European Commission urges negotiations on working time Directive

The European Commission has issued its second consultation of the EU-level social partners on the revision of the 1993 working time Directive. It urges them to enter into negotiations on various revisions of the text, threatening to issue legislation if they do not. However, the ETUC and UNICE appear unlikely at this stage to find much common ground.

Background

On 5 January 2004 the Commission issued a first consultation document to the EU-level social partners on the revision of the 1993 working time Directive (93/104/EC) (see Commission consults on working time Directive). This consultation process follows the procedures set out in the Treaty establishing the European Community (TEC) (see box 1 for details).

This first consultation focused on two provisions of the Directive, for which a review was built into the text. These are:

• Article 17(4) on derogations from the reference period for calculating average maximum weekly working time; and
• Article 18(1)(b)(i) on the option not to apply the maximum weekly working time of 48 hours if a worker gives their individual agreement to this (known as the opt-out).

In addition, the Commission asked the social partners for their views on recent European Court of Justice (ECJ) rulings on the definition of on-call working and for their views on measures to improve compatibility between work and family life.

The consultation period ran until the end of March 2004, by which time submissions from social partner organisations and interested parties had been received by the Commission.

In general, the Commission found that both employer organisations and worker representative organisations wish to see the current text of the Directive amended. However, views on the content of any amendments differ widely. The European Trade Union Confederation (ETUC) wants to see the elimination of the opt-out and the continuation of the provision allowing the extension to 12 months of the reference period for calculating average maximum weekly working time to be possible only through collective bargaining.

In contrast, the Union of Industrial and Employers' Confederations of Europe (UNICE), representing private sector employers, would like to maintain the opt-out and allow it to be agreed collectively.

It would also like the reference period for the calculation of the average maximum working week to be 12 months in general, with a possibility of extending it beyond this.

For more details of the responses of social partner organisations to this first consultation, see box 2 .

Second consultation document

After examining all the responses received, the Commission issued a second consultation document to the EU social partners on 19 May 2004 (EIRR 365), in which it analyses the responses and sets out options for the way forward.

The Commission states at the outset that it shares the broad consensus that there is a need to modify the text of the Directive. It stresses, however, that any review should promote the fundamental objective of the Directive, which is to protect workers' health and safety.

Exemptions from the reference period for calculating working time

At present, the Directive provides for a weekly average working time of 48 hours, to be calculated over a period of four months. To enable increased flexibility, derogations from this reference period are permitted - member states may extend it to six months in some cases. Further, it may be extended to one year by collective agreement or agreement reached by the social partners. The Commission believes that the reference period should be extended to better reflect the trend present in legislation and agreements at national level.

The opt-out

The Commission notes that the opt-out is accompanied by a series of conditions intended to guarantee freedom of choice for the worker and to ensure the possibility of prohibiting or restricting any exceeding of the maximum weekly working time.

These conditions include the requirement for the employer to gain the agreement of these individuals and to keep records of their working time patterns.

Overall, the Commission states that it has "certain reservations" regarding both the national provisions implementing this Article (the UK is the only member state that has put it into general use) and its current use in practice.

It therefore states that it considers it necessary to amend the provisions of the Directive in this area "to raise the level of protection for workers compared with the present system, in the light of the experience gained in practice and the criticisms and comments made by interested parties".

It strongly encourages the social partners to engage in negotiations on this issue and says that if they do not do so, it will propose amendments based on one or more of the following approaches:

• tightening the conditions of application of the opt-out to strengthen its voluntary nature and raise the level of protection for workers. This could include the separation in time between the individual consent of the worker and the signature of the employment contract, or an obligation to review regularly the individual consent given by the employee, as well as a cap on the maximum number of hours of work permitted;
• providing for exemptions from the maximum working week only through collective agreements or agreements between the social partners;
• providing that derogations from the maximum working week would only be possible when authorised by collective agreements or agreements between the social partners. Where there is no applicable agreement and no employee representation, the individual opt-out would remain applicable under tighter conditions; and
• revising the individual opt-out, with a view to phasing it out as soon as possible. In the meantime, practical ways of tackling abuses would be identified.

