Jorma Rusanen
Senior Policy Adviser
The revision of
the Working
Time Directive
The trade unions have long demanded
that a limit be set on working time. The
regulation of working hours is fundamental
to our society and lies at the heart of
Social Europe. The European Union has
acknowledged this principle since its
foundation, notably by the European
Social Charter in 1961 and the Charter of
Fundamental Rights in 2000, which with
the entry into force of the Lisbon Treaty
has become legally binding.
A longstanding
demand
trade
union
Setting a limit of the number of hours workers
can be forced to work has been one of the
oldest and most fundamental trade union
demands, dating back to the struggles of the
1880s and earlier. In 1919, the very first ILO
convention on working conditions established
the eight-hour working day and the 48-hour
week.
The European Social Charter commits
member states to ensure “reasonable daily
and weekly working hours”, and to a
progressive reduction in the length of the
working week. Article 31 of the Charter of
Fundamental Rights declares that “every
worker has the right to limitation of
maximum working hours”. In its second
paragraph, it says “every worker has the
right to limitation of maximum working
hours, to daily and weekly rest and to an
annual period of paid leave.
The Working Time Directive
The 1993 Working Time Directive (93/104/EC)
took an important step forward by setting the
maximum working week at 48 hours, as well
as laying down the framework for daily rest,
weekly rest and annual leave periods as well
as night work, shift work and patterns of work.
The amendments extended the scope of
directive
(2000/34/EC).
Later
on
the
amendments were consolidated (2003/88/EC).
This working time legislation is not only as a
basic cornerstone of workers’ well being, but
also as an indispensable feature of the social
dimension of the internal market. The
directive’s main provisions cover:

Maximum weekly working time of 48 hours on
average, including overtime;

A minimum rest period of 11 hours in each 24,
and one day in each week;

A rest break if the working day is longer than
six hours;

A maximum of eight hours’ night work, on
average, in each 24;

At least four weeks’ paid annual leave.
The opt-out (Article 22)
However, the directive contains an opt-out
clause, largely at the demand of the UK
government, which enables employers to get
round the maximum 48-hour working week
under certain conditions.
Since 1993, the opt-out has been widely
abused, particularly in the UK, with workers
being pressured to sign away their legal rights
whether or not they work more than 48 hours a
week. Furthermore, a growing number of
Member States have recently been turning to
the opt-out to get around working time
restrictions, in areas such as health services.
The revision process
Working Time Directive
of
the
There are two main reasons the EU is
currently reviewing this key legislation. The
directive gave the obligation for the Council to
re-examine before 23 November 2003 both the
opt-out and the 12 months reference period
and to decide what action to take. Both
provisions were seen in 1993 as very far
reaching concessions that needed to be
evaluated. So, the Commission has been
under a legal obligation to re-examine these
two derogations within seven years of the
directive’s implementation. However, by the
time the review was due, the European Court
of Justice (ECJ) judgments about on-call work
became another main reason for revision.
1
Jorma Rusanen
Senior Policy Adviser
The first revision process
In 2004, the Commission put forward
proposals that, far from improving on the
existing law, actually represented several
steps backwards, undermining workers’
protection and weakening trade unions’ ability
to bargain on their members’ behalf
[COM(2004)607,
amended
proposal
COM(2005)246]. In the revision process the
European Parliament, in its first and second
readings, supported by the trade unions,
adopted with a convincing majority balanced
proposals on all the issues on the revision
board. The Council, however, mainly did not
take any of these proposals on table.
The European trade union movement has
insisted now for nine years on the following
key points: end to the opt-out, respect of oncall work as working time, equivalent
compensatory rest being fundamental, no
prolongation of reference periods without
sufficient safeguards, work-life balance and
that maximum working time be counted per
worker and not per contract.
According to the European Trade Union
Confederation (ETUC), the main goal of the
Working Time Directive is, and must remain,
the protection of workers against the health
and safety risks of long and irregular working
hours. In the revision, the WTD should be
strengthened to deal with new risks, and
workers equipped with stronger rights and
instruments to adapt working time to their
needs. However, any initiative to amend the
Directive must first of all put an end to the optout and respect the ECJ’s judgments on oncall work and compensatory rest.
The first 7-year process of attempts to revise
the WTD ended with a failure to reach
agreement between Parliament and Council in
April 2009 in the conciliation phase.
The second try to revise the Directive
partners was launched on 21 December 2010
[Communication COM(2010)801/3].
During the second stage of the consultation,
the social partners had until end of February
2011 to make their views known to the
Commission on different options for amending
the Directive. The key issues remained on the
table: working hours (opt-out), on-call,
reference periods, daily/weekly rest, paid
annual leave/sick leave, reconciliation of work
and family life and
autonomous workers
(senior management).
The ETUC’s response to the consultation “The
Working Time Directive: Limitation of working
hours and greater influence of workers for the
benefit of healthier working life” was adopted
in the Executive committee meeting on 8
March 2011.
In the second-phase consultation, the
Commission asked whether the EU social
partners wish to enter into negotiations on all
or part of the issues raised in the consultation
communication with a view to concluding an
agreement that would make it possible to
amend the Directive. The ETUC answered
YES, we would enter into negotiations with
the social partners at European level with a
mandate which had the following objectives:

