Regulating working time at EU level

In the 1970s, the idea of regulating working time was based on the idea that by reducing working time, more jobs could be created.

But there was a shift in 1989, with the adoption of the Community Social Charter, when more emphasis was put on the idea that “the completion of the internal market would lead to an improvement in the living and working conditions of workers in the EU” (C. Barnard, p.534).  The original Directive 93/104/EEC (Working Time Directive) was adopted on the basis of what is now Article 153 TFEU. Its primary goal is therefore to improve health and safety of workers. This fits very well with the Scandinavian perspective on the regulation of working time, but in other countries, it would rather fall within the scope of the rights of employed persons. Recitals 4 and 7 of the Directive confirm the emphasis put on the protection of workers’ health and safety.

We will first present briefly the essential provisions of the Directive and its weaknesses and the need for reform.

I/ The main provisions of the Working Time Directive (WTD)

The WTD sets rules on:

– A daily rest (Art.3). Each worker is entitled to at least 11 consecutive hours of daily rest.

– Breaks during the working time (Art.4). If the daily working time exceeds 6 hours, the worker is entitled to a break which should be regulated by collective agreement, or agreement between the two sides of the industry or, in case of failure, by national legislation.

– A weekly rest period (Art.5). Each worker is entitled to an uninterrupted rest period of 24 hours per week. So, added to the daily rest, it makes a 35-hours long period. There can be, however, a derogation to limit it to 24 hours.

– A maximum weekly working time (Art.6). The maximum is set at 48 working hours a week.

– An annual paid leave (Art.7). Each worker is entitled to at least 4 weeks of annual paid leave. There cannot be a monetary compensation to reduce the leave.

– The length of night work and the rights of night workers (Art.8-10). Night work shall not exceed an average of 8 hours in any 24-hour period. Night workers must benefit from regular health assessments and, where night work has a negative impact on their health, should be transferred as soon as possible to day work. Additional guarantees may be laid down by national legislation and/or practice.

– The safety and health protection of night and shift workers (Art.12).

– The pattern of work (Art.13): work should be adapted to the worker.

– The reference periods (Art.16) on which the time limitations must be averaged.

It is important to note that the WTD sets minimum protection; it does not prevent Member States to grant more favourable rules to the workers (Art.15) and it does not justify a reduction in the “general level of protection afforded to workers” (Art.23).

The Directive does not apply to some specific sectors where sectoral directives apply (Art.14). This is particularly the case in transport activities.

The WTD also allows for a number of derogations (Art.17) under the condition that the health and safety of workers are duly protected:

– When the duration of working time is not measured and/or predetermined or can be determined by the workers themselves (e.g. managing executives), there can be a derogation to the daily rest, the breaks during working time, the weekly rest period, the maximum weekly working time, the length of night work and the rules on reference periods. However, there are limitations to the derogations to the rules on reference periods (Art.19).

– Derogations to the daily rest, the breaks during working time and the weekly rest period can be adopted by means of public decision-making or collective agreements or agreements between the two sides of the industry.

– There can be derogations to the daily rest, the breaks during working time, the weekly rest period, the length of night work and the rules on reference periods in some specific cases, such as activities requiring continuity (e.g. hospitals) or activities where there is a foreseeable surge of activity (e.g. tourism). There can be an additional derogation to maximum weekly working time only for doctors in training.

– For shift workers or activities involving periods of work split over the day (e.g. cleaning), there can be derogations to the rules on daily rest and on weekly rest.

According to Article 18, there can be general derogations to Art.3, 4, 5, 8 and 16 by collective agreement or agreement between the two sides of the industry.

Art.20 sets that Art.3, 4, 5 and 8 “shall not apply to mobile workers”, i.e. a worker “employed as a member of a travelling or flying personnel”.

Finally, Article 22 sets a very important derogation: a worker may agree to renounce to the rule on maximum weekly working time of 48 hours, under some other specific conditions

II/ The weaknesses of the WTD

In the implementation and application of the WTD, several problems have arisen.