The definition of working time

This area relates the recent ECJ judgments on the definition of on-call working. The Commission states that the Directive currently contains two mutually exclusive definitions: that of "working time" and that of "rest period". As there are no intermediate or combined categories, all periods are considered to be either working time or rest. It states that the ECJ's judgments on on-call working must be seen in the light of this "binary system" and therefore wonders whether this system itself is not at the root of the problem and whether a new category of working time should be added.

It strongly encourages the social partners to reach agreement on the definition of a third category of time - it suggests that this should be the inactive part of on-call time. Failing that, it states that it will propose the insertion of such a definition into the Directive, in addition to clarifications regarding compensatory rest.

The Commission is also proposing to extend the reference period for the calculation of the maximum working week unless the social partners negotiate on this issue.

Measures to reconcile work and family life

The Commission notes that the need to balance work and family life is "an all-embracing issue" that cannot be restricted to labour law or the working time issue. However, it also believes that having a say in working conditions and working time "undeniably contributes not only to a better working environment but also to meeting the needs of workers better, particularly those with family responsibilities". It is therefore of the opinion that, while this Directive may not be the right instrument for dealing with this, more could be done to encourage this objective in the text of the Directive.

Commission's conclusions

In conclusion, the Commission stresses that there is a need to revise the Directive. The main challenge here is finding the right balance between the fundamental objective of protecting health and safety, while giving European companies the flexibility needed to keep pace with changes in the economic environment. It states that there must be a clear overall approach and a set of coherent and balanced proposals. It stresses its belief that the role of the social partners in this process should be enhanced.

It therefore encourages the social partners to initiate the process provided for under Article 139 of the TEC (see box 1 ).

In accordance with this Treaty provision, the Commission requests that the social partners:

• forward an opinion or, where appropriate, a recommendation on the objectives and content of an envisaged proposal in the areas covered by this consultation; and
• notify the Commission if they intend to initiate the negotiation process provided for by the TEC.

The next steps

This consultation paper is strongly worded in that it makes it clear to the social partners that unless they solve the issues raised here, the Commission itself will step in and issue legislation. While none of the themes will be without problems, given the difference in views on the approach to take, it is the individual opt-out from the maximum working week that will undoubtedly be the cause of the most controversy.

If the Commission does go ahead and issue its own legislative proposals for a revision of the Directive, it is likely that the conditions surrounding the opt-out will be changed. Depending on the course of action it follows, this could mean at least a tightening up of the opt-out, or perhaps even phasing it out as soon as possible. This is certainly what the European Parliament is recommending. Alternatively, it may decide to make the opt-out conditional upon collective agreements.

What chances for an agreement?

The chances of the ETUC and UNICE actually reaching the negotiating table look slim at present. In a press release issued immediately after the Commission's consultation document appeared, the ETUC stated that the consultation was "an ambiguous text" and criticised the Commission for, in its view, not knowing which way to go. It was particularly critical of the Commission's views on the opt-out: "Not only does it still see the retaining of the opt-out as a legitimate possibility, it also considers to further increase the scope for companies to opt out from Regulations on maximum working time through collective bargaining."

The ETUC stated further that while it is "in favour of providing for flexibility in the application of working time Regulations by collective bargaining, plain opt-outs are unacceptable to the ETUC, which has European Parliament support in urging the phasing-out of the existing provisions, as they contradict the fundamental right enshrined in European law that each and every worker has a right to limitation of his working hours". ETUC general secretary John Monks stated that: "The next stage in this process will be crucial, to prevent that the working time Directive, which is an essential part of the social architecture of Europe, will be watered down for pure economic reasons, against the interests of health and safety and work-life balance of male and female workers in an enlarged Europe."

UNICE also immediately issued a press release in which Philippe de Buck, UNICE general secretary, stated that UNICE shares "the widespread belief that there is a need to revise the Directive without delay. Flexibility of working time is crucial for employment and competitiveness in Europe. It is not just in the interests of employers. Unfortunately, the approach sketched out in the Commission document seems to fall short of meeting the challenge". He stated further that: "Having read ETUC's press release, I see no prospect of negotiations between us."

