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Update April 2013
The Commission is currently working on a new proposal for the Revision of the Working Time Directive.
Under the EU’s current Working Time Directive (2003/88/EC), each Member State must ensure that every worker is entitled to:
• a limit to weekly working time, which must not exceed 48 hours on average, including any overtime
• a minimum daily rest period, of 11 consecutive hours in every 24
• a rest break during working time, if the worker is on duty for longer than six hours
• a minimum weekly rest period of 24 uninterrupted hours for each seven-day period, which is added to the 11 hours' daily rest
• paid annual leave, of at least four weeks per year
• extra protection in the case of night work (for example, average working hours must not exceed 8 hours per 24-hour period; night workers must not perform heavy or dangerous work for longer than 8 hours in any 24-hour period; there should be a right to free health assessments and in certain situations, to transfer to day work).
The review of the directive entailed a 2012 second stage consultation with the social partners which represent the employers’ associations and trade unions. At the EU level the former is represented formally by BUSINESSEUROPE (private firms), CEEP (public employers) and UEAPME (small businesses). Workers are voiced by ETUC the European Trade Union Confederation. European social partners participate actively to shape the EU debate on various issues regarding employment and social affairs.
The talks among the social partners collapsed on 14 December as the Social partners could not find an agreement on the Commission’s proposal. According to the ETUC there is a tight link between long and irregular working hours and health problems related to work. The protection of the health and safety of workers must therefore remain the prime objective of any revision of the directive. From the opposite side the employers’ stated that they have made substantial and concrete proposals to solve the crucial issue of on-call time and its link - in some countries - with the use of the opt out, which allows Member States to derogate from the 48h weekly working time limit. They also indicated that they remain ready to examine proposals from ETUC, in particular with regard to the latest employers’ proposal to which no counterproposal has been tabled.
Based on its first stage consultation and impact assessment, the Commission is now expected to release a new proposal on the revision of the Working Time Directive by early summer 2013.
Update February 2012
The social partners have now held two formal meetings in their bid to find a formula for revising the directive that will satisfy employers and workers alike. They have nine months in which to reach an agreement.
The European employers' organisation, BusinessEurope, is negotiating on behalf of private sector employers. It is focussing on the following issues:
• On-call time - Rulings by the European Court of Justice (ECJ) on the current directive have decreed that on-call time spent at the workplace should be regarded as working time even if workers are resting and not working. BusinessEurope believes that on-call time should be regarded as working-time only if actually worked.
• The continuation of the opt-out from the 48-hour week. Member states are currently allowed to offer workers the chance to opt out of the maximum average 48-hour week and work longer if they wish. 16 countries now make use of these powers. BusinessEurope wants to retain the opt-out.
• Other ECJ rulings on paid annual leave and sick leave, which BusinessEurope maintains have created problems and costs for companies, and could be detrimental to workers' interests.
Update December 2011
The social partners' discussions on revising this directive are now expected to begin on 8th December.
The social partners have formally notified László Andor, the EC commissioner responsible for employment and social affairs policy, of their intention to start negotiations. The treaties allow nine months for negotiations among social partners - this could mean that the results of these discussions are not known until September 2012.
Update October 2011
Speaking at a conference in Brussels, a Business Europe representative emphasised the importance attached by European employers to the issues of on-call time, sick leave and the opt-out. Business Europe represents national associations of employers across the EU.
Update August 2011
Indications are that the the positions of the social partners - employers and unions - remain opposed on the future of this directive. The two sides are expected to decide by the end of June whether they wish to enter into formal negotiations on a possible revision of the directive.
Update June 2011
Indications are that the the positions of the social partners - employers and unions - remain opposed on the future of this directive. The two sides are expected to decide by the end of June whether they wish to enter into formal negotiations on a possible revision of the present rules.
If the social partners do negotiate, the hope is that they will reach agreement on a new text which can be submitted to the Council (member states) for ratification as a revised directive. If they decide not to negotiate - or if their negotiations fail - it will be left to the European Commission to put forward new proposals for discussion using the standard procedure with the EU institutions (Parliament, Council etc.).
Update April 2011
The second round of consultation with social partners concluded at the end of February. There is no further news yet as to the outcome of this consultation or whether, as mentioned in the January newsletter, the social partners are looking to take on the task of updating the directive themselves.
Update February 2011
As predicted in the December edition of this newsletter, the Commission has started a second round of consultation on the future of this directive.
This consultation is aimed particularly at the EU's social partners, but other interested organisations are also free to take part. The deadline for responses is the end of February and publication of a new legislative proposal is planned for the third quarter of the year.
To remind you: the social partners are European federations/associations which have formal recognition as part of the European 'social dialogue' (a mechanism created by the EU treaties to promote dialogue between employers and trades unions).
Why this new consultation?
It is intended to build on the results of the 2010 consultation which invited social partners' comments on the current directive and ways of updating EU working-time rules. It sets out two possible options for the future:
A review concentrating solely on the questions of on-call time and compensatory rest.
