Report assesses EU-wide implementation of Working Time Directive

The European Commission published an assessment of the implementation of the Working Time Directive in December 2010. It found problems with national legislation in areas such as the 48-hour maximum working week and opt-outs from it, on-call time, rest periods, annual leave and workers with multiple employment contracts.

On this page:
Five-yearly report
Limits on working time
On-call time
The opt-out
Compensatory rest
Doctors in training
Public sector workers
Workers with more than one employment contract
Annual leave
Night work
National assessments
Conclusions.

Five-yearly report

The Working Time Directive (originally adopted in 1993 and now consolidated in Directive 2003/88/EC) (on the Europa website) provides for the European Commission to draw up a five-yearly report on the Directive's application at national level. The latest report (COM [2010] 802 final) was published on 21 December 2010. It is based on reports from the 27 EU member states (including the views of the social partners at national level), reports from the social partners at European level, and information from other sources, such as independent expert reports.

The report identifies nine findings of general relevance, examined below. The Commission notes that these issues are closely inter-related and that any assessment of compliance with the Directive must take this into account.

Limits on working time

The Directive provides that average weekly working time (including overtime) must not exceed 48 hours per week. In general, this limit has been "satisfactorily" transposed, the Commission states, and many member states lay down more protective standards. However, the report notes a number of possible breaches of the 48-hour maximum working week in particular countries:

• under sector-specific legislation in Austria, doctors may be required to work an average of 60 hours per week, without their consent;
• in France, unclear provisions on the length of doctors' working time seem to have led to a practice whereby the regular working time rosters of doctors in public hospitals can exceed the 48-hour limit;
   

   

  The report notes a number of possible breaches of the Directive's rules on the 48-hour maximum working week and reference periods for averaging weekly hours.

   
• Hungary allows an average working time of 60 to 72 hours per week, subject to agreement by the parties concerned, in "standby jobs" (those where a substantial part of working time is inactive or involves significantly less work than normal for the employee), and it is not clear that such contracts fall within the Directive's "opt-out" exemption; and
• in several countries, the application of rules relating to on-call time, doctors in training or public sector workers raise issues about conformity with the working time limit.

When calculating limits on weekly working time, the Directive allows hours to be averaged over a reference period, permitting longer hours to be worked in some weeks, provided that correspondingly shorter hours are worked in other weeks. Normally, the reference period cannot exceed four months but it may be extended by law to six months in certain activities, and by collective bargaining to 12 months in any activity.

In general, the reference period rules have been satisfactorily applied, but some member states do not appear to comply fully. Bulgaria and Germany allow a six-month reference period for all activities, while Germany, Hungary, Poland and Spain allow a 12-month reference period without a collective agreement.

On-call time

The European Court of Justice (ECJ) has ruled - notably in the SIMAP (C-303/98), Jaeger (C-151/02) and Dellas (C-14/04) cases - that on-call time when a worker is required to remain at the workplace, ready to carry out his or her duties if requested to do so, must be fully counted as working time for the purposes of the Directive. This applies both to periods where the worker is working in response to a call ("active" on-call time), and to periods where the worker is allowed to rest at the workplace while waiting for a call ("inactive" on-call time).

A number of member states have made significant changes to their legislation or practice to bring it closer to what is required by the ECJ rulings. Examples include the Czech Republic, France, Germany, Hungary, the Netherlands, Poland (for certain sectors), the Slovak Republic and the UK. In 11 countries, these changes have included introducing the individual opt-out from the 48-hour maximum working week.

On-call time at the workplace is now wholly treated as working time under national law in Cyprus, the Czech Republic, Estonia, Italy, Latvia, Lithuania, Malta, the Netherlands and the UK. This is also the general position, with some relatively limited sectoral exceptions, in Austria and Hungary. On-call time at the workplace is entirely treated as working time in the private sector (but not the whole of the public sector) in the Slovak Republic and Spain. On-call time at the workplace in the public health sector is now fully treated as working time in France, Poland, the Slovak Republic and Spain.

