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Institute of Employment Rights
NATFHE Centre
London
Conference
“Worked to the bone:
Regulating the UK’s long-hours culture”
Bringing the Regulations into Line with Europe
Brian Bercusson
King’s College
University of London
15 March 2006
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Regulation of Working Time in the United Kingdom and in Europe
1.
The UK’s Working Time Regulations1 were introduced in order to
implement European Community (EC) law in the form of Working
Time Directive of 1993.2 But for this legal intervention by the
European Community, there would be little regulation of working
time in the UK.3 Nor is there likely to be any revision in the UK’s
regulation of working time without further intervention from
Europe.
2.
Bringing the UK Regulations into line with Europe may be
achieved through litigation. Notable successes have been achieved,
as when BECTU succeeded in challenged the Regulations
excluding temporary workers from the Directive’s provisions on
entitlement to paid holidays.4
3.
However, more substantial changes bringing the UK into line with
Europe will depend on whether and how the European Community
decides to revise the Working Time Directive.
Revision of the Working Time Directive
4.
Council Directive 93/104/EC included provisions allowing an optout from the mandatory limit on a maximum of 48-hours average
weekly working (Article 6), but required the Commission, before
23 November 2003, to “re-examine the provisions… and decide on
1
The Working Time Regulations 1998. S.I. 1833 (as amended).
Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of
working time; OJ L307/18 of 13.12.93, as amended by Directive 2000/34 of 22 June 2000, OJ L195/41.
Now consolidated in Directive 2003/88/EC of 4 November 2003 concerning certain aspects of the
organisation of working time; OJ L299/9 of 18 November 2003.
3
The then Conservative UK government fought to prevent the adoption of the Directive, and then
challenged it before the European Court of Justice. It lost both battles. United Kingdom v. Council,
Case C-84/4, [1996] ECR I-5755.
4
Broadcasting, Entertainment, Cinematographic and Theatre Union (BECTU) v. Secretary of State for
Trade and Industry, Case C-173/99, [2001] ECR I-4881. Other possibilities remain to be exploited:
Bernhard Pfeiffer et al. c. Deutsches Rotes Kreuz Kreisverband Waldshut eV, Joined Cases C-397/01 to
C-403/01. Opinion of Advocate-General M.D. Ruiz-Jarabo Colomer, 6 May 2003; Second Opinion, 27
April 2004, ECJ decision, 5 October 2005.
2
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what action to take”.5 A similar review was envisaged of the
reference periods over which the maximum average was to be
calculated.6 Of concern initially primarily to the UK, other Member
States have become engaged because of decisions of the European
Court of Justice (ECJ) affecting, in particular, the hospital sector.7
The result was a highly controversial proposal for revision of the
Working Time Directive by the Commission of 22 September
2004.8
Proposals for revision of the Working Time Directive
5.
The proposals of the Council under the Dutch Presidency (JulyDecember 2004) included a number of options:
-
eliminate the “opt-out” altogether;
-
keep the opt-out but under a process of peer review and
revision;
-
extend the 12 month reference period without any
conditions;
-
re-define on-call work so that inactive time while on-call is
not working time (reversing the European Court’s decisions
that all on-call work at the workplace is working time);
-
the period of compensatory rest to extend to 7 days after the
limitation on working time is exceeded (reversing the
5
Article 18(1)(b)(i) of Council Directive 93/104/EC of 23 November 1993. Now Article 22)(1) of
Directive 2003/88/EC of 4 November 2003.
6
Article 16: “Member States may lay down… (b) for the application of Article 6 (maximum weekly
working time), a reference period not exceeding six months…”. Article 19: “…Member States shall
have the option, subject to compliance with the general principles relating to the protection of the
safety and health of workers, of allowing, for objective or technical reasons or reasons concerning the
organisation of work, collective agreements or agreements concluded between the two sides of industry
to set reference periods in no event exceeding 12 months”.
7
Sindicato de Médicos de Asistencia Pública (Simap) v. Conselleria de Sanidad y Consumo de la
Generalidad Valenciana, Case C-303/98, [2000] ECR I-7963. Landeshauptstadt Kiel v. Norbert
Jaeger, Case C-151/02, 9 September 2003. Abdelkader Dellas v. Ministre des Affaires Sociales, Case
C-14/04, ECJ decision, 1 December 2005.
8
Proposal for a Directive of the European Parliament and of the Council amending Directive
2003/88/EC concerning certain aspects of the organisation of working time. COM(2004) 607 final,
Brussels, 22 September 2004.
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European Court’s decision that compensatory rest must
follow immediately after excessive working time).