- On-call time - the issue is the extent to which time spent on call (whether worked or not) is treated as working time. This issue has been the subject of rulings by the European Court of Justice (ECJ) in recent years.
- Compensatory rest - or, specifically, the timing of daily and weekly rest periods that compensate for minimum rest periods missed through work. Also addressed by the ECJ.
A more comprehensive set of changes dealing with on-call time, compensatory rest and the following issues:
- Greater flexibility in working patterns - eg extending the reference period used to calculate average working time in some (unspecified) sectors; more scope for collective bargaining in deciding working-time arrangements.
- Work-life balance.
- Autonomous workers - currently, senior managers/workers who control the organisation and length of their working time may be exempted from working-time rules. The EC suggests that clearer definitions are needed in deciding who can be covered by these exemptions.
- Multiple contracts - refers to workers who have concurrent contracts with different employers or, occasionally, with the same employer. The EC wants to clarify the rules governing these.
- The scope of the directive - defining the concept of 'worker' and how, for example, unpaid volunteers should be covered.
- Opt-out - the provision for workers to agree, voluntarily, to work longer than the maximum average working week of 48 hours specified in the current directive. It is the main reason for the failure of the Commission's earlier working-time proposal in 2009 when the Parliament and Council were unable to agree on its future. Many member states are keen to retain it; MEPs want to end it completely. The Commission appears now to be saying that the opt-out should be retained and hoping, as it says this, that new flexibilities in the directive will reduce the need for it.
- Paid annual leave - dealing with the lack of clarity on annual leave entitlement for workers on long-term sick leave.
- Better regulation - rewriting the directive to take account of all these changes rather than retaining the current one, introducing an amending one and referring to the ECJ judgements.
- Better enforcement - should there be an EU committee of working-time 'experts'?
Social partners may also propose legislation
Social partners also have the possibility - as set out in the EU treaties - to negotiate among themselves and come up with their own agreed plan for revising the directive. Recent conflicting statements by employers' and workers' representatives suggest, however, that there is not enough common ground between the two sides for such negotiations to succeed or even to begin.
Update December 2010
A second phase of consultation on the future of this directive is likely to begin soon. The first consultation was held earlier this year and led to the commissioning, at the request of the EU's social partners, of a new impact assessment of the current directive. This assessment should be completed any time now.
[The social partners are European federations/associations which are consulted as part of the European 'social dialogue', a mechanism created by the EU treaties to promote dialogue between employers and trades unions.]
The four priority issues being examined by the Commission and the social partners are unchanged:
- On-call time - the extent to which time spent on call (whether worked or not) is treated as working time.
- The opt-out from the maximum average working week of 48 hours.
- The reference period used to calculate the length of the working week.
- The timing of daily and weekly rest periods.
One final point - we are still a very long way away from the publication of a new draft working-time directive, and even further away from its eventual implementation. The IAAPA team in Brussels will keep members informed of developments.
Update May 2010
The European Commission (EC) is consulting its social partners on the future of the EU's working-time directive. The consultation period closed on 19th May, and it is almost certain that the outcome will be a decision to draft a new proposal which, following a second consultation with the social partners, could be published early in 2011.
The consultation document identifies four priority issues which, in the EC's opinion, need to be considered in the debate on the future of the directive. These are:
- On-call time - the extent to which on-call time (whether worked or not) is treated as working time.
- The opt-out from the maximum average working week of 48 hours.
- The reference period used to calculate the length of the working week.
- The timing of daily and weekly rest periods.
The new consultation follows the failure of the European Parliament and Council (member states) to reach agreement on the previous reform proposal. The failure of this proposal means that a brand new one is needed if the current directive, which dates from 2003, is to be revised.
The social partners are cross-sector bodies representing private- and public-sector employers, and trade unions. The EU treaties require the EC to consult them before making any proposals in the field of social policy.
Update March 2010
Work has just begun on a new attempt to revise the controversial directive. It is hoped that a draft new directive will be ready by the end of the year and that agreement on the new text will be reached by the end of 2011.
Discussions are still at a very early stage, involving debate between employers' and union representatives in Brussels (the 'social partners'). The Commission is also carrying out a new impact assessment. If all of this goes according to plan, the drafting of the new proposal should be able to start in the summer.
Following publication, the scrutiny process in the Council (member states) and the European Parliament will begin once again.
The new initiative follows last year's failure by the member states and the European Parliament to agree on the text proposed by the European Commission in 2004.
The difficulties experienced with this text suggest that the target date of late 2011 for a new directive may be rather optimistic. Much will depend on how the new proposal deals with the question of the opt-out from the 48-hour working week (a hugely important issue in the UK particularly, but not just there) and the question of on-call time counting as working time.
Update May 2009
There are to be no changes to the working-time directive in the near future. After five years of debate, the proposal to revise it has failed to complete its passage through the European Parliament and Council (the institution representing the member states).
