| Author (Person) | Davies, Eric | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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| Publisher | ProQuest Information and Learning | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Series Title | In Focus | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Series Details | 19.1.04 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Publication Date | 19/01/2004 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Content Type | News, Overview, Topic Guide | In Focus | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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The European Commission has issued a 10-year review of the 'Working Time Directive' and has invited interested parties to contribute to a consultation on how the Directive might be revised. The Commission is particularly concerned about the implementation of an 'opt-out' provision which allows individual workers to waive the rights which the Directive gives them. Although so far used almost exclusively by the United Kingdom, the opt-out has attracted attention from other Member States which see it as a way of avoiding more rigorous interpretations of the Directive, following decisions by the European Court of Justice. The European Commissioner for Employment and Social Affairs, Anna Diamantopoulou, commented that the opt-out measures 'are not properly implemented. We need to find a solution that balances the interests of all concerned. We also need to consider how best to define working time, to avoid what is currently a flexible legislative framework becoming one that creates unnecessary burdens.' Background Formally entitled 'Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time', the Working Time Directive required Member States to introduce implementing legislation by 23 November 1996. Introduced on the grounds of protecting workers' health and safety, the Directive gives them the right to a maximum 48 hour working week (including overtime), plus rest periods and breaks and a minimum of four weeks paid leave per year. The 48 hours are calculated over a period of at least four months, extended in some cases to six or even 12 months. Certain categories of people are excluded from the scope of the Directive: managing executives or other persons with autonomous decision-making powers, family workers, and those officiating at religious ceremonies in churches or religious communities. Not all activities were covered by the 1993 Directive. An amendment adopted in 2000 (to be implemented in most cases by 1 August 2003) encompassed workers in additional areas, including air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and trainee doctors. During discussions on the original Directive, the United Kingdom negotiated a provision allowing Member States to introduce legislation allowing individual workers to give up the right to work a maximum 48 hour week set out elsewhere in the Directive. The 'opt-out' Article is supposed to be implemented only if certain conditions are met: a worker must agree to work more than 48 hours a week and anyone deciding not to opt out must not be disadvantaged; an employer must keep records of the hours worked by individuals who agree to opt out and make them available to the relevant authorities. Although not intended to be for the exclusive use of one Member State, Article 18 was until recently used only by the UK. Despite concerns on the part of other Member States that the UK derives an competitive advantage from the opt-out, it has been the impact of two decisions by the European Court of Justice that has put the issue under the spotlight. The 1993 Directive defined 'working time' and 'rest period', but crucially did not address the issue of whether time spent 'on call' should be classified as the former or the latter. Member States were thus left to decide the issue for themselves. However, the European Court of Justice issued two judgements in 2000 and 2003 concerning the classification of 'on call', finding in both cases that time spent on call should be classified as working time. The two cases concerned - SIMAP and Jaeger - both involved staff in the health care sector. The ECJ's decisions have significant financial and staffing implications, primarily - though not exclusively - for the sector. (The ECJ's judgements were echoed by a decision in the UK that nine female wardens living in sheltered accommodation should have the 76 hours they were 'on call' classified as 'work' - see Women win 'on call' battle). The 2000 Directive, broadens the scope of the 1993 Directive to encompass trainee doctors - thus adding even more to Member States' concerns. Current and future Member States have thus come to see Article 18 as a way of avoiding such problems, by enabling staff to voluntarily work longer hours. France, Germany, The Netherlands and Spain have all taken steps to introduce such legislation into their health sectors. Cyprus, Malta and Slovenia have to some extent also introduced the opt-out, with Estonia, Hungary, Latvia and Lithuania reportedly also interested in implementing it. (The Union's May 2004 enlargement will see the addition of countries in which longer working hours are more common than in the current 15 Member States. A report published by the European Foundation for the Improvement of Living and Working Conditions, Working conditions in the acceding and candidate countries, shows that some 38% of employees and the self-employed in those countries work than 45 hours each week - compared to 21% in the EU 15. The Foundation also highlights information on working hours presented in the Commission's report Employment in Europe 2003, which shows that 'standard weekly working hours are between one to four hours above the EU average' - see Quality of work and employment.) Having been asked to produce a 10-year review of the Working Time Directive, the European Commission has taken the opportunity to address the issue of the opt-out. In its Communication ... concerning the re-exam of Directive 93/104/EC concerning certain aspects of the organization of working time, the Commission seeks to:
Launching the consultation, Commissioner Diamantopoulou apparently accused UK employers of 'abusing the law on working time' (Financial Times: In defence of the opt-out, however, the UK Government has stated 'that more than a million people will lose out on paid overtime if they had to stop working available extra hours' (BBC: Union knocks 'long hours culture') and the Confederation of British Industry that: 'UK employees have more choice about the hours they work than those almost anywhere else in Europe. They value that flexibility and so do employers' (Review must not lead to removal of UK Working Time opt-out). A business view expressed in the Financial Times is that 'People who work more than 48 hours generally do so out of choice: for the money, the career boost, or simply for the love of it' ( The Commission's decision to launch a consultation rather than set out proposals for change was greeted as a disappointment by the European Trade Union Confederation. The ETUC wants the Commission 'to come up with proposals that challenge outmoded forms of work organisation', remove the individual opt-out, and 'provide for adequate and balanced solutions with regard to on-call working time, in so far as a proper assessment of the problems arising from the implementation of the EC-judgements leads to the need for adaptation of working time regulations' (The European Trade Union Confederation (ETUC) regrets the lack of proposals of the Commission concerning the working time Directive). Further information within European Sources Online European Sources Online: European Voice
European Sources Online: Financial Times
European Sources Online: In Focus
Further information can be seen in these external links: EU Institutions European Commission DG Employment and Social Affairs DG Press and Communication Press releases
Memos
European Court of Justice European Foundation for the Improvement of Living and Working Conditions
Representative organisations / pressure groups Confederation of British Industry
European Trade Union Confederation GMB
Joseph Rowntree Foundation
Media organisations BBC News Online
Eric Davies Background and reporting on the week's main stories in the European Union and the wider Europe. |
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| Subject Categories | Employment and Social Affairs | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