6.
7.
8.
In the European Parliament’s Opinion of 11 May 2005 on the
Commission’s proposal, its counter-proposals included:
-
phasing out of the “opt-out”;
-
on-call time (at the workplace), including inactive time, is
working time, but derogations may be allowed;
-
extension of the reference period to 12 months
(annualization), but subject to strict conditions.
Other proposals have circulated. For example, as to the reference
period over which the 48-hour maximum working work was to be
calculated, that Member States can allow extension to 52 weeks by
collective agreement (the current position) or by the employer
fulfilling certain conditions:
-
undertaking a risk assessment, updated annually,
-
monitoring health and safety, including via sickness and
accident records, keeping written records of the monitoring;
-
keeping records of time worked over 52 weeks;
-
providing free health checks at least once a year;
-
specifying maximum weekly hours in any week during the
52 week period (e.g. Dutch presidency proposal: maximum
55 hours weekly over average 28 days where individual optout outside collectively agreed opt-out).
Additional safeguards might be required, such as announcing the
pattern or changes in working time at least 4 weeks in advance,
taking into account the needs of individual workers as regards
work and family life and informing and consulting worker
representatives before introducing annualised working time (linked
to the framework information and consultation directive, which
came into force on 23 March 2005).
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9.
Under the Luxembourg Presidency of the Council during the first
half of 2005, the European Commission made another proposal
accepting some but not the most important amendments suggested
by the European Parliament, arguing that they “disrupt the balance
of the initial text and make it more difficult to obtain an agreement
or a sufficient majority in the Council”.9 Specifically, the
Commission’s new proposal rejected the Parliament’s proposed
amendment abolishing the individual opt-out, but “while unable to
accept it as it is, it is prepared to explore a possible compromise on
this question which is dividing the co-legislators”.
10.
The UK held the Presidency of the Council during the second half
of 2005. On 26 October 2005, Tony Blair said to the European
Parliament that “on Working Time, I hope we can reach agreement
in the UK Presidency – we will certainly try” and on 21 November
the UK presented its proposals.10 As regards the opt-out:11
“The Presidency has therefore come up with a proposal to
accommodate those concerns in a balanced way. The
principle of the Directive – that no worker should be forced
to work longer than 48 hours a week – remains paramount.
However, those Member States that wish to allow their
citizens to choose to work longer, either now or in the future,
would be able to do so. Those Member states that wanted to
remove the possibility of the opt-out on their territory would
be able irrevocably to renounce it. Furthermore, to address
the concerns of Member States about opted-out workers
coming in from other countries, Member States would be
able to ban workers from using the opt-out on their territory
even if they had signed it elsewhere.
This proposal also addresses the concerns of those Member
States who wish to allow their citizens to work more than a
total of 48 hours a week in one or more jobs, whilst also
addressing the concerns of those that wish to protect these
9
European Commission, Amended proposal for a Directive of the European Parliament and of the
Council amending Directive 2003/88/EC concerning certain aspects of the organisation of working
time, Brussels, 31 May 2005, COM(2005) 246 final.
10
UK Presidency, Amended proposal for a Directive of the European Parliament and of the Council
amending Directive 2003/88/EC concerning certain aspects of the organisation of working time,
Brussels, 21 November 2005, Doc. 14687/05
11
Ibid., pp. 3-4.
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workers by letting them work within a legal framework and
not be driven into the black economy by unnecessarily
restrictive limits on the hours they may work...
It is clear that some Member States could never accept a
proposal that included the removal of the opt-out. A proposal
to phase out the opt-out would have a huge impact on those
Member States and individual EU citizens who value it, and
a very limited impact on those Member States and the
citizens that do no. The proposals in the Annex address the
practical concerns of both groups in a neutral way…”.
11.
One can draw one’s own conclusions about the “neutrality” and
“balanced way” of a proposal which retains the opt-out
indefinitely.
12.
Following the Commission’s proposal of 2004, the European Trade
Union Confederation put together a Task Force of representatives
of its trade union affiliates from all Member States and various
experts which has been meeting regularly. It has mounted a very
dynamic and effective campaign of information and lobbying, at
both European and national levels. In no small part due to these
efforts, the UK’s proposal of November 2005 was blocked in the
Council. No further attempt has been made under the Austrian
Presidency which took over on 1 January 2006
13.
In considering any revision of the directive, two issues should be
borne in mind.
i.
General principles of Community law must be respected:
non-regression and fundamental rights/principles, including
protection of the health and safety of workers.
ii.
