EU: Commission consults on review of Working Time Directive

Nearly a year after the failure of its previous attempt to revise the Working Time Directive, the European Commission launched a new consultation procedure on the issue in March 2010. The Commission suggests that a comprehensive review of the Directive is necessary in the light of important changes in working patterns in the EU.

On this page:
Failed attempt to revise Directive
Renewed consultations
Change in working time
Maximum weekly hours
On-call time
Flexibility in averaging weekly hours
Flexibility in timing of rest periods
Questions for consultation
Initial social partner reactions.

Failed attempt to revise Directive

In September 2004, the European Commission proposed a Directive revising the Working Time Directive (originally adopted in 1994 and now consolidated in Directive 2003/88/EC (on the EUR-Lex website)). The proposed amendments included:

• the application of new restrictions to 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;
• new rules on the treatment of "on-call time" in the light of European Court of Justice (ECJ) rulings on the issue, with the Commission proposing that only the "active" part of this time be classified as working time;
• more flexibility for member states in setting the reference period over which, on average, the maximum 48-hour week must be observed; and
• clarification of the rules on when compensatory rest awarded in the event of derogations from the Directive's provisions on daily and weekly rest must be granted.

The European Parliament gave the draft Directive a first reading in May 2005. It proposed a number of amendments, notably calling for: the entire period of on-call working, and not just the active part, to be regarded as working time; and stronger restrictions on the opt-out, followed after three years by its abolition.

Between 2005 and 2008, the Council of the EU sought unsuccessfully to reach a common position on the proposed Directive, with national Governments particularly divided on the future of the opt-out. Nevertheless, a compromise text was finally agreed - although with reservations on the part of some countries - in June 2008. The common position provided that: the opt-out should be retained, although subject to stronger safeguards and reinforced protective conditions for the workers involved; and the inactive part of on-call time should not compulsorily be treated as working time.

The Council's common position returned to the Parliament for a second reading in December 2008. MEPs did not accept the Council's text and again proposed abolishing the opt-out within three years and counting the entire period of on-call time, including any inactive part, as working time.

With the Council unable to accept the Parliament's amendments, the draft was referred to the two institutions' Conciliation Committee. In April 2009, conciliation broke down conclusively, with the Council and Parliament unable to bridge their differences on the outstanding issues, and especially the opt-out. This was the first time that conciliation had failed under the current Council-Parliament co-decision procedure.

Renewed consultations

The failure of conciliation meant that the proposed amending Directive lapsed, leaving the Commission to decide whether or not to make a further attempt to revise the EU's working time legislation. After nearly a year of discussion, and the appointment of a new Commission in February 2010, the revision process was relaunched on 23 March 2010.

Following the procedures laid down in the Treaty on the Functioning of the European Union (TFEU), the process of proposing employment law Directives starts with a two-stage consultation of EU-level trade union and employers' organisations. The Commission must first consult the social partners on the possible direction of EU action in the area in question. Then, if the Commission considers EU action advisable, it consults a second time on the content of the envisaged proposal. At that stage, the social partners can seek to negotiate a European-level agreement on the issue in question, which may substitute for EU legislation.

The first-stage consultation on working time is included in a Commission Communication (COM [2010] 106 final) to the other EU institutions on reviewing the current Directive. The Commission argues that the failure of the previous attempt to amend the Directive has left an unsatisfactory situation, with "insufficient legal clarity on how to interpret a number of issues left unresolved". One option for review of the Directive would therefore be to concentrate on the aspects that proved most problematic during the 2004-09 negotiations, and to try again to reach solutions that the Council and Parliament agree on. However, the Commission believes that this narrow approach would miss an opportunity to reassess the Directive in the light of "fundamental changes that have taken place in working patterns" and of the "prospective needs of workers, businesses and consumers in the 21st century".

The Commission therefore plans a comprehensive review of the Directive, starting with a thorough evaluation of its provisions, in order to identify current or potential issues relating to their application, and then consider options for addressing such issues.

Change in working time

According to the Commission, over the 20 years since the Working Time Directive was first proposed, fundamental changes have occurred in the world of work, with a clear impact on the overall length and distribution of working time. The key trends are:

• There has been a general reduction in total working time, with average weekly working hours in the EU falling from 39 in 1990 to 37.8 in 2006;
• Working time has become polarised between groups of workers. Part-time workers, most of them voluntary, increased their share in the EU workforce from 14% in 1992 to 18.8% in 2009. However, 10% of all employees still work more than 48 hours a week and nearly 7% work in multiple jobs.
• There has been a progressive "destandardisation" of individual working time, with increasing variation in working time throughout the year or working life, along with more flexible practices in companies (flexitime, annualised hours, time banks, time credits and so on).

These developments reflect structural changes such as: the shift from manufacturing to services; a rise in productivity due to technological progress; an increasingly competitive business environment; the growth of female participation in employment; and an increasing individualisation of lifestyles. Further, a transition from an industry-based to a knowledge-based economy means that new jobs are being created in analytical, scientific and technical occupations, and this is affecting the way in which work is organised. Improved information and communication technologies may promote more mobile and autonomous types of work.