However, in a significant number of member states, on-call time at the workplace is still not fully treated as working time:

• There is no legal requirement or practice of treating active on-call time as working time in Ireland (as a general rule) or in Greece (for doctors in public health services).
• Inactive on-call time at the workplace is, in general, not fully counted as working time by national law or collective agreements in Denmark, Greece and Ireland. This is also the case (except in specific sectors) in Poland. It is not fully counted as working time in specific parts of the public sector in Greece, Slovenia and Spain.
• In Belgium, Finland and Sweden, national law generally treats inactive on-call time as working time, but has allowed exemptions through collective agreements, which often do not comply with the ECJ rulings. In France, many sectoral collective agreements provide that inactive periods of on-call time at the workplace are only partially counted as working time.
• Compliance regarding on-call time is unclear in Bulgaria, Romania, Slovenia (other than in some public services) and in Spain (with regard to some areas of the public sector).

The opt-out

The Directive gives member states the option of exempting workers from the maximum average weekly working time of 48 hours, while respecting the general principles of health and safety protection. Member states that take up this option should ensure that:

• employers cannot require a worker to work more than 48 hours a week (on average over a reference period) without first obtaining the worker's agreement to perform such work;
• workers cannot be subjected to any detriment by their employer because they are not willing to agree to work more than 48 hours a week;
• the employer must keep up-to-date records of all workers who carry out such work;
• the records must be placed at the disposal of the competent authorities, which may, for health and safety reasons, prohibit or restrict the possibility of exceeding the maximum working week; and
• the employer must provide the competent authorities at their request with information on cases in which workers have agreed to perform work exceeding 48 hours per week.

The UK was alone in allowing the opt-out in all sectors of the economy when implementing the Directive, following its adoption in 1993. It was still the only country that had made use of the opt-out in 2000. However, since then, many more member states have taken up this option, either generally or for specific sectors, in numerous cases as part of their effort to comply with ECJ rulings on on-call time. The current situation is as follows:

• five member states (Bulgaria, Cyprus, Estonia, Malta and the UK) allow use of the opt-out in all sectors;
• 11 member states (Belgium, the Czech Republic, France, Germany, Hungary, Latvia, the Netherlands, Poland, the Slovak Republic, Slovenia and Spain) allow (or are currently introducing) a more limited use of the opt-out, restricted to specific sectors (especially healthcare) or to jobs that make extensive use of on-call time; and
• 11 member states (Austria, Denmark, Finland, Greece, Ireland, Italy, Lithuania, Luxembourg, Portugal, Romania and Sweden) do not allow any use of the opt-out.

Where member states use the opt-out, there is wide variation in the accompanying protective conditions. For example, some member states limit the average weekly hours of "opted-out" workers (ranging from 51 hours in Spain to 72 hours including on-call time in Hungary). Germany and the Netherlands require a collective agreement, as well as the consent of the individual worker, for an opt-out to be valid.

Only Germany, Latvia and Malta impose a clear obligation for the employer to record the working hours of opted-out workers, and only the Czech Republic and Slovak Republic oblige the employer to notify the labour authorities when the opt-out is used. Germany requires specific health and safety measures, and the Netherlands requires the social partners to first consider whether or not the need for an opt-out could be avoided by organising the work differently.

Most member states do not seem to provide for any monitoring or recording of the working time of opted-out workers. This situation, the report argues, deprives policymakers, the member states and the Commission of the basic information needed to examine how far opted-out employees (as well as co-workers or clients) may be exposed to risks caused by excessive working time. The Commission is also concerned that, in some member states, the Directive's health and safety objectives may not be respected, and the requirement for a worker's prior voluntary consent to opt out may not be properly applied.

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 a minimum rest period to be delayed or shortened, as long as the worker receives an extra rest period of equivalent length at another time to compensate for the missed rest ("equivalent compensatory rest"). The Directive does not allow minimum rests to be missed altogether, except in exceptional cases where it is objectively impossible to provide equivalent compensatory rest, and where the workers concerned receive appropriate alternative protection. The ECJ has ruled that compensatory rest should be granted promptly, in the period immediately following that in which the rest was missed.