In negotiating the revision, a distinction can be made
between substantive and procedural changes. Any changes in
substantive protection must be compensated for by
procedural changes, so that, arguably, the principles of nonregression and of protection of the health and safety of
workers are not violated.
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General principles
15. The revision of the Working Time Directive has raised issues with
potential longer-term implications, including a “non-regression
principle”.12
A “non-regression principle”
16.
The concept of “non-regression” in EU law needs to be analysed
and developed. This will become of increasing importance in a
political climate where the Member States or EU institutions seek
to attack the EU’s social acquis.
17.
Article 136 EC:
“The Community and the Member States… shall have as
their objectives… improved living and working conditions,
so as to make to possible their harmonisation while the
improvement is being maintained…”.
18.
Article 137(1) EC:
“With a view to achieving the objectives of Article 136…”.
19.
Article 137(2)(b) EC: (as amended by the Treaty of Nice)
“To this end, the Council… may adopt… by means of
directives, minimum requirements…”.
12
The application of this principle has arisen in relation to the Fixed-Term Work Directive: Council
Directive 91/383 of 25 June 1991 supplementing the measures to encourage improvements in the safety
and health of workers with a fixed-duration employment relationship or a temporary employment
relationship, OJ 1991 L206/19. See Werner Mangold v. Rudiger Helm, Case C-144/04, ECJ, decided 22
November 2005.
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20.
The Working Time Directive is the minimum requirement adopted
by the Council in 1993.13 Any amending directive aiming at further
harmonisation must ensure “the improvement is being maintained”.
21.
There are problems in interpreting and applying the principle of
non-regression in various circumstances.
22.
For example, is it a regression:
23.
-
where the amendment affects both individual workers and
their representatives (trade unions); for example, the
European Court held that trade unions could not by
collective agreement agree that individual workers work
more than 48 hours; the individual worker had to give
individual consent;14
-
conversely, where the amendment affects the workers’
representatives (trade unions), but not any/some/many
individual workers;
-
where the amendment adversely affects some workers, but
not others;
-
where it extends the opt-out by allowing individual workers
to extend reference period, but allows for pressure to be
exerted by employers…?
These problems are illustrated by the difficulty of the European
Parliament’s compromise proposal: revision of the reference
period in exchange for a phasing out of the opt-out and a different
on-call formula. This might benefit some/all individual workers.
But it means losing the current provision allowing extension of the
reference period to 12 months by collective agreement only, which
is a major incentive to employers to recognise and negotiate with
trade unions, since their consent is needed
13
See also the Preamble to the Working Time Directive, which cites the Community Charter of the
Fundamental Social Rights of Workers, Article 7: “The completion of the internal market must lead to
an improvement in the living and working conditions of workers in the European Community. This
process must result from an approximation of these conditions while the improvement is being
maintained, as regards in particular the duration and organization of working time…”.
14
See cases in footnote 7 above.
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24.
On the other hand, if the opt-out by way of an agreement to work
more than 48 hours was allowed, but only by collective agreement,
this would support the collective dimension. However, if individual
workers were thereby denied the opportunity to opt-out, would this
be considered a regression? It would depend on whether the
possibility to opt-out (working more hours) could be characterised
negatively as a regression in EU labour standards, or positively as
the exercise of freedom.
25.
A list of proposed amendments may illustrate the arguments as to
whether there is regression by looking at evidence of the
consequences for conditions of work which demonstrate the
regression.
The opt-out
26.
The Commission’s first consultation15 included evidence that the
opt-out was abused in and by the UK. Also, that its use by Member
States had increased, not least as a result of the European Court’s
decisions on the definition of working time which were said to
have a substantial impact on the health service. 16 The consequence
that the protection against excessive working hours was removed
from more and more workers.
27.
A revision proposing to maintain the opt-out, or make it
permanent, will undoubtedly lead to regression.
15
Communication from the Commission to the Council, the European Parliament, the Economic and
Social Committee and the Committee of the Regions concerning the re-exam of Directive 93/104/EC
concerning certain aspects of the organization of working time, COM(2003) 843 final, Brussels, 30
December 2003. See C. Barnard, S. Deakin and R. Hobbs, “Opting out of the 48-hour week: Employer
necessity or individual choice? An empirical study of the operation of Article 18(1)(b) of the Working
Time Directive in the UK”, (2003) 32 Industrial Law Journal 223-252.
16
See above, footnote 3. “According to the German government, medical staffing requirements will
rise by 24% requiring 15,000 to 27,000 doctors at a cost of Euro 1.75 billion; the UK government
believes it will need between 6,250 and 12,550 more doctors and 1,250 other staff, at a cost of Euro
540 million to Euro 1.1 billion; and the Dutch government estimates that it will need 10,000 new care
staff at a cost of Euro 400 million”. Industrial Relations Services (IRS) Employment Review No. 792,
23 January 2004, p. 49.
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28.
