What is the working time directive?
Directive 2003/88/EC on certain aspects of the organisation of working time is a piece of health and safety legislation laying down minimum requirements designed to protect workers from the adverse effects of working excessive hours, having inadequate rest periods and leave and having to work disruptive working patterns.
It has major implications for the construction industry, and particularly the foundation sector where the specialist skills base means the workforce tends to be more mobile – and so often spend many hours travelling to and from jobsites each week.
The original Directive 93/104/EC, adopted in 1993, was amended in 2000 by Directive 2000/34/EC and the two have now been consolidated into Directive 2003/88/EC.
A new proposal for a directive, seeking to amend key aspects of the legislation, was adopted by the Commission on 22 September 2004.
Why is the existing directive being revised now?
The original directive provides for the revision within seven years of two aspects of the directive: the opt-out from the maximum working week and the provisions concerning the reference periods used to calculate it. This review was conducted last year and was extended to cover two more areas: the definition of “on-call time” following European Court of Justice (ECJ) rulings on time spent on call by health professionals, and measures to promote the work/life balance.
When it conducted its review last year, the Commission identified problems with certain aspects of the current directive.
It found some evidence that the opt-out was being abused in the UK, the only Member State which had applied the opt-out generally from the beginning.
The Commission found that firms needed more flexibility in calculating the average maximum working week in order to be able to respond more easily to fluctuations in demand or seasonal peaks in activity. It found that the current provisions concerning the reference period over which the working week is calculated needed simplifying.
The absence of a definition of on-call time in the directive caused problems. It led to Court of Justice case-law that stipulates that on-call time must be counted as working time. This has major financial and organisational implications for many Member States.
What are the main problems with the opt-out?
It appears in the UK that legislation and practice do not provide all the guarantees required under the directive. Employees are generally asked to sign the opt-out agreement at the same time as the contract of employment. This puts them under pressure to agree to opt out and undermines their freedom of choice.
The directive requires employees to keep records of the hours actually worked by employees who have opted out of the 48-hour limit but national legislation only requires that records of the opt-out agreement itself are kept.
Figures show that 33 per cent of the UK workforce have signed an opt-out but only about half that proportion ? 16 per cent – say they actually work more than 48 hours a week (compared to 15 per cent at the beginning of the 1990s).
What were the implications of the Court of Justice rulings on on-call time?
The current directive only defines “working time” and “rest time”. Member States dealt differently with the time spent on call, which is not defined in the current directive.
This led to two Court of Justice rulings seeking to clarify the issue. In the SIMAP and Jaeger cases in 2000 and 2003, the Court ruled that time spent on call by health professionals had to be counted as working time. As a result of this case-law, time spent on call by health professionals has to be regarded entirely as working time, and where appropriate as overtime, if they are required to be at their place of employment, even if they are resting.
Currently, doctors work more than 48 hours a week in most Member States if on-call time is considered entirely as working time.
Court of Justice interpretations of existing Community law are binding on all Member States. Most Member States need to adapt their national law as a result of the above rulings. The rulings affect the health sector most seriously but not exclusively. In some Member States, tens of thousands of extra medical staff would have to be recruited. Following the rulings, France, Germany and Spain applied the opt-out to their health sectors.
Why is the Commission now proposing more legislation and how were the social partners involved?
The Commission consulted the two sides of industry on the need to revise the existing directive and asked them to negotiate an agreement on amendments to it, in accordance with the Treaty (Article 137). However, the European social partners were unable to find sufficient common ground to start negotiations and declined the Commission’s invitation to do so. The new proposal nonetheless gives the social partners a bigger role in implementing key provisions of the directive and sets out the framework within which they will operate.
What are the main provisions of the current working time directive?
The Directive provides a minimum guarantee of:
- a maximum average working week (including overtime) of 48 hours (Article 6)
- a minimum daily rest period of 11 consecutive hours in every 24 (Article 3)
- breaks when the working day exceeds six hours (Article 4)
- a minimum weekly rest period of 24 hours plus the 11 hours daily rest period in every seven-day period (Article 5)
- a minimum of four weeks paid annual leave (Article 7)
- night work is restricted to an average of eight hours in any 24-hour period (Article 8)
To whom does the working time directive apply?
- to all sectors of activity, both public and private
- Air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training were excluded from the 1993 directive
- The above sectors were brought within its scope in the 2000 directive.
- All the excluded sectors except doctors in training have been covered, under national law, since 1 August 2003.
- Doctors in training have been covered since 1 August 2004. They will work a maximum week of 58 hours until 2009. From 1 August 2009 their maximum working week falls to 48 hours.
Who is exempted?
Member States may exempt three categories of worker from the directive’s key provisions: managing executives or other persons with autonomous decision-making power; family workers; and workers officiating at religious ceremonies. These are workers whose working time is not measured and/or pre-determined or can be determined by the workers.