A growing number of "knowledge workers" may have extensive autonomy over the organisation and location of their work, raising questions about the application of normal working time rules. However, the knowledge-based economy is also producing many jobs in routine services (such as call centres or data treatment), entailing repetitive tasks under close supervision. In these cases, there may be high levels of work intensity and stress, which may require regulation to protect workers' health and safety, just as in traditional industrial activities, the Commission states.

Working time management is increasingly becoming an important element of businesses' competitive strategies. Cutting costs in manufacturing and extending opening hours in services both mean increases in total production time, while adapting to variations in consumer demand and to seasonal cycles calls for more varied distribution of production time. This has resulted in new forms of working time flexibility. In the current economic crisis, working time flexibility, notably short-time working, has become a key means for many businesses to adapt to sharply declining demand.

Alongside these business-led changes, there is a growing awareness that working time flexibility can help workers to reconcile their work and private life and adapt working time to individual needs. Flexibility may also enhance equal opportunities for employment and career progress, and facilitate access to employment for disadvantaged categories. However, some forms of working time flexibility can lead to intensification of work, with effects on health and safety, worker satisfaction, organisational productivity and training opportunities.

The Commission asks whether the EU and national regulation of working time - which has traditionally pursued health and safety objectives - has kept pace with these developments, or whether reforms are needed to adapt the current rules to the needs of companies, workers and consumers in the 21st century. In the Commission's view, a comprehensive review of the regulatory framework is required.

This review should start by analysing the impact of emerging changes in working patterns on the application of the current Directive, and identifying which of its provisions need to be adapted, simplified or clarified. The Commission identifies four key issues relating to the Directive's application: 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.

Maximum weekly hours

Average weekly working hours in the EU are below the Directive's 48-hour limit and falling. However, some groups of workers continue to work longer average hours, up to 80 hours per week or more. New work patterns can make workers more autonomous and mobile, raising questions about the application or appropriateness of working time limits. Further, in some sectors or occupations, long hours may be considered necessary (in the short or even long term) to ensure competitiveness, respond to seasonal fluctuations or shortages of skilled labour, or guarantee essential 24-hour public services.

The 48-hour limit has been extended in some cases, within options allowed by the Directive, especially the exemption for "managing executives or other persons with autonomous decision-taking powers" and the individual opt-out. Use of the opt-out has increased substantially in recent years, with five member states applying it in all economic sectors and a further 10 countries using it in certain sectors, mostly those where on-call time is prevalent. Further, workers with more than one contract may work in excess of 48 hours a week for the same or different employers (the Directive's 48-hour limit applies per contract, rather than per worker).

In the debate over the 48-hour average weekly limit, the Commission reports, some parties consider that workers should not be prevented from working beyond this ceiling, if they want to earn additional income or achieve more rapid career progression. Others argue that a legal limit is necessary to protect workers' health and safety, since individual workers cannot always make free choices on working time limits, due to their "inferior bargaining position vis-à-vis employers". In addition, it is argued that long working hours are likely to adversely affect productivity, creativity and employment generation, as well as reconciliation of work and family life.

On-call time

In some sectors and occupations, working hours include periods of on-call time, where the worker is obliged to remain present at the workplace and be ready to work if called upon to do so, but is not required to remain constantly attentive, and may sleep or relax if not called upon. On-call time is particularly common in 24-hour healthcare services, residential care and emergency services, such as policing and firefighting. Levels of actual activity during on-call time vary widely between sectors and between countries. In some situations, workers have to maintain high levels of activity over long periods with little or no opportunity to rest. In others, they are very rarely called on to work, but are still subject to the constraints of remaining present at the workplace.

On-call time raises the problem of how to calculate working hours and rest periods. Some argue that long hours spent at the workplace can have detrimental effects on workers' health and safety and on the balance between work and family life, and that all on-call time at the workplace should be considered as working time. The ECJ supported this position in its rulings in the SIMAP (C-303/98), Jaeger (C-151/02) and Dellas (C-14/04) cases.

However, others assert that counting on-call periods fully as working time, while at the same time setting a 48-hour weekly limit, can seriously harm the functioning and financing of services that need special flexibility in order to function on a 24-hour basis. For example, it is claimed that in certain member states already facing shortages of some skilled medical workers, the costs of health services would increase dramatically.

Alternative options have been considered to avoid these consequences, some of which would require changes to the Directive. For example, inactive periods of on-call time at the workplace could be disregarded when calculating working time, or calculated as less than full working time, proportionate to the level of attention required.

Flexibility in averaging weekly hours

Flexibility in the distribution of hours worked is, according to the Commission, an important competitive factor, particularly for those sectors that have fluctuations in their activity cycles. The Directive already allows for some flexibility, allowing the 48-hour limit to be exceeded as long as it is observed on average over a reference period. Normally, the reference period may not exceed four months, but member states may extend it up to six months in certain activities, while collective agreements may extend it up to 12 months in any activity.

Businesses operating in sectors or countries where there is no tradition of collective bargaining, and small and medium-sized firms more generally, have raised concerns about the requirement (except in the specified activities) for a collective agreement to extend the four-month reference period. They argue that they are put at a disadvantage by this restriction and that the need for working time flexibility is not correlated with an undertaking's industrial relations model or size.

