European Commission sets out options for revision of Working Time Directive

The European Commission launched a new consultation on review of the Working Time Directive in December 2010, suggesting a range of amendments in areas such as on-call time, compensatory rest, greater flexibility, annual leave and work-life balance. However, the Commission proposes retaining the opt-out from the 48-hour maximum working week.

On this page:
Failure of first attempt at revision
First-stage consultation
Second-stage consultation
Focused review
On-call time
Compensatory rest
Comprehensive review
The opt-out
Greater flexibility
Work-life balance
Autonomous workers
Multiple contracts
Specific sectoral problems
Paid annual leave
Other issues
Questions to social partners
Next steps.

Failure of first attempt at revision

The Working Time Directive (originally adopted in 1993 and now consolidated in Directive 2003/88/EC) (on the Europa website) sets out minimum EU-wide rules on various aspects of the organisation of working time, aimed at protecting workers' health and safety. As well as limiting workers' average weekly working time to 48 hours (with a number of possible exemptions), the Directive sets minimum daily and weekly rest periods and minimum paid annual leave, as well as dealing with issues such as night work, shift work and rest breaks.

In September 2004, the European Commission proposed a Directive revising the Working Time Directive. The proposal was subject to co-decision between the European Parliament and the Council of the EU. The views of the two institutions differed sharply on a number of points (as did those of the national Governments represented in the Council) and, after more than four years of debate and a failed attempt at conciliation, they reached a final deadlock in April 2009. The proposed amending Directive therefore lapsed.

The two key issues on which the Parliament and Council could not agree were as follows:

• The European Court of Justice (ECJ) has found in a series of rulings - notably in the SIMAP (C-303/98), Jaeger (C-151/02) and Dellas (C-14/04) cases - that on-call work or duties performed by workers, when they are required to be present at their workplace and ready to work if called upon to do so, should be regarded as working time under the Directive. The Commission proposed amending the Directive so that only the "active" part of this time would be classified as working time. The Council supported this position, but the Parliament wanted the entire period of on-call time, including any "inactive" part, to be considered as working time (although it conceded that inactive on-call periods could be calculated differently for the purposes of complying with the maximum working week).
• The Directive gives member states the option of exempting workers from the maximum average weekly working time of 48 hours if a worker agrees to this individually. The Commission proposed applying new restrictions to this "opt-out" and the Council agreed that it should be subject to stronger safeguards, closer monitoring and reinforced protective conditions for the workers involved. However, the Parliament was in favour of total abolition of the opt-out within a fixed timeframe.

First-stage consultation

In the Commission's view, the failure of the first attempt to amend the Directive in 2009 left an unsatisfactory situation, with "insufficient legal clarity on how to interpret a number of issues left unresolved". It therefore decided to try again.

Under arts.154 and 155 of 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. If an agreement is reached, it may be implemented by an EU directive, instead of the Commission itself proposing legislation on the subject concerned.

In March 2010, the Commission launched a first-stage consultation of the EU-level social partners on review of the Working Time Directive. The Commission proposed a comprehensive review of the Directive, to take account of developments in the length and distribution of working time that have occurred since the Directive was adopted in 1993. The review should, the Commission argued, start by analysing the impact of these 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 identified four key issues to be addressed: 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.

Second-stage consultation

On 21 December 2010, the European Commission moved to the second stage of consultation on reviewing the Working Time Directive. It has concluded from the social partners' responses to the first-stage consultation, and from its own examination of the Directive's implementation in the member states, that "changes to the current working time rules are urgently needed".

The consultation paper (contained in Communication COM[2010]801/3) reports a high degree of consensus that EU working time rules should allow greater flexibility for the social partners concerned to negotiate on the details of implementation at the appropriate level. Some organisations responding to the first-stage consultation also consider that the EU rules should be clearer, simpler, and enforced in a way that protects key health and safety concerns more effectively, while reducing any unnecessary administrative burdens (especially for small and medium-sized enterprises) and reinforcing competitiveness.

However, the Commission states, the opinions of the EU-level social partners diverge on the "main factors that should decide what changes are made to working time rules". Therefore, it has not been possible to find a consensus on the priorities for revision, or on the content of any future amended Directive. As a result, the Commission now wants the social partners to consider two options: a "focused" review of the Directive or a more comprehensive set of changes dealing with matters highlighted by the social partners in their responses to the first-stage consultation.

Focused review

The focused review suggested by the Commission would deal only with two issues that need to be resolved as a result of ECJ case law. These are on-call time and compensatory rest when workers are unable to take their minimum rest periods at the times stipulated by the Directive.

These issues are particularly significant in public services that need to provide continuity of service around the clock, such as public healthcare, residential care, firefighting and emergency services. The Commission wants to find "an appropriate EU common framework that would allow for negotiated solutions at local or sectoral level, supporting both the protection of workers' and users' health and safety and the provision of high-quality services". The Commission also suggests that on-call time could be dealt with by negotiations between EU-level trade union and employers' organisations in the sectors particularly affected by the issue, if the relevant social partners so wish.

