New EU consultation on outstanding working time issuesFriday, December 31st, 2010
In December 2010, the European Commission, as part of its review of the EU Working Time Directive, commenced the mandatory second stage of consultation with workers’ and employers’ representatives at EU level. It also presented a detailed Report on the legal implementation of the Working Time Directive in Member States.
The second stage consultation paper asks social partners for their views on two alternative approaches based on either a narrower or a broader scope for the review. It seeks opinions on detailed options that cover key themes such as:
- on-call time
- timing of minimum rest periods
- tackling excessive working hours
- better reconciliation of work and family life and
- clarifying areas where the law appears unclear.
The Directive amending the existing Directive on Working Time has been on the table since 2005. Many Member States are in breach of the legislation as interpreted by the European Court of Justice. The UK’s opt-out from the 48-hour average working week (officially known as the “non-participation clause”) expired on 23 November 2003 but has been operated in breach of the Directive since then by the UK and by a growing number of other EU member states. Many attempts have been made by EU ministers to find a compromise agreement on, in particular, the opt-out and the treatment of on-call time since then.
The last attempt to reach a consensus was in 2008, when the European Parliament’s Employment and Social Affairs Committee voted by a large majority to adopt a set of changes that differed significantly from the position agreed by the Council of Ministers. The next stage involved discussions by a conciliation committee, made up of delegations from the Parliament and the Council in order to draw the opposing views closer. However, in April 2009, the conciliation committee decided that it was not possible to reach an agreement. The main stumbling blocks were
- the opt-out, with the United Kingdom and other member states rejecting any proposal to phase it out,
- on-call time, with the Council of Ministers wishing to see a distinction drawn between “active” and “inactive” on-call time, and
- multiple contracts, with the Parliament demanding that, for workers covered by more than one employment contract, working time should be calculated per worker and not per contract.
In its new consultation document, the Commission presents two options,
- a focused review of two key issues, namely on-call time and compensatory rest, and
- a comprehensive review of all of the key issues.
The comprehensive review proposes changes in the following areas:
- recognition that on-call time at the workplace is working time and cannot be considered as rest time, but introduce flexibility in sectors where continuity of service is required by allowing periods of on-call time to be counted differently (i.e. not always on an hour-per-hour basis) subject to certain weekly limits
- confirm the legal position that on-call time away from the workplace only includes periods actually spent responding to a call, while allowing waiting time at home to be treated more favourably under national laws or collective agreements
- new rules to clarify the timing of daily and weekly compensatory rest, including the legal position requiring missed daily rest to be taken immediately at the end of an extended work shift and before the next work period begins, and to provide flexibility where it is necessary for objective reasons
- greater flexibility for new working patterns, allowing working time arrangements to be set by collective bargaining with limits and reference periods to be extended more widely to 12 months or even more
- allow Member States to make provisions requiring employers to inform workers well in advance of any changes to their pattern of work, and to consider requests from workers to make changes to their working hours and patterns
- define more clearly the existing derogation that exempts autonomous workers from the 48-hour limit and rest periods, applying it specifically to senior managers in the public or private sectors, and to other workers with genuine and effective autonomy over both the amount and the organisation of their working time
- clarify that the working time limit applies per worker, not per contract, and make provision in legislation enforcing this requirement
- make special provision in the Directive for workers in sectors where enforcing the general rules is problematic, such as volunteer fire-fighters and where existing rules are diverse, such as different road transport mobile workers
- leave the opt-out in place but reduce the need for it in the long-term by providing more targeted forms of flexibility, such as redefining on-call time and extending the length of reference periods, and introducing measures to protect workers making use of the opt-out, such as more effective monitoring of hours worked, reducing the risk of pressure from employers, ensuring workers’ consent is given freely on an informed basis, and periodic evaluation of the need for the opt-out
- allowing Member States to restrict the number of years that paid annual leave entitlements can be accumulated in circumstances where workers cannot take their full entitlements for reasons outside of their control (such as illness).
During the second stage of the consultation, the social partners, i.e. workers’ and employers’ representatives at EU level, have until end of February 2011 to make their views known to the Commission on these different options for amending the Working Time Directive. Based on their replies, the Commission will begin preparing a legislative proposal to amend the Directive, and make a detailed impact assessment of the proposed changes. The legislative proposal could be adopted after that impact assessment is completed – this is planned for the third quarter of 2011 – and would then need to be considered and agreed by the Council and the Parliament.
However, the social partners may decide in either phase of consultation to enter into negotiations on these issues themselves. If they do so, the Commission would review the timing and content of its calendar for the proposal.
At the same time, the Commission states clearly that it will continue to use the legal instruments at its disposal in order to correct several situations where Member States do not comply with the present EU law, particularly in cases of excessive working hours which have negative effects on workers’ health and safety.