Other categories can be exempted from the directive’s key provisions provided compensatory rest or appropriate protection is granted. These include employees who work a long way from home, or whose activities require a permanent presence or continuity of service or production, or who work in sectors which have peaks of activity. Examples include off-shore workers, security guards, journalists, emergency workers, agricultural workers, tour guides,
How is working time defined?
Working time is deemed to be “any period during which the worker is working, at the employer’s disposal and carrying out his activities or duties, in accordance with national laws and/or practice” (Article 2).
Rest time is defined as “any period which is not working time”. There is no provision under the existing directive for on-call time.
How is the maximum week calculated?
The maximum week of 48 hours is calculated as an average over a standard reference period of four months (Article 16). This gives employers flexibility to organise work patterns in accordance with the nature of the work. In certain cases, the reference period can be extended to six months, e.g. for employees who work a long way from home, security guards, journalists, postal workers, agricultural workers or transport workers. In addition, Member States can allow the reference period to be extended to up to one year, under a collective agreement (Article 18).
What is the opt-out?
Article 22 of the current directive gives Member States the option not to apply Article 6 laying down the 48-hour maximum working week, subject to certain conditions.
These conditions are:
- the employer must obtain the worker’s consent to work more than 48 hours a week
- no worker must suffer any disadvantage if he does not agree to opt-out
- the employer must keep up-to-date records of all workers who opt-out
- the records must be available to the competent authorities, which can ban or restrict hours worked in excess of the 48-hour limit if necessary for health and safety reasons.
The opt-out was negotiated by the UK when the directive was first adopted in 1993. The UK has been the only Member State to apply the opt-out on a general basis until this year. Following enlargement, two new Member States, Cyprus and Malta, are applying it on a general basis.
Luxembourg applies the opt-out to its restaurant and catering sector in order to avoid more stringent national rules on reference periods for calculating working time so that it can cope with seasonal peaks.
Following Court of Justice rulings in 2000 and 2003 that defined time spent on-call by health professionals as working time, France, Spain and Germany have applied the opt-out to their health sectors.
What will change under the new Commission proposal?
The new proposal changes the provisions regarding the opt-out, “on-call time”, the reference periods for calculating the maximum working week, and the time limits for granting compensatory rest.
Member States will only be able to apply the opt-out if it is expressly allowed under a collective agreement or an agreement between the social partners and if the individual worker consents.
If no collective agreement is applicable and there is no workers’ representation empowered, according to national rules, to negotiate an agreement (which may be the case in small and especially micro businesses), the worker’s individual consent has to be obtained by the employer.
The conditions attached to the worker’s individual consent are tightened:
- it cannot be given at the same time as the contract of employment is signed or during any probation period
- it has to be given in writing
- it is valid for a maximum of one year (renewable)
- no worker can work more than 65 hours in any week
- employers are obliged to keep records of the number of hours actually worked and to make those records available to the responsible authorities if required.
The proposal does not include a definition of “workers? representation empowered to negotiate” but leaves this to national law and/or practice. The existence of a body for information and consultation of workers, as required under other EU legislation, will not necessarily constitute workers? representation for the purposes of this proposal.
The proposal introduces a new category, “on-call time”, in addition to working time” and “rest time” and states that the inactive part of on-call time does not constitute working time within the meaning of the directive.
However, it also gives Member States the option, under national law or by collective agreement or agreement between the two sides of industry, of counting the inactive part of on-call time as working time.
“On-call time” is defined as the “period during which the worker has the obligation to be available at the workplace to intervene, at the employer’s request, to carry out his activity or duties?.
The proposal defines the “inactive part of on-call time” as the “period during which the worker is on call but is not required by his employer to carry out his activity or duties”. The inactive part of on-call time does not constitute rest time, which is counted separately.
In the proposal, if the worker is residing at the work place but is resting and not actually working, his on-call time will not be counted as working time. .At present, under the Court of Justice rulings, if the worker has to be available but is not required to be present at the workplace, this has to be considered as rest.
Time limits for compensatory rest
The limit of 72 hours is set for granting compensatory rest to workers where the compulsory rest periods are waived. (These waivers are possible for the groups of workers mentioned above who can be exempted from the directive’s key provisions). The ECJ judgments referred to above interpret the existing directive to mean that compensatory leave has to be taken immediately.
Reference periods for calculating the working week
The standard reference period over which the average working week is calculated remains four months.
However, Member States have the option, in the proposal, of extending it to one year, provided that the social partners are consulted and social dialogue is encouraged. In that case, the workers cannot work more than 65 hours in any week.
The proposal also states that the reference period can in no circumstances be longer than the duration of the employment contract.
What happens next with the proposal?
Council and Parliament have to agree the new legislation under the codecision procedure.
When will the new directive take effect?
That depends on how long it takes Parliament and Council to reach agreement. It could be adopted by late 2005 or early 2006. After that, Member States will have two years to put national laws implementing the directive on their statute books.