A comprehensive revision of the WTD which
can serve the health and safety of workers;

The end or phasing-out of the individual optouts in the near future;

Keeping the status quo concerning reference
periods;

And respect for the ECJ judgments on on-call
time and compensatory rest.
Also
BUSINESSEUROPE,
CEEP
and
UEAPME announced that they are willing to
negotiate with ETUC a revision of the
Directive, but with a limited mandate (on-call
time, reference period, compensatory rest and
paid annual leave/sick leave).
The European Commission restarted the
revision process of the WTD on 24 March
2010 by launching the first-stage consultations
with the European social partners. The
second-phase consultation of the social
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Jorma Rusanen
Senior Policy Adviser
State of Play of the Working Time
Directive Negotiations
The WTD negotiations began in December
2011 and there have been seven meetings of
the social partners since then in February,
March, April, May, June, September and
October.
Due to many disagreements, most of the
meetings involved an exchange of views over
procedure and the main issues to be
negotiated. The two-day seminar meeting in
May, which the both partners after long
discussions agreed to arrange, was dedicated
to a fact-finding seminar which examined a
number of cases studies submitted by both
trade unions and employers. The June
meeting involved mainly a follow-up discussion
of the seminar and so it wasn’t until the 24
September that more substantial negotiations
got underway and continued in the 31 October
meeting.
September, also, marked the end of the official
nine-month period for negotiations, but the
social partners had already applied to the
European Commission for an extension and
this was approved by the Commission in
August. Negotiations will now continue until 31
December 2012 and it is not impossible for the
Commission to agree to a further extension if it
looks like the negotiations were to produce a
result. If...
The two sides identified their main issues for
the negotiations during spring and summer,
but it was only in September that specific
proposals to amend the Directive emerged
from the negotiating teams.
The ETUC has put forward three items, worklife balance, the definition of autonomous
workers and the opt-out, as its main concerns.
The employers, in line with expectations, want
to look at on-call time, the reference period
and the right to carry over holiday entitlement
when on long-term sick leave. The ETUC is
also looking for a number of changes and
additions to the preamble of the Directive.
The ETUC negotiating team, lead by the
ETUC Deputy General Secretary Patrick
Itschert, has tried to keep the focus on the
health and safety aspects of the Directive and
referred back to the report on working time
trends and patterns, social and economic
impacts produced by the management
consultant Deloitte (commissioned by DG
Employment) that made a number of telling
points about long working hours and the
negative impact on health, safety and work-life
balance.
The timetable for the next negotiations has
been agreed as 31 October, 21, 23 and 30
November and 3 December.
The negotiations have been difficult. The
ETUC wants a comprehensive revision and
the end or phasing-out of the individual optouts in the near future. For the employers the
end of the opt-out is unacceptable as well as
the employers’ on-call time amendments are
for trade unions. In fact, the employers have
gone for the maximalist position in their
amendments. If these negotiations fail, the
Commission will give its legislative proposal
soon, most probably during the spring 2013.
That’s why we must be ready for the “plan B”
and also cooperate with the European
Parliament.
Main proposals to amend the
directive on table
BUSINESSEUROPE, CEEP, UEAPME:
a. Articles 1.2 (a), 1.3 and 2 (scope /
definition of working time / on-call time):
employers want the directive to cover ‘oncall time’. In the definition they want to
make the distinction between active /
inactive working time, with only the active
part of on-call being regarded as working
time, the inactive part of on-call time not.
In addition the amendments attack on the
reference period and adequate rest period.
Unacceptable for us.
b. Article 7.1 (annual leave): Member states
determine the conditions, including
minimum period of actual work to qualify
for entitlement to paid leave. Member
states determine the conditions under
which paid annual leave may be actually
used by a worker and also the interaction
of annual leave and other forms of leave
i.e. sick leave. The proposal is not in
compliance of the ECJ judgments and
undermines
annual
leave
as
a
fundamental social right.
c.
Article 16 (reference period): to extend to
12 months by means of national
legislation,
administrative
provisions,