The conciliation committee set up by the Parliament and the Council was unable to reach agreement by the time of its last meeting on 27th April. This is the first time in ten years that a conciliation committee has failed. In this parliamentary term alone (2004 to 2009), all 24 other such committees have succeeded.
The main stumbling block was the opt out mechanism, the part of the directive that member states can use to allow workers to opt out of the 48-hour maximum average working week. The Council refused to agree to the Parliament's demands that a date be set for this to be phased out. The Parliament would accept nothing less than an agreement to bring the opt out to an end.
There was, however, less dispute on the question of whether or not time spent on call by workers should be regarded as working time. The European Parliament had insisted that all on-call time, even the time not worked (inactive on-call time), should count as working time. This was in line with judgements made by the European Court of Justice (ECJ) in 2000 and 2003. For its part, the Council had advocated legislating to ensure that inactive on-call time would not count as working time unless individual member states decided to view it that way.
It is likely that nothing will happen in the immediate future. It will fall to the new Commission to consider whether and how to revise the working-time directive. If there is indeed a proposal, the whole legislative process starts again.
The Commission must also decide what to do on the question of on-call time in the meantime. The ECJ judgements already have legal effect and member states should be implementing them. If any governments do not do so, the Commission could, in theory at least, consider starting legal proceedings against them. Some MEPs are in favour of this, but whether officials would want to in the current circumstances is debatable.
In the meantime, increasing numbers of member states are implementing the opt out as a way of reducing the impact of the ECJ on-call rulings. Fifteen have done this already and two more may follow suit. Workers who opt out of the 48-hour week may work an absolute maximum of 78 hours per week. The additional hours allow employers more flexibility in managing the time that their workers - those who wish to opt out - are on call.
Update March 2009
Member states have agreed that they are unable to accept all of the amendments adopted by the European Parliament at its meeting on 17th December. Both institutions have, therefore, agreed to start discussions aimed at negotiating an acceptable compromise.
These discussions will form part of what is known as the conciliation procedure. In essence, this means the creation of a conciliation committee with members drawn equally from the Parliament and the Council (member states). In this case, 27 MEPs will negotiate with 27 representatives of the Employment, Social Policy, Health and Consumer Affairs Council (one for each EU country) with Commission officials on hand to advise them.
If the committee does agree on a compromise text, this will be referred back to the full Parliament and the Employment, Social Policy, Health and Consumer Affairs Council for ratification - which, incidentally, is not automatic.
Informal discussions between MEPs and member states have started already; the first formal meeting of the conciliation committee took place Tuesday, 17th March. Further meetings are quite possible, as are further informal discussions together or by each delegation on its own.
The aim is for the Parliament to vote formally at the last plenary session before it is dissolved and new elections are held across Europe in June. This plenary will be held in the first week of May.
The main sticking points are the continuation of the opt-out provisions in the directive and the extent to which time spent on call by workers is classified as working time. It seems that there is scope for compromise on on-call time. On the question of the opt-out provisions (which, if implemented by member states, allow workers to opt out of the 48-hour maximum average working week), compromise looks much less likely. These provisions are used particularly, but not only, in the United Kingdom.
If the conciliation procedure fails, the proposal falls and the existing working-time directive remains in force.
Update December 2008
The European Parliament voted December 17 on its second reading of the proposal for a revised working-time directive. This directive is the legislation that introduced a maximum average working week of 48 hours across Europe.
The MEPs (Members of the European Parliament) voted on two major changes in the existing legislation:
→ Ending the system that allows workers to opt out of the maximum 48-hour week. This opt-out is applied most widely in the UK, but is also applied elsewhere.
→ Counting all time spent on call by workers as working time, regardless of whether or not their services are actually needed.
Many employers' organisations have been lobbying against these two changes, saying that their introduction would deprive businesses of much needed flexibility in the way they organise the working time of their staff.
Their concerns are reflected in the common position of national governments agreed at a meeting of the EU's Employment, Social Policy, Health and Consumer Affairs Council in September. Marking the end of a stalemate that had lasted for some years, the Council voted by a small majority to:
→ Support the continued application of the opt out, while tightening the conditions that it operates under and introducing safeguards intended to protect workers from being compelled to opt out against their will.
→ Divide on-call time into "active" and "inactive" periods. Active on-call time - in other words, the time actually worked - would always be regarded as working time. Inactive on-call time would be classified as working time only if national legislation provided for this; it would not count towards the rest periods prescribed by the current directive (and which will not be changing).
The European Parliament's Employment and Social Affairs Committee have voiced strong objections to the Council's common position and urged the plenary session of the Parliament to vote against them, and in fact with their vote on 17 December, MEPs confirmed the deletion of the opt-out and the treatment of inactive on-call time as full working time.
MEPs have stressed that this is a matter of workers' health and safety and not merely one of employment policy. They have argued that the suggested changes, which include a proposal to calculate the 48-hour week over a reference period of twelve months (instead of the current four), offer employers sufficient flexibility in managing their staff.
It is currently unclear what will be the fate of the revised working time directive.