On-call time

The Commission suggests that a "balanced solution" to the treatment of on-call time could start with recognition of the principle that all on-call time, when the worker is required to be available to the employer at the workplace in order to provide his or her services in case of need, is working time for the purposes of the Directive, and cannot be considered as rest time. This would maintain the principles established by the ECJ rulings on the subject.

However, the Commission proposes introducing a derogation, limited to sectors where continuity of service is required, which would allow periods of on-call time to be counted differently. The on-call time would not be counted as full hours of work, for the purposes of calculating the worker's working time (they could, for example, be counted as 50% of normal working time). This derogation would be subject to maximum weekly limits and the workers concerned would have to be afforded appropriate protection. The social partners would be given flexibility to find solutions at local or sectoral level and identify the most appropriate method for counting on-call time. Under this approach, no new distinction between "active" and "inactive" periods of on-call time would be required.

Compensatory rest

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' daily rest. 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.

The Commission argues that new provisions need to be introduced to clarify the timing of daily and weekly compensatory rest, especially in the light of the ECJ rulings, although it does not make any specific proposals. The Commission believes that more flexibility is needed to cover a range of specific situations, but that such flexibility should be limited to situations where it is necessary for objective reasons, and subject to measures to protect the health and safety of the workers concerned.

Comprehensive review

The "comprehensive review" option would deal with a number of other possible changes to the Directive as well as on-call time and compensatory rest. This option would allow the review to take more fully into account changing working patterns and trends and to "look at the health and safety issues raised by excessive working hours in a more holistic way". It would also deal with some of the issues identified by the social partners in the first-stage consultation.

The key additional issues covered by the comprehensive review would be: the individual opt-out from the 48-hour maximum working week; greater flexibility in working patterns; work-life balance; autonomous workers; multiple contracts; specific sectoral problems; and paid annual leave.

The opt-out

On the highly divisive issue of whether or not to maintain the individual opt-out from the 48-hour average maximum working week, the Commission notes a widespread and rapid proliferation of use of the opt-out among the EU member states. In 2000, the UK was the only member state to make use of the opt-out, but 16 out of 27 countries now do so. In many cases, countries have started to use the opt-out to deal with the impact of the ECJ rulings that on-call time should be treated as working time. The Commission also states that there are very variable standards of protection and monitoring of "opted-out" workers in the member states.

The Commission states that it "does not seem realistic to ask all these member states to refrain from using this derogation, without ensuring feasible alternative solutions". The future use of the opt-out in on-call services will depend on how public services absorb the changes introduced by the review of the Directive regarding on-call time and compensatory rest. The Commission also believes that other opportunities for flexibility introduced by the revision of the Directive may discourage wider use of the opt-out, such as an extension of the reference period for averaging weekly working time.

The Commission therefore concludes that it "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 reopen a debate on its abolition in which no consensus appears possible between the social partners or between the co-legislators".

However, the Commission suggests reinforcing the protection of workers who accept the opt-out by: ensuring effective monitoring of excess hours; reducing the risk of pressure from the employer; and ensuring that individual workers give the necessary consent freely and on an informed basis. The revised Directive should also provide a mechanism for effective periodic evaluation of the opt-out.

Greater flexibility

The Commission argues that EU rules should respond to a continuing trend towards more flexible forms of work organisation and individualised working hours. There should be "well-targeted and sustainable" flexibility in working time rules, which would boost productivity and competitiveness while also ensuring more effective health and safety protection. The consultation paper suggests several changes, subject to appropriate health and safety protection.

In general, the Commission proposes scope for additional flexibility to decide working time arrangements through collective bargaining, provided that core requirements are met. It also suggests changes to the rules governing reference periods. The Directive currently allows the 48-hour weekly working time 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. The Commission now suggests:

• allowing reference periods longer than 12 months, in specific cases, by agreement between the social partners; and
• allowing member states to extend the reference period to 12 months by legislation, following consultation with the social partners, in those sectors or member states where the 48-hour opt-out is not used.

Work-life balance

The Commission suggests a number of amendments to the Directive to reflect changes such as the increasing participation in work of women and older people, the fact that both partners in a relationship often work, sometimes at different hours and on different days, and the challenges posed by care of children and the elderly. To promote work-life balance, the consultation paper suggests including in the Directive:

• encouragement for social partners to conclude agreements aimed at supporting reconciliation of work and family life;
• a provision whereby member states, in consultation with social partners, would ensure that employers inform workers well in advance of any substantial change to the pattern of work; and
• a provision requiring employers to examine workers' requests for changes to their working hours and patterns, in the light of both parties' needs for flexibility, and to give reasons if they refuse such requests.

Autonomous workers

The current Directive allows member states to exclude from the rules on maximum weekly hours, minimum rest periods/breaks and reference periods cases where, on account of the specific characteristics of the activity concerned, the duration of working time is not measured and/or predetermined, or can be determined by the workers themselves. This applies particularly in cases such as "managing executives or other persons with autonomous decision-taking powers".