collective agreements concluded between
the two sides of industry. An attack on the
reference period, unacceptable for us.
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Jorma Rusanen
Senior Policy Adviser
d. Article 17.2 and 18 (compensatory rest
period): ‘within a reasonable period’ to be
determined
by
national
legislation,
collective agreement or agreement
concluded between the social partners.
The proposal is in conflict with the purpose
and scope of the directive and the ECJ
judgments.
e. Article 17.5 (derogations). Employers’
proposal makes the opt-out provision a
permanent provision. Unacceptable for us.
ETUC:
a. Rework preamble to take account of
various treaty provisions and articles in the
European Charter of Fundamental Rights
(articles 31 and 33), reference to directive
2002/14/EC, reference to WHO definition
of health; reminder of the link between
health and safety for workers and possible
impact for broader public, especially in
transport or major industrial installations,
such as power plants, the need to
introduce working time models providing a
better balance for the reconciliation of
working, family and private life, the need
for workers to have control over their
working time;
b. New article 13 – reconciliation of working,
family and private life picking up the points
made in proposals for preamble under a.
c. Tighter definition in article 17(a) to refer to
“persons with direct and final responsibility
for the daily management of a corporate
undertaking and who are authorised to
engage the company and take corporate
decisions, i.e. chief executive officer (or
persons in comparable positions) and
senior managers, directly subordinate to
the latter and persons who are directly
appointed by a board of directors in public
or private sectors”.
d. Article 22 (opt-out): The end or phasingout of the individual opt-outs in the near
future. Meanwhile, tighten the conditions
for the individual opt-out, for instance by
stating that no employer requires a worker
to work more than 48 hours over a sevenday period, calculated as an average in a
four month reference period, unless he
has obtained the worker’s agreement.
Such an agreement is only valid for a
period of four months. No individual opt-
out during the first 4 weeks of an
employment relationship or during any
probation period. Workers to be entitled to
withdraw agreement in writing. No worker
shall suffer any detriment because he is
not willing to perform such work.
Information and consultation processes
need to be respected by employers
wanting to use the opt-out. Employers
must
offer
free
voluntary
health
assessments to the workers concerned
and keep up-to-date records. These
records have to be placed at the disposal
of the competent authorities. In case of
non-respect of these conditions effective
sanctions are to be introduced by Member
States.
Explanation of some key points
in the revision process
Individual opt-out: Current situation: Opting out of
‘average 48 hour working week’ is possible on basis
of individual agreement with employee.
On-call work: Current situation: ECJ-judgments
(Simap-case C-3030/98, Jaeger-case C-151/02,
Pfeiffer C-397/01) have defined on-call duty (of
doctors in hospitals) as working time.
Reference periods: Current provision: Reference
period for counting the ‘average’ maximum working
week of 48 hours of 4 months, extension possible
by collective bargaining.
Compensatory rest: Current situation: The ECJ
case law states that compensatory rest should be
accorded immediately.
Work-life balance–Reconciliation of work and
family life: Current situation: No provisions in
Directive that take account of the link between
health and safety workers and (lack of) work-life
balance.
Senior management / Autonomous workers: The
directive currently contains in Article 17.1 (a) the
possibility of excluding from the 48-hour working
week specific groups of workers in cases in which
the duration of the working time is not measured or
can be determined by the workers themselves, such
as managers and other persons with autonomous
decision-making powers.
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Jorma Rusanen
Senior Policy Adviser
The ETUC mandate on the revision of the Working Time Directive
On 21st December 2010 the Commission has
adopted a Communication reviewing the
Working Time Directive (WTD), which
constitutes the second stage of consultation of
the EU Social Partners on the content of the
envisaged action at EU level to review the
WTD and to ask the Social Partners at EU
level whether they wish to enter into
negotiations.
The Executive Committee meeting on 8 and 9
March 2011 led to the adoption of a resolution
indicating wide-ranging support for four
objectives of a possible mandate.
3. This framework agreement will, in terms of
content, seek to ensure in particular the
following:

to include the end or phasing-out of the
individual opt-out in the near future. The opt-out
is not compatible with the basic principles of
health and safety protection.

to keep the status quo concerning reference
periods. The “average 48 hour maximum” is
already a very flexible concept with a reference
period of 4 (to 12) months.

to ensure compliance of the ECJ judgments on
on-call time and compensatory rest.
Considering these objectives, the Steering
Committee on the 16th of September 2011 has
given a positive recommendation on the
appropriateness of opening negotiations on
the basis of a clear mandate.
The ETUC has always stressed that on-call
time has to be recognised as working time and
compensatory rest should not be postponed,
but as stated by the ECJ case law, should be
granted immediately.
It should be noted that this would be the first
time that the European Social Partners revise
an existing Directive from the Commission
(2003/88/EC)1.
Furthermore, apart from those priorities, the
ETUC will seek to include proposals on other
issues such as the limitation of the derogation
for autonomous workers, the limitation of
working time on a “per worker” basis and not
“per contract” in case of multiple contracts and
the improvement of the implementation and
control of the obligations included in the
Directive.
1. The Executive Committee in conformity with
Article 14 of the ETUC Constitution, after
having consulted national confederations and
European trade union federations hereby gives
the ETUC a mandate to seek a cross-sectoral
European framework agreement on the
revision of the Working Time Directive, in
accordance with Article 155 (2) of the Treaty,
as foreseen in the response to the second
consultation
stage
of
the
European
Commission on the review of the working time
Directive.
2. The negotiations need to have as scope a
comprehensive revision of the which can serve
the health and safety of workers, considering
that the “improvement of workers safety and
health at work is an objective which should not
be
subordinated
to
purely
economic
considerations”. Another aspect will be the
improvement of the work-life balance by
reducing the negative impact of irregular and
unpredictable working hours.
1
The negotiation on parental leave by the European
Social Partners, revised as well an existing Directive, but
one being itself the result of European negotiations. This is
not the case of the Working Time Directive.
4. The agreement shall include a clause to
ensure that implementation of this agreement
does not constitute valid grounds to reduce the
general level of protection afforded to workers
at national level.
5. The agreement will promote a partnership
approach by employers, workers and trade
unions aimed at protecting the health and
safety of the workers in Europe with regard to
working time issues, and support collective
bargaining and/or joint actions on related
issues.
6. The agreement will be binding on the
signatory parties and their members, and
contain a clause regarding the effective
implementation, monitoring and follow-up of
the agreement at national, sectoral and
European levels. Once concluded, the
European Social Partners will jointly request
that the agreement be implemented as a
Directive by a Council decision on a proposal
from the Commission.
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