Time will tell whether negotiations will become a feasible option. The social partners met with the employment and social affairs commissioner, Stavros Dimas, in Brussels on 17 June to talk about the revision of the Directive. Commissioner Dimas used the occasion to try to persuade the parties to embark upon discussions. If the social partners cannot negotiate amendments to the Directive, the Commission is likely to issue its own legislative proposals for revision, which are unlikely to be what any of the interested parties want.

Box 1: The consultation process Article 138 of the Treaty establishing the European Community states that the Commission, before submitting any proposals in the social policy field, must consult management and labour on the possible direction of Community action. If, after this consultation, the Commission believes that Community action is advisable, it must consult management and labour once more, this time on the content of the envisaged proposal. Management and labour may forward an opinion or recommendation to the Commission at this stage. Alternatively, they may decide to enter into negotiations under the procedures provided for under Article 139. In this case, the negotiation process may last for nine months, although this period may be extended by the negotiating parties and the Commission. Article 139 states that, if they wish, the negotiations may lead to "contractual relations", including agreements. If an agreement is reached, it should be implemented either in accordance with the procedures and practices specific to management and labour and the member states or, in the case of a broad range of social policy matters listed in Article 137, by a Council decision on a proposal from the Commission. The former process - implementation in accordance with the practices current in member states - is being used to implement the EU-level agreement on telework, reached in 2002 (see Telework agreement breaks new ground). The latter process - implementation by means of a Directive - has been used in the case of the EU-level agreements on parental leave, part-time work and fixed-term contracts.

 

Box 2: Responses to the Commission's first consultation on the revision of the working time Directive ETUC The European Trade Union Confederation (ETUC) maintains that extending the reference period for calculating weekly working time to 12 months should continue to be possible only through collective bargaining. It believes that the opt-out is in "flagrant contradiction" to the objectives and provisions of the Directive. In relation to on-call working, it believes that the Commission should provide a "lasting and long-term response" that is in line with the fundamental principles of the Directive. In relation to provisions to improve flexibility and choice for workers to adapt working time to their needs, the ETUC calls for a more elaborate framework for discussion of this, and believes that the Commission should promote social dialogue as the "main means of providing lasting and long-term solutions at national, sectoral and cross-industry level". UNICE The Union of Industrial and Employers' Confederations of Europe (UNICE), representing private sector employers, calls for a general reference period of 12 months and the possibility of extending it beyond 12 months by collective agreement. It would like to maintain the opt-out and to amend the Directive to allow it to be agreed collectively. In the area of on-call working, UNICE would like only periods of actual work during time spent on call to qualify as working time. It also states that the reconciliation of work and family would be better met through non-legislative measures and should not be dealt with by this Directive. CEEP The European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest (CEEP), which represents public sector employers, supports the extension of the reference period to 12 months through legislation, with the possibility of the social partners setting a longer period. In the case of the opt-out, CEEP believes that "the prevention and abolition of the abuses should take precedence over the deletion of the opt-out clause". With regard to on-call working, CEEP states that the Commission should introduce measures to amend the Directive to include in the definition of working time the concept of an inactive period in place of the current definition of either work or non-work. Finally, it believes that working time flexibility is important when trying to reconcile work and family life, but not related to the review of this Directive. The Commission also received responses from other cross-sector social partner organisations and sectoral employer bodies and trade unions. European Parliament The European Parliament adopted a resolution on the organisation of working time at its Plenary session in February 2004 (see European Parliament resolution on working time Directive). In this, it called on the Council and the Commission to consider an amended Directive as soon as possible. In particular, it called for the revision, with a view to the phasing-out, of the opt-out. In the meantime, it requested that the Commission identify practical ways of tackling potential or actual abuses of the opt-out, including seeking views on how best to strengthen the voluntary nature of the opt-out. Council The Council held an informal discussion on the review of the Directive at its social and employment affairs meeting on 4 March 2004 (see March Social Council). EESC The European Economic and Social Committee (EESC) is reported to be due to adopt an opinion on this issue during the summer of 2004.