Working Time Directive under review

In March 2010, the European Commission commenced the first stage of mandatory consultation with European Union-level trade union and employers' organisations seeking views on first, a possible comprehensive review of the Working Time Directive (03/88/EC) (previously the Working Time Directive (93/104/EC)) and second, which of the Directive's provisions should be adapted, simplified or clarified to take account of developments in the length and distribution of working time since the Directive was adopted in 1993. 

The Commission's consultation document 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. 

In December 2010, the Commission published the main results of the first stage of consultation with the European social partners and commenced the second stage of mandatory consultation with them. The Commission confirmed that no replies to the first-stage consultation "called for radical changes to the current framework [of the Directive], although many proposed greater flexibility regarding its application". Accordingly, the Commission "will not pursue the option of ending common minimum requirements at EU level, in favour of regulating working time at local and/or national level". The consensus of replies to the first-stage consultation supported the view that the current working time rules require urgent change. In response, the Commission has confirmed that "it will not pursue the option of maintaining the status quo". 

The Commission is seeking views on whether it should proceed with a "focused review" concentrating on the treatment of on-call time in the workplace and the timing of daily and weekly compensatory rest where a worker is unable to take his or her minimum daily or weekly rest periods at the times stipulated by the Directive, or whether it should undertake a "comprehensive review", which could extend to a consideration of, among other things:

  • ways of improving work-life balance;
  • the definition of workers who are currently excluded from certain provisions of the Directive and ways of narrowing that definition;
  • the position of workers employed under concurrent contracts of employment with different employers;
  • ways of reducing reliance on the working time opt-out by providing more targeted forms of flexibility; and
  • the accrual of paid annual leave over successive leave years by workers on long-term sick leave. 

Responses to the consultation were requested by 28 February 2011. Following the commencement of the second stage of mandatory consultation, on 15 November 2011 the European social partners announced that they were prepared to enter into negotiations on revising the Directive. If the social partners reach an agreement, the text of that agreement can be adopted as a Directive without the need for approval from the European Parliament (under art.155 of the EU Treaty). The process is an autonomous one, which means that politicians have to stay out of it while the parties negotiate. The social partners now have nine months (from November 2011) to try to agree a Directive and the Commission has made it clear that, in the meantime, it will not be putting forward a legislative proposal of its own. 

If negotiations fail, the Commission may seek to come up with a new Directive by the traditional legislative route involving the European Parliament. However, that has been tried before. Previous attempts to revise the Working Time Directive commenced in September 2004, and subsequently collapsed in April 2009 as member states, the European Parliament, and the Commission were unable to agree on proposals to remove the working time opt-out; divide on-call time into active and inactive time; and revise the method of calculating the working time of employees covered by more than one contract of employment. The proposed removal of the opt-out was the main source of disagreement, with some member states, including the UK, insisting that the opt-out is essential. 

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