The Commission report finds that the Directive's core requirements on minimum daily and weekly rest periods have, in general, been satisfactorily transposed in the member states. However, there are a number of difficulties relating to exemptions introduced by the member states, which go beyond what the Directive permits. There are three main problems, as follows:

• Austria, Belgium, Greece, Hungary and Latvia exclude certain workers from the right to rest periods. This applies, for example, to residential schools and defence forces in Belgium, and to occasional workers, public sector schools and the defence forces in Hungary.
• Belgium, Bulgaria, Estonia, Hungary and Latvia allow, in a wide range of activities or sectors, exemptions from the rules on rest periods that do not require equivalent compensatory rest. This is also the case for on-call work in Germany, the public sector in Portugal and health services in Romania.
• Nine member states have no general legally binding norm on the timing of compensatory rest. These are Austria (as regards weekly rest), Cyprus, Denmark, France, Greece, Ireland, Italy, Luxembourg and Malta. In Belgium, Germany, and Latvia, there is no legally binding norm for some sectors or situations. In Austria (as regards daily rest), Belgium (public sector), Denmark (under some collective agreements), Finland, Hungary, Poland (for some sectors), Portugal (public sector), the Slovak Republic, Slovenia, and Spain, compensatory rest must be provided within a specified period, but this period can involve a much longer delay than required by ECJ case law.

Doctors in training

A 2000 amendment to the Working Time Directive provided that doctors in training should be covered by the Directive's rules on rest periods and weekly working time limits. These rules were applied gradually to this group in the period up until 31 July 2009.

The Commission states that this change has led to significant improvements in health and safety protection in a number of member states where no minimum rest periods or working time limits previously applied to doctors in training. However, the situation is not yet satisfactory. In Greece, doctors in training can still be required to miss minimum rest periods and work excessive hours.

Ireland has not applied its legislation transposing the changes, and a substantial number of doctors in training are still working more than 60 hours per week on average without receiving minimum daily rests. The French national rules on doctors in training still do not appear to set any effective upper limit to their working time.

Public sector workers

The Directive applies to the public sector, with a limited exception for certain activities, such as the armed forces, police or some activities of civil protection services. The ECJ has held that this exemption must be limited to exceptional circumstances, such as disasters, attacks or serious accidents, and that the normal activities of the workers concerned are covered by the Directive.

In general, member states have transposed the Directive in the public sector, but several countries have excluded certain groups of workers. The Directive has not been transposed in respect of: the armed forces and police in Cyprus, Ireland and Italy; the police (Guardia Civil) and many other public sector workers, including those in civil protection services, in Spain; and doctors working in the public sector in Greece. Italy has not transposed in respect of the emergency services and there are exemptions for doctors in public health services, court and prison staff. Also, the exclusion of employees in libraries, museums and state archaeological sites seems to exceed what the Directive allows.

Workers with more than one employment contract

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. The choice is between applying the limits "per worker" (adding up the hours worked for all employers) or "per contract" (applying the limits to each employment relationship separately). The Commission believes that, as far as possible, the Directive must be applied per worker.

National practice varies considerably on this point. Fourteen member states (Austria, Bulgaria, Cyprus, Estonia, France, Germany, Greece, Ireland, Italy, Lithuania, Luxembourg, the Netherlands, Slovenia and the UK) apply the Directive per worker, while 11 countries (the Czech Republic, Denmark, Hungary, Latvia, Malta, Poland, Portugal, Romania, the Slovak Republic, Spain and Sweden) apply it per contract. Belgium and Finland adopt an intermediate position.

Annual leave

The Directive's right to paid annual leave of at least four weeks seems, in general, to have been satisfactorily transposed. The main problems relate to delays, and to the exhaustion of the right to paid leave.