First, there was a problem specific to the UK: the differentiation made between “limits” and “entitlements”. The UK considered that employers could let workers willing to do so renounce to their entitlements. However, Advocate General Kokott disagreed with this approach in Commission v. UK (2006, Case C-484/04) and the Court agreed with her. It would be excessive “to demand that employers force their workers to claim the rest periods due to them”, but “an employer could not withdraw into a purely passive role and grant rest periods only to those workers who expressly request them and if necessary enforce them at law” (C. Barnard, p.539). So, there must be a balance…

Another problem was the interpretation of the definition of “working time” as provided in Article 2(1). The ECJ considers that the three criteria are cumulative, but the third one is interpreted more broadly… In the Simap (C-303/98, 2000), CIG (C-241/99, 2001) and Jaeger (C-151/02, 2003) cases, all concerning medical emergency services, the ECJ declared that the time spent “on-call” and on the premises of the employer were to be counted within the work time. Working time and rest time are therefore “mutually exclusive”.

Regarding the effect or sick leave and maternity leave, the ECJ considered that a worker was entitled “to take [its] annual leave during a period other than that of maternity leave” (see Gomez, case C-342/01, 2004) or sick leave (see Pereda, case C-277/08, 2009) (C. Barnard, p.544-545). Indeed, the ECJ indicated that the purposes of sick and annual leave were different (see Schultz-Hoff and Stringer, joint cases C-350 and 520/06, 2009). The ECJ nevertheless limited the right to accumulation of the periods of annual leave (see Schulte, case C-214/10, 2011).

The question of “rolled-up holiday pay” was also a debated issue before the Courts. The ECJ adopted a stricter position than the British Courts, ruling out any possibility of rolled up pay (see Robinson-Steele, case 131/04, 2006). The ECJ “also ruled out the possibility, practised by many employers, of rolling up holiday pay in weekly or monthly pay cheques” (C. Barnard, p.543).

The use of the opt-out is also monitored by the ECJ, as it requires that “any derogation […] must […] be accompanied by all the safeguards necessary to ensure that, if the worker concerned is encouraged to relinquish a social right which has been directly conferred on him by the directive, he must do so freely and with full knowledge of all the facts” (Pfeiffer, C-397/01 to 403/01, 2004).

Finally, a last problem concerns the “collective agreements or agreements between the two sides of industry” in countries “in which there is no statutory system for ensuring the conclusion of collective agreements”. In the UK, “while trade unions can enter collective agreements, worker representatives can enter workforce agreements”.

So, to assess the role of the ECJ in protecting the workers’ rights, I would say that the ECJ tends to interpret restrictively the exceptions and derogations to the rights granted by the directive. Therefore, I believe that the ECJ helped to expand the operation of worker protection. In some cases (e.g. maintaining the right to an annual leave over the end of the year where this right is supposed to be exercised; see Schultz-Hoff and Stringer), it went so far that it had to backtrack a bit (limitation in Schulte).

All these difficulties have prompted calls for reforms.

III/ Reforms projects

There was a first attempt of reforming the WTD between 2004 and 2009, but it collapsed.

A major source of discord between the EP and the Council was the opt-out to the 48-hours weekly working time. The EP wanted to limit overtime, but several MS (led by the UK) wanted to keep the opt-out to allow workers to work as much extra-time as they want and to keep flexibility within the businesses.

The two other sources of discord were on-call time and multiple contracts.

“Successive rulings by the European Court of Justice (ECJ) have classified on-call time as working time. This position was supported by a European Parliament vote on 17 December 2008. The proposals by the Commission and the Council on the issue were backward steps compared to the ECJ’s rulings, MEPs said.” (Euractiv)

“No substantive agreement on the issue of multiple contracts could be reached either. For workers covered by more than one employment contract, MEPs considered that working time should be calculated per worker and not per contract.” (Euractiv)

In 2010, the Commission issued two communications and launched a consultation of the Social Partners. According to the Commission, both the protection of workers and the flexibility for businesses are insufficient. Furthermore, the context has changed: a “general reduction in total working time”, an increase in the proportion part-time workers and “a progressive de-standardisation of individual working time, with increasing variation of working times throughout the year or the working life”. Furthermore, there was a “shift from manufacturing to services”, a “rise in productivity”, the “growth of female participation in employment”, “the increasing individualisation of lifestyles” and the improvement of “information and communication technologies”.

According to the Commission, while the primary goal should remain “the protection of workers’ health and safety”, “other goals should be considered”, such as “improving the balance between work and family life” and “the businesses’ ability to respond more flexibly  to changing external circumstances”.