In these circumstances, a simple extension of the opt-out arguably
constitutes regression, particularly if further review is not
guaranteed. In contrast, a guaranteed phasing out would counter
tendencies to abuse and encourage moves to achieve compliance
before the deadline.
29.
Similarly, reducing the conditions currently required for an opt-out
might constitute regression. Any alteration of the conditions of optout could also be regarded as regression. At a minimum,
maintaining the existing conditions, ensuring they are enforced and
not abused, or adding conditions is required to ensure there is no
regression.
On-call time
30.
The European Court interpreted the directive to mean that all time
at the workplace is working time, active or inactive.17 This is the
standard laid down by the directive which cannot be regressed
from.
31.
The Council proposes that on-call time is no longer completely to
count as working time: inactive on-call time is not to count as
working time. This is clearly a regression where it leads to
violation of the directive’s provisions on, for example, minimum
rest periods or maximum daily or weekly working hours.
32.
The European Parliament’s proposal is that on-call time count as
working time unless there are derogations. This simply means that
such derogations, not currently allowed by the directive, amount to
a regression.
17
See above, footnote 3.
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Compensatory recuperative time
33.
The Council proposes that the compensatory recuperative period
may be delayed until a maximum of 7 days after on-call duty. A
Press Release of the Social Affairs Council admits that “the Court
stated that compensatory recuperative period, which usually
follows working time, must begin immediately after the on-call
service”. The justification for the Council’s proposal is that “the
member states will be faced with high costs and personnel
problems”. Such a justification was rejected by the Court as
excluded by the Directive’s Preamble stating: “the improvement of
workers’ safety, hygiene and health and work is an objective which
should not be subordinated to purely economic considerations”. To
this might be added evidence that delaying recuperative rests is
detrimental to health and safety (airline pilots, surgeons).
Annualization
34.
The Council proposes that the reference period for calculating
average maximum weekly working hours be extended without the
present requirement of a collective agreement. The European
Parliament proposes that such extension be allowed without a
collective agreement, but only under strict conditions.
35.
The Council’s proposal is equivalent to extending the individual
opt-out dramatically. Individual workers could be required to work
more than the average 48 hours weekly over a 4- or 6-month
period. At present, this can only be done if the Member State opts
out, and then under stringent conditions, including that the
individual worker has agreed. Both these conditions would
disappear if annualization was automatic. For example, individual
workers could be required to work for 60 hours per week over a
4/6-month period, with none of the opt-out conditions, provided the
average over 12 months was 48 hours (e.g. a 36 hour week for the
next 6 months).
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36.
It is not clear whether the proposal to allow extension to 12 months
is subject to the condition that it is allowed only where there are
objective/ technical/organisational reasons. A blanket extension
deleting this condition is arguably regression. Also, is the condition
that it is subject to general principles of protection of health and
safety to be retained?
Negotiating the revision
37.
It may be argued that the substantive changes proposed by the
Council, and even those of the Parliament, are regressive, thereby
violate the EC Treaty and may be challenged before the European
Court.
38.
Negotiations might avoid this outcome if sufficient concessions are
made so that changes in substantive protection are compensated for
by procedural changes. By reinforcing the provisions on
monitoring and enforcement, arguably, the principles of nonregression and of the health and safety of workers are not violated.
39.
It may be argued that the Commission, Council and Parliament
should have taken this approach from the beginning. Two general
principles will be highlighted: the 1989 Framework Directive on
health and safety, and Article 13 of the Working Time Directive.
40.
The 1989 Framework Directive is a health and safety directive.18
The EU institutions should have followed the basic principles set
out in the 1989 Framework Directive. The Preamble to the
Working Time Directive states that the 1989 Directive applies.19
Basic principles of the 1989 Directive should have been followed.
18
Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage
improvements in the safety and health of workers at work. OJ L 183/1.
19
“Whereas the provisions of Council Directive 89/391/EEC of 132 June 1989 on the introduction of
measures to encourage improvements in the safety and health of workers at work are fully applicable to
the areas covered by this Directive without prejudice to more stringent and/or specific provisions
contained therein”.
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41.
Risk assessment: Article 6(3)(a) states the requirement to “evaluate
the risks to the safety and health of workers”. The EU institutions
should be expected to do the same when they propose revisions of
health and safety directives.
42.
