EN Official Journal of the European Union C 231/69

Opinion of the Committee of the Regions on the 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

(2005/C 231/10)

THE COMMITTEE OF THE REGIONS,

Having regard to the 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 — 2004/0209 (COD);

Having regard to the decision of the Council of 20 October 2004 to consult it, in accordance with the provisions of Article 137(2) of the Treaty establishing the European Community;

Having regard to the decision of its president on 3 November 2004 to direct its Commission for Economic and Social Policy to prepare an opinion on the subject;

Having regard to Directive 93/104/EC concerning certain aspects of the organisation of working time as amended by Directive 2000/34/EC;

Having regard to the Communication from the European Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions concerning the re-exam of Directive 93/104/EC concerning certain aspects of the organisation of working time;

Having regard to the Second Phase of Consultation of the Social Partners at Community Level concerning the revision of Directive 93/104/EC concerning certain aspects of the organisation of working time;

Having regard to the jurisprudence of the European Court of Justice concerning interpretation of certain provisions of the Directive in case C-303/98, Sindicato de Médicatos de Asistencia Pública (SIMAP) v Conselleria de Sanidad y Consumo de la Generalidad Valenciana and case C-151/02, Landeshauptstadt Kiel v Norbert Jaeger;

Having regard to the principle of subsidiarity enshrined in Article 5 of the Treaty Establishing the European Community — Article 5 ECT;

Having regard to the Council Directive of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (89/391/EC);

Having regard to the target set by the Lisbon European Council on 23/24 March 2000 for the European Union to become the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion;

Having regard to its draft opinion (CdR 329/2004 rev. 2) adopted on 11 February 2005 by its Commission for Economic and Social Policy (Rapporteur: Baroness Joan Hanham, Member of the Royal Borough of Kensington and Chelsea (UK-EPP);

adopted the following opinion at its 59th plenary session, held on 13 and 14 April 2005 (meeting of 14 April).

1. Views of the Committee of the Regions

THE COMMITTEE OF THE REGIONS:

1.1 welcomes the Commission initiative to amend the Working Time Directive at this stage as there is an urgent need to resolve a number of issues in respect of the interpretation and application of the Working Time Directive at member state level;

1.2 reminds the Commission, Parliament and Council that local and regional authorities are major employers within the European Union with a significant role in managing public services such as social care, health and civil protection services;

1.3 remains concerned that failure to find a satisfactory solution will add to the immediate problems of skilled labour shortages in the health and social care sector throughout the EU and that in the short term this will result in even greater economic migration in these sectors from the new Member States and poorer countries outside of the EU to the established Member States and that this will be to both the short and long term detriment of the health and social care sectors in the new Member States and poorer countries outside the EU;

1.4 believes that while there is a technical side to the issue of regulating working time, there are also implications for the type of society which Europe wishes to be; that when Europe is seeking to promote greater entrepreneurship, creativity, and active citizenship, while providing individuals with a better work-life balance, the regulation of working time has implications for all these aspirations, and therefore must be considered in this context;

1.5 recognises that the Commission proposal on the definition of working time attempts to remove the legal uncertainty created by the ECJ rulings in the Jaeger and SIMAP cases. The aim of European legislation must be to ensure that on-call provisions remain an important factor in the ability to provide quality and continuous health services and residential care, including care of vulnerable adults and children;

1.6 recognises that a possible negative effect of returning to the pre-SIMAP/Jaeger position is that there could be situations where patterns of work could exist in which workers may spend large amounts of time on-call at the workplace and that, if not effectively managed, this could potentially impact on the health and safety of such workers, and possibly others, such as customers and the public, and also on a worker's ability to balance work and family life;

1.7 points out, however, that the Working Time Directive is a health and safety measure designed to place limits on working hours to achieve a balance between work and rest. It is not a measure to define other terms and conditions of employment, such as the agreement to, or the financial compensation for working a particular pattern of hours. These are matters to be agreed on an individual or collective basis in accordance with the practices and procedures in individual Member States or work sectors as appropriate. In addition, whatever pattern of work is envisaged, the employer retains responsibility for the health and safety of workers and should have measures in place to ensure that their health and safety is not prejudiced;

1.8 accepts that currently the ability to extend the reference period, used for the calculation of the average hours worked per week, is only available in a limited number of workplaces covered by derogations or if a collective agreement can be reached to this effect; therefore favours the rapid introduction of an annualised approach to working hours, especially in industries which are subject to strong seasonal variations in demand for their products or services. This would be a useful contribution to the competitiveness agenda;

1.9 observes that the rule of application for the calculation of average working time for workers employed on shorter contracts is effectively the same as that which applies currently for workers who work less than the standard reference period of 4 months;

1.10 notes that the proposal on the provision of compensatory rest removes the obligation created by the ECJ ruling in the Jaeger case to grant compensatory rest immediately. This would remove the confusion created by the judgement. In most cases 72 hours will be a reasonable period within which to afford compensatory rest;

1.11 observes that the Commission's proposals would retain the right for workers to opt-out of the maximum average 48 hour week, in Member States which take up this option, but that in some workplaces this option would be dependent on collective agreements. This area of the proposal if pursued would require further clarification as under it, individuals may also agree to opt-out in workplaces where there is the absence of a collective agreement. Consequently it is not sufficiently clear exactly when this facility is to apply. It may for example only be intended to apply to small employers in Member States which do not traditionally have widespread collective bargaining structures, such as the UK. Although it may also be intended to be of relevance to any of the new Member States which do not have well developed social dialogue processes including collective agreements;