One of the topic to be discussed, according to the Commission, is the “appropriateness of working time limits”, considering that “in some sectors or professions, longer hours may be considered necessary […] to ensure competitiveness, respond to seasonal fluctuations or shortages of skilled labour, or guarantee essential 24-hours public services”. The Commission notes that the use of the opt-out has increased in the recent years, especially for on-time workers. Furthermore, there is the issue of “workers with more than one contract”, who may already be working over 48 hours a week… I am in favour of keeping a Working Time limit, as it seems necessary, for me, in order to guarantee the effective implementation of other rules such as the daily rest, the breaks during the working time and the weekly rest…

Another topic put on the table by the Commission regards the way of taking into account on-call time within the working time. The Commission recalls the position of the ECJ (1 hour on-call time = 1 hour working time), but also notes the “very damaging consequences for the functioning and financing of services that need special flexibility in order to function on a 24-hour basis”. According to the Commission, “inactive periods could be calculated less than 100% as working time, proportionate to the level of attention required (the so-called equivalence system)”. Though it sounds potentially as a good idea, it is difficult to see how the level of attention and the proportionality would work… Following the first consultation, the Commission notes the proposal “to introduce a derogation, limited to sectors where continuity of service is required, which would allow periods of on-call time to be counted differently (i.e. not always on a hour-per-hour basis: the ‘equivalence’ principle) subject to certain maximum weekly limits and provided that the workers concerned are afforded appropriate protection”. “For on-call time away from the workplace, the legal position would remain as stated in SIMAP only periods spent actually responding to a call would be counted as working time, although waiting time at home could be treated more favourably under national laws or collective agreements.”

The Commission would also like to relax the rules on reference periods, by making these longer. This would help to resolve the problems of seasonal fluctuations. However, it should not lead, in my opinion, to a situation where there is an excessive amount of work during some periods of the year, which would create problems for the health and safety of workers, even if it is compensated by other periods with very few work.

Finally, the Commission also mentions the question of allowing a greater flexibility on the timing of minimum daily and weekly rest. Following the first consultation, the Commission notes that “it is recognised that more flexibility is needed for a range of specific situations. However, this should be carefully limited to situations where it is necessary for objective reasons, and should be subject to overall measures to protect the health and safety of the workers concerned”.

In the case of a broader review, the Commission suggests that “the following changes could also be considered, subject to appropriate health and safety protection where applicable:

– Scope for additional flexibility to decide working time arrangements by collective bargaining, provided that specified core requirements are satisfied,

– Derogations to allow reference periods longer than 12 months, in specific cases, by agreement between the social partners,

– Extending the reference period for averaging working time to 12 months by legislation following consultation with the social partners at the appropriate level, in those sectors or Member States where the ‘opt-out’ derogation is not in use, as part of a balanced package with other options set out below.”

Personally, I am not really in favour of an extension of the reference period, as it would increase the risk of abuses during short, but nevertheless significant period of times (which could reach a few months…).

Regarding the “work-life balance for new demographic realities”, “consideration should be given to including in the Directive:

– encouragement for social partners to conclude, at the appropriate level and without prejudice to their autonomy, agreements aimed at supporting reconciliation of work and family life,

– a provision whereby Member States, in consultation with social partners, will ensure that employers inform workers well in advance of any substantial change to the pattern of work,

– a provision for employers to examine workers’ requests for changes to their working hours and patterns, in the light of each other’s needs for flexibility, and to give reasons if refusing such requests.

Concerning “autonomous workers”, “a revised definition should provide that this derogation only applies to senior managers in the public or private sectors, and other workers with genuine and effective autonomy over both the amount and the organisation of their working time.” This seems coherent to me, as it would help to avoid that “falsely autonomous” workers do not benefit from the rights granted by the Directive.

Regarding the case of workers with multiple contracts, I agree with the Commission when it states that “it needs to be made clearer that the working time limit in the Directive applies per worker in such situations”.

The Commission also thinks of sectoral problems and of adapting the general rules to the specificities of some professions.

Concerning the opt-out, it seems that it is the lesser evil… Indeed, it appears impossible to remove it; otherwise, it is probable that several MS would oppose the directive…

Finally, about paid annual leave, I agree with the necessity of codifying the idea that “Member States may set appropriate ceilings to the accumulation of paid annual leave entitlements over successive years, once they exceed the number of weeks required to achieve the Directive’s aims of minimum rest and recuperation”.

It remains to be seen whether this reform attempt will be more successful than the previous one…

Pierre-Antoine KLETHI

Note: The book of Catherine Barnard to which I refer is EU Employment Law, 4th edition, 2012, OUP.

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