The Commission states that the current rules could be made more flexible by allowing national law to fix a reference period of up to 12 months, which would help companies to adjust opening or production times to variations in activity. However, it acknowledges that longer reference periods may be seen as encouraging long hours over a prolonged period, with undesirable effects on health and safety and on reconciliation between work and family life. "Some type of protective condition may be necessary" to avoid this, says the Commission.

Flexibility in timing of rest periods

The Directive provides for a minimum daily rest period of 11 consecutive hours, and a minimum weekly rest period of 24 hours plus the 11 hours. The Directive allows some or all of a minimum rest period to be delayed, subject to the condition that all missed minimum rest hours must be fully compensated afterwards. According to ECJ case law, such compensatory rest hours should be taken as soon as possible and, in any event, any missed daily rest should be taken immediately after an extended shift.

Some stakeholders argue that minimum daily or weekly rest periods should always be taken promptly or, at the very least, delayed as little as possible and fully compensated immediately. They point to potential health and safety risks posed by overtired workers, and to impairments in functioning capacity and productivity that can result from missed rest. However, the Commission states that greater flexibility in the timing and organisation of compensatory rest may help businesses to organise work, particularly when providing 24-hour services in remote areas, or in the face of shortages of skilled workers. In some cases, such flexibility can also help workers to reconcile work and family life, or match their individual preferences.

Questions for consultation

The Commission asks the social partners the following questions:

• How can "balanced and innovative" proposals regarding the organisation of working time be developed that move beyond the unsuccessful debates over the previous proposal to amend the Working Time Directive, and what is the partners' long-term vision for working time organisation in a "modern setting"?
• What impact do the social partners think that changes in working patterns and practices have had on the Directive's application, and have any particular provisions become obsolete, or more difficult to apply?
• What is their experience of the overall functioning of the Directive and regarding the key issues identified by the Commission?
• Do they agree with the Commission's analysis of the organisation and regulation of working time in the EU, and are there any further issues that should be added?
• Should the Commission launch an initiative to amend the Directive and, if so, do the partners agree with the proposed objectives of a review and what do they consider should be its scope?
• Apart from legislative measures, does other EU-level action merit consideration and, if so, what form of action should be taken and on which issues?
• Do the social partners wish to consider initiating a dialogue over a possible agreement on the subject?
   

   

  The failure to reach an agreement on revising the working time legislation last year does not mean the problems around the existing rules have gone away.

  László Andor,
  EU commissioner for employment, social affairs and inclusion

   

The social partners have until early May 2010 to respond to the first-stage consultation. The Commission will then examine the views expressed and decide whether or not EU action, and a second-stage social partner consultation, is advisable.

In parallel with these consultations, the Commission will carry out an extensive impact assessment, including an examination of the legal application of the Directive in the member states and a study of the "social and economic aspects that are pertinent" for a comprehensive review of the Directive.
The Commission plans to publish the results of its assessment in time to inform the EU debates on any legislative proposal.

Presenting the consultation paper, László Andor, the EU commissioner for employment, social affairs and inclusion said: "The failure to reach an agreement on revising the working time legislation last year does not mean the problems around the existing rules have gone away. We still need to find a balanced solution that addresses the real needs of workers, businesses and consumers in the 21st century. We need a comprehensive review of the rules based on a thorough impact assessment with a strong social dimension. Today we invite the social partners to reflect broadly on this crucial issue and to come forward with innovative proposals that move beyond unsuccessful debates of the past."

Initial social partner reactions

John Monks, the general secretary of the European Trade Union Confederation (ETUC) commented: "There is a clear link between long and irregular working hours and increased work-related health problems. Although the world of work has changed, this evidence has not changed since the first legislation on working time, nor since we last discussed the revision of the Working Time Directive. Protection of the health and safety of workers must therefore remain the primary goal of any review of the Working Time Directive. This is of crucial importance for all workers, but in particular where workers in the performance of their jobs can affect the lives of third parties, for instance in healthcare professions or transport."

The ETUC accuses the European Commission of allowing the "erosion" of the Working Time Directive, especially by not insisting that member states implement the ECJ rulings on on-call work. Catelene Passchier, an ETUC confederal secretary, added: "We have many case studies demonstrating the capacity of social partners at national and sectoral level to develop and agree innovative practices of organising working time. But we need clear and unambiguous European minimum standards on working time and an end to the opt-out from the Working Time Directive to provide a solid basis for negotiated solutions."

Steven D'Haeseleer, director of social affairs at BusinessEurope, the main European body representing private sector employers, said that he hoped for a "really fundamental debate" on working time in response to the Commission's initiative, taking account of "fundamental changes in the workforce" since the Directive was first adopted. He called for "a broader approach, moving away from focusing on the existing Directive to look at the level at which working time should be regulated." While the opt-out and on-call time would again be part of the debate, "it would not be wise to focus again predominantly on those issues".

This article was written by Mark Carley, European editor.

European employment policy, practice and law, April 2010