Collective measures: Article 6(2)(h) specifies “giving collective
protective measures priority over individual protective measures”.
The EU institutions violate this principle, for example, in the
proposal to extend the reference period without the need for
collective agreement.
43.
The EU institutions have failed to observe these basic principles as
regards the proposed amendments concerning the opt-out,
definition of working time, managing on-call work and reference
periods.
44.
Humanization of work: Article 13 of the Working Time Directive
provides: (Pattern of work)
“Member States shall take the measures necessary to ensure
than an employer who intends to organize work according to
a certain pattern takes account of the general principle of
adapting work to the worker...".20
45.
The Directive emphasises the role of collective bargaining in
setting many specific standards. Article 13 could be read as
implying a general requirement of consultation and participation of
workers and their representatives. Member States are obliged to
secure that employers take into account “the general principle of
adapting work to the worker”. The obvious way to achieve this is
through consultation of workers and their representatives.
Note the wholly inadequate implementation of this provision in Regulation 8 of the UK’s Working
Time Regulations 1998: “Pattern of work. Where the pattern according to which an employer organises
work is such as to put the health and safety of a worker employed by him at risk, in particular because
the work is monotonous or the work-rate is predetermined, the employer shall ensure that the worker is
given adequate rest breaks”.
20
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46.
Monitoring and enforcement: There are well-known problems of
monitoring and enforcement of the Directive’s provisions on
working time. Additional safeguards might be a condition for
further flexibility to be granted. In other words, concessions on
substance might be traded for stronger enforcement provisions.
Some examples:
Reinforced monitoring.
47.
Where sector specific problems are identified as justifying an optout (e.g. the extension of the reference period, or a re-definition of
“working time” to exclude (inactive) on-call time), there should be
sector-specific enforcement mechanisms (reporting, inspection
agencies…).
48.
It may be that the burden of undergoing special monitoring (e.g.
providing extra information) and enforcement may deter employers
from exploiting the new provisions. The burden of extra
monitoring and enforcement will deter governments of some
Member States.
Information and consultation
49.
Where employers are able to use the opt-out, or extend the
reference period, or exploit the re-definition of “working time” to
exclude (inactive) on-call time, there should be reinforced
obligations of information and consultation of employee
representatives over scheduling the pattern of working hours.
50.
Trade-offs: A number of specific trade-offs may be suggested to
balance concessions.
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51.
On the opt-out: more stringent information requirements. For
example, recalling the UK’s watering down of this requirement.
The original UK Regulations of 1998 required detailed information
about hours worked; this was changed in 1999 to require only
information identifying the employees concerned.
52.
On reference periods, if the reference period is extended to 12
months, the employers should keep records on anybody working
more than 48 hours averaged over a period exceeding 17 weeks. If
the reference period is so extended, this should be allowed only:
i.
ii.
iii.
iv.
v.
53.
by explicit derogation (as is currently the position for 26
weeks), and/or
be time-limited (sunset clause); and/or
by derogation in specific cases which must be justified on
narrowly defined grounds, and/or
subject to specified conditions; and/or
subject to review by the Commission.
On-call work: if working time is to exclude some (inactive) on-call
time at the workplace, there should be precise information, e.g.
quantifying it; or defining the “active” work obligation precisely so
that inactive (non-working) time is clearly understood. If working
time is to exclude some (inactive) on-call time at the workplace,
this should not to be a general rule. It should only apply:
i.
ii.
iii.
iv.
v.
by derogation for specific sectors (e.g. health); and/or
be time-limited (sunset clause); and/or
by derogation in specific cases which must be justified on
narrowly defined grounds, and/or
subject to specified conditions; and/or
subject to review by the Commission.
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Conclusion
54.
There are a large number of proposals currently circulating which
aim to revise the Working Time Directive. Many of these would
have a substantial impact on working time regulation in the UK.
The final content of any revised Directive will depend on the
proposal of the Commission, and negotiations between the
European Parliament and the Council of Ministers. The UK
government’s position in the Council has aimed to minimise EU
intervention, protect its opt-out from the European regulations, and,
where possible, reduce the protection they currently offer. The
European Parliament, including some British MEPs, have tried to
resist this.
55.
The outcome in the form of a revised directive may well
compromise some of the protection currently available under the
Directive. The UK government may then implement the revised
Directive reducing further the protection provided. If so, it may be
worth considering whether such regulations, and indeed the
Directive, itself, may be challenged before the European Court as
violating the principle of non-regression: that European
Community labour law, and consequently the labour law of the
Member States, including the UK, cannot reduce or withdraw from
the minimum standards of protection established in European law.
16