The Commission argues that there is a need to define this exemption more clearly, "both to respond to changing work patterns which allow for relatively autonomous working without clear time boundaries, and also to avoid abuse". The revised definition should limit the exemption to senior managers and other workers with "genuine and effective autonomy" over both the amount and the organisation of their working time.

Multiple contracts

The Directive does not specify how its working time limits should be applied in the case of workers who have two or more employment relationships at the same time, with different employers or the same employer. Some member states apply the limits "per worker" (adding up the hours worked for all employers) while others do so "per contract" (applying the limits to each employment relationship separately).

The Commission believes that the Directive must be applied per worker, given its aim of protecting health and safety, and that this needs to be made clearer. Member states should also put in place effective mechanisms to enforce the Directive's provisions on a per-worker basis.

Specific sectoral problems

The Commission underlines that, under EU law, all workers with an "objectively defined employment relationship" fall within the scope of the Directive. However, it suggests examining the situations of particular groups such as volunteer firefighters, to whom it is difficult to apply general rules, as they are considered as workers under national law in some member states but not in others. The Commission also believes that the specific situation of certain mobile workers in road transport may deserve special attention, with possible greater harmonisation of working time rules for this group.

Paid annual leave

The Directive provides that workers are entitled to paid annual leave of at least four weeks. ECJ rulings - notably in the Schultz-Hoff (C-350/06) and Stringer (C-520/06) cases - have established that workers who are absent from work for reasons outside their control, such as sickness, are still entitled to paid annual leave in respect of that period.

In the light of the case law, the Commission believes that there is a lack of clarity as to whether or not a worker on long-term sick leave can accumulate paid annual leave entitlements over successive years. As it considers that unlimited accumulation would be problematic and go beyond the Directive's aims, the Commission suggests an amendment to the Directive that makes it clear that member states may set "appropriate ceilings" on the accumulation of leave entitlements over successive years.

Other issues

The Commission argues that the amendments it suggests to the Working Time Directive would result in "better regulation". They would codify a number of important ECJ decisions and clarify several points on which there is uncertainty, resulting in "clearer, simpler, more transparent and accessible regulation". The Commission also states that the existing text of the Directive is difficult to read and confusingly structured, with a number of obsolete and overlapping provisions.

The Commission also expresses concern about the effective enforcement of working time standards and is ready to support better cooperation and exchanges of good practices between national authorities and between social partners, for example by establishing an EU-level committee of experts on working time.

Questions to social partners

The second-stage consultation document asks EU-level trade union and employers' organisations the following questions:

• Should changes to EU working time rules be limited to the issues of on-call time and compensatory rest, or should they address a wider range of issues, such as some or all of those listed in the consultation document?
• Do they consider that the options set out in the consultation document regarding on-call time and compensatory rest, and some or all of the options regarding other issues, could provide an acceptable overall framework for addressing the concerns set out in the social partners' responses to the first-stage consultation?
• Are the EU social partners, at cross-industry or sectoral level, willing to enter into negotiations on all or some of the issues raised in the document with a view to concluding an agreement that would make it possible to amend the Directive by using the possibilities provided under art.155 of the TFEU (ie through implementing this agreement by means of a Directive)?

Next steps

The EU-level social partners have until 28 February 2011 to respond to the second-stage consultation. If they decide to open negotiations over an agreement on amending the Working Time Directive, the Commission will suspend work on the issue and the social partners will have nine months to reach a deal (this period may be extended by agreement with the Commission). If the partners do not decide to negotiate, the Commission will issue a draft amending Directive, along with a detailed impact assessment covering economic and social aspects. This is scheduled for the third quarter of 2011, if the social partners do not negotiate.

The cross-industry social partners are: the European Trade Union Confederation (ETUC), plus the Eurocadres/CEC liaison committee, which represents managerial and professional staff unions; BusinessEurope (private sector employers); Ueapme (small and medium-sized enterprises; and Ceep (public services employers). In their responses to the first-stage consultation, the employers' organisations indicated a degree of openness to negotiate over revision of the Working Time Directive, but the ETUC said that the employers' positions would have to move significantly closer to its own before it would consider negotiations.

The responses to the first-stage consultation revealed that all the cross-industry social partners agree on the need to review the Directive, but that there are significant differences between employers and unions regarding the scope and objectives of the review. For example, BusinessEurope wants to deal with the implications of the ECJ rulings on on-call time and paid annual leave, and thinks that it would be useful to extend the reference period for averaging weekly maximum hours. However, it believes that no other issues should be covered by the review and insists on retaining the opt-out. By contrast, the ETUC wants the Directive to be strengthened, notably by ending the opt-out and enforcing fully the ECJ rulings that on-call time at the workplace should be considered as working time.

Given these divergent positions, the prospects of social partner negotiations on amendments to the Working Time Directive seem relatively weak at present and, should negotiations occur, it is hard to see how any substantial agreement could be reached. The ETUC has already expressed its disappointment with many of the ideas set out in the Commission's second-stage consultation document.

This article was written by Mark Carley, international editor.

International policy, practice and law, February 2011.