In some member states (such as Belgium and Estonia), national law can require new employees to wait up to one year before they can take any paid annual leave. In a number of countries (not identified in the report), the right to paid annual leave is lost at the end of a leave year or of a carryover period, even if the worker has not had an opportunity to take it for reasons beyond their control, such as illness. This, the Commission says, is not compatible with the Directive

Night work

The Directive therefore provides stronger protection for night workers. They cannot work for more than eight hours per day on average, and never more than eight hours per day if the work is particularly hazardous or stressful. Exemptions are possible, by legislation or collective agreement, if the night worker receives equivalent compensatory rest.

Overall, the rules regarding night work have been transposed satisfactorily. However, in Hungary, the daily limit on night work does not seem to have been transposed. The special limit for working time in particularly hazardous or stressful night work does not seem to be transposed fully in Estonia or at all in Italy, while in Spain it can be exceeded. In Estonia, Latvia, Romania, Ireland and Italy, particularly hazardous or stressful night work does not seem to be clearly defined, which risks making any limit ineffective.

National assessments

In their implementation reports, most member states considered that transposing the Directive had produced a positive overall impact. However, 11 governments stated that the ECJ rulings on on-call time and immediate compensatory rest had, or would have, a significant negative impact, creating practical difficulties for the organisation of working time, particularly in 24-hour services such as healthcare or firefighting. Fourteen member states called, as an urgent priority, for changes to the Directive regarding on-call time, more flexible reference periods or the timing of compensatory rest.

In their assessments, trade unions underlined the Directive's importance for European social policy and a continuing need for common minimum standards in this area at EU level. Protection against excessive working hours should not be reduced, exemptions tightened up, the opt-out phased out, protective conditions more strictly applied and overall enforcement improved.

Employers generally saw the Directive as going beyond what was needed to protect workers' health and safety. They called for greater simplicity and flexibility in national transposition and for urgent changes to the Directive to allow longer reference periods, and regarding on-call time and the timing of compensatory rest.

National reports from 11 member states, along with European-level trade unions, expressed strong concerns about the effectiveness of national-level monitoring and enforcement of the Directive, particularly in specific sectors. The main issues were:

• excess working time and missed minimum rests in public hospitals, particularly regarding on-call time by doctors;
• employers that do not observe working time limits, reference periods or minimum daily rests or keep proper records of excess working time;
• employers that do not provide annual leave entitlements within the year;
• national rules that transpose the Directive in an unclear or impractical way; and
• the unclear scope of the provision that allows member states to exclude "autonomous workers" from many of the Directive's rules.

Employers' organisations generally considered enforcement and monitoring to be satisfactory, and in some countries felt that monitoring imposed excessive regulatory burdens on small and medium-sized enterprises and on companies that comply with the law.

Conclusions

The Commission concludes that, in general terms, a large majority of employees in the EU work under working time rules that respect the Directive. In many cases, national rules afford greater protection than required under the Directive. However, many member states have allowed the use of the opt-out since 2000, with 11 doing so to manage their current difficulties regarding on-call time and compensatory rest in 24-hour services.

Problems remain with the implementation of some core elements of the Directive, as interpreted by the ECJ, such as:

• the definition of working time (including on-call time) and the rules on equivalent compensatory rest, particularly in services operating on a 24- hours-a-day, seven-days-a-week basis;
• the situation of workers with multiple contracts;
• the situation of specific groups of workers (particularly those in public defence and security services, and autonomous workers); and
• the lack of proper monitoring or enforcement of the conditions attached to the opt-out, in many of the member states that allow its use.

On the same day as it published the implementation report, the Commission launched consultations of EU-level trade union and employers' organisations over a set of proposals for amendments to the Directive. The Commission's suggestions draw heavily on the findings of its evaluation of implementation, seeking change in areas such as on-call time, compensatory rest, the opt-out, multiple contracts, annual leave and sector-specific problems. The Commission also proposes change in some of the areas highlighted by national Governments and the social partners, such as autonomous workers and greater flexibility in reference periods.

In addition, on the basis of the implementation report, the Commission says that it will:

• assess the Directive's overall impact on workers' health and safety;
• address national laws or practices that result in workers being obliged to work excessive hours or without adequate rest; and
• support member states' efforts to improve their implementation.

This article was written by Mark Carley, international editor.

International policy, practice and law, February 2011.