1.12 agrees that the decision to opt out of the 48 hour maximum average working week is a voluntary choice for an individual worker and that they must not be put under pressure by their employers to do so. There must be adequate protections to ensure that this does not occur, but also additional measures to ensure that their health and safety is protected where they do opt out;

1.13 observes that many of the conditions which are to apply to the 48 hour opt-out already apply to the individual opt-out as it exists now; but some do not provide any obvious further protection for workers and should be removed or reserved to Member States;

1.14 considers that the requirement that the opt-out must be for a maximum period of one year and then renewable would give the false impression that the duration of the opt-out is fixed for one year, whereas the true position is that individuals have the freedom to rescind the opt-out at any time;

1.15 acknowledges that the provision that any opt-out signed at the same time as the employment contract would be null and void would provide some protection for workers who otherwise may feel pressurised to opt-out. However, individuals may early in their working life with a new employer wish to work longer hours in order to earn additional income and so it must be clear at what stage of employment an employee has the right to opt-out. This would be particularly relevant where workers are engaged on short-term contracts in order to respond to a seasonal peak in workload. Also, given that there is no universal understanding of the definition of a probationary period, the additional requirement that an employee may not sign an opt-out whilst serving a probationary period will lead not only to questions of interpretation but also deny such an employee the ability to earn additional income;

1.16 draws attention to the unusual anomaly created by the new proposal that an employee who opts out, when authorised by a collective agreement, may not work in excess of 65 hours in any one week, while recognising that this is an unusually high number of hours to work and would not be the norm, it does mean that whilst an employee who opts-out cannot work more than 65 hours in any one week, an employee who has not opted-out and is therefore subject to the maximum average 48 hour working week, can. In addition, it appears that an employee who works in a workplace where there is no collective agreement or worker representation and who opts-out on an individual basis would also not be subject to the maximum limit of 65 hours in any one week;

1.17 considers that the additional requirement to keep detailed records of all of the hours worked by opted-out workers would add to bureaucracy and that a better solution might be for the Directive to place the responsibilities for prescribing an employer's obligations with the competent authorities within each member state. These authorities will have the ability to integrate such requirements within the overall Member State's health and safety strategy and the obligations placed on employers.

2. The Committee of the Regions' recommendations

The Committee of the Regions recommends

Urgent resolution

2.1 that the Commission, Parliament and Council endeavour to seek an urgent conclusion to the proposals in order that there is clarity and confidence in the Working Time Directive;

Definition of working time

2.2 that the new definition of working time incorporating two new categories of time: ‘on-call time’ and ‘inactive part of on-call time’ be accepted, i.e. that during on-call time, which refers to time when a worker is required to be available at the workplace in order to commence performing his/her activities or duties at the employer's request, the inactive part of on-call time will not be counted as working time unless Member States decide otherwise, or a collective agreement is made to that effect. Periods during the on-call period when workers actually perform work will be classed as working time;

Reference periods for the calculation of average weekly working hours

2.3 that the Commission proposal that Member States be given the ability, if they wish, to set a standard reference period of up to 12 months for all workers, subject to the provision that, in respect of fixed-term employees, the reference period cannot be longer than the length of the employment contract if this is less than one year, be accepted.

Compensatory rest

2.4 that, although the Commission proposal that where workers are denied their right to daily and weekly rest they must be provided with equivalent periods of compensatory rest within a reasonable period which can be no longer than 72 hours, is a significant improvement on the current situation resulting from the ECJ decision in the Jaeger case, in order to account for a wide range of sectors and working practices serious consideration must be given to providing for a longer period over which compensatory rest could be granted. In addition, Article 17 should allow the possibility to extend the time limit, in accordance with national practice, by law or collective agreement;

The individual 48 hour opt-out

2.5 that if the EU and its Member States wish to promote greater entrepreneurship, creativity and active citizenship, and at the same time facilitate a better work-life balance for individuals, the current ability for Member States to utilise the possibility for workers to freely opt-out of the maximum average 48 hour working week on an individual basis should be gradually phased out, in favour of initiatives which promote these other aspirations;

2.6 that the Commission proposal that the ability to opt-out of the 48 hour maximum would only be available where this option is provided by a collective agreement or an agreement between the two sides of industry at national or regional level, or by means of collective agreements at the appropriate level be endorsed.

Further conditions on the 48 hour opt-out

2.7 that the Commission's efforts to ensure that individuals who opt out do so out of a free choice in the knowledge that they may freely opt back in without fear of detriment, be strongly supported;

2.8 therefore that the following conditions be retained: — The worker's agreement must be obtained — No worker is subjected to a detriment because he/she is not willing to agree to opt out.

2.8.1.1 That the following conditions be removed: — The agreement must be valid for a period not exceeding one year, i.e. it must be renewable — No worker works more than 65 hours in any one week, unless the collective agreement provides otherwise.

2.8.1.2 That the following conditions be removed or be reserved to national Member States to implement as required in accordance with their national practices and procedures having regard to their relevance in respect of their own national legal and industrial relations systems: — An agreement given at the time of signature of the individual employment contract or during any probationary period shall be null and void — The employer keeps up-to-date records of all workers who opt out and of the number of hours actually worked — The records are at the disposal of the competent authorities, which may for health and safety reasons, prohibit or restrict the possibility of exceeding maximum weekly working hours — The employer provides the competent authorities, at their request with information on the number of hours actually worked by the workers concerned.