of employment rights as onshore workers. A number of Directives - such as those on information and consultation, collective redundancies and transfers of undertakings - exclude some, or all, seafaring workers from their scope, or allow member states to do so. The Commission will propose amendments that either include seafarers in these Directives' scope or provide for special treatment of seafarers so as to ensure an equivalent level of protection. The Commission held social partner consultations on this issue in 2007.

Non-legislative initiatives planned by the Commission in 2011 include:

• a White Paper on pensions (in the third quarter), following up consultations over a Green Paper published in July 2010, aimed at reconsidering the "fragmented European framework of policy coordination and regulation" in this area and enabling the EU to support and complement member states' efforts to deliver adequate and sustainable pensions in the context of an ageing population;
• a "new competences initiative" seeking to develop a "key competences" approach in the fields of vocational training, adult learning and higher education, looking especially at assessment and validation and the development of a "common language on competences between the worlds of education/training and of work", and including proposals for a "European skills passport";
• a Recommendation on the promotion and validation of informal and non-formal learning (part of the Commission's September 2010 "Youth on the Move" initiative), addressing how national qualifications frameworks can facilitate this approach; and
• a Green Paper on possible reform of the Directive (2005/36/EC) on the mutual recognition of professional qualifications between member states.

This article was written by Mark Carley, European editor.

European employment policy, practice and law, December 2010