EN Official Journal of the European Union C 267/16

Opinion of the European Economic and Social Committee 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

(COM(2004) 607 final — 2004/0209 COD)

(2005/C 267/03)

On 20 October 2004 the Council decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 21 April 2005 The rapporteur was Ms Engelen-Kefer.

At its 417th plenary session, held on 11-12 May 2005 (meeting of 11 May), the European Economic and Social Committee adopted the following opinion by 160 votes to 101, with eight abstentions.

1. Introduction

1.1 On 22 September 2004 the European Commission submitted its 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 (1).

1.2 The Commission justifies its proposed amendment firstly on the grounds that the need for review is implicit in the Directive itself. Two of its provisions, in fact, stipulate a review before 23 November 2003. These concern the derogations to the reference period for the application of Article 6 (maximum weekly working time) and the possibility of not applying Article 6 if the worker gives his agreement to carry out such work (Article 22, individual opt-out). The Commission also states that the interpretation of the Directive by the European Court of Justice has an impact on the concept of ‘working time’ and, consequently, on essential provisions of the Directive, which are therefore to be reviewed.

1.3 The two-stage hearing of the social partners agreed upon has revealed that they declined the Commission's call to commence negotiations on this question. They have instead asked the Commission to adopt a proposal for a Directive.

1.4 The Commission further points out that a balanced solution is required which covers the key issues submitted to the social partners for comment, and that this must meet certain criteria. They must: — ensure a higher standard of protection of workers' health and safety with regard to working time; — give companies and Member States greater flexibility in managing working time; — allow greater compatibility between work and family life; — avoid imposing unreasonable constraints on companies, in particular SMEs (2).

1.5 The Commission is of the opinion that the present proposal takes account of these criteria.

2. Gist of the Commission proposal

2.1 Definition of terms (Article 2) (3)

2.1.1 The definition of working time remains unchanged. Two new definitions are introduced: ‘on-call time’ and ‘inactive part of on-call time’. The latter is defined as a period during which the worker is on call ‘but not required by his employer to carry out his activity or duties’ (Article 2 (1b)).

2.1.2 It is also specified that the inactive part of on-call time ‘shall not be regarded as working time, unless national law or, in accordance with national law and/or practice, a collective agreement or an agreement between the two sides of industry decides otherwise’ (Article 2a).

2.2 Reference Period (Articles 16 and 19) and Compensatory Rest Period (Article 17)

2.2.1 The reference period for the maximum weekly working time under Article 6 continues to be limited in principle to ‘a period not exceeding four months’. An addendum is proposed which states that Member States may, ‘by law or regulation, for objective or technical reasons, or reasons concerning the organisation of work, extend the reference period referred to above to twelve months’ (Article 16 b). In such a case the general principles of protection of worker health and safety and of consulting social partners are to be respected and social dialogue promoted.

2.2.2 The present limit of six months on derogations from the reference period for the maximum weekly working on the basis of collective agreement ceases to apply. The Member States can, however, allow, 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, concerning the maximum weekly working time, in no case exceeding twelve months’ (Article 19). In such a case, the general principles of worker health and safety protection are to be respected.

2.2.3 Articles 3 and 5 of the Directive stipulate daily rest periods of 11 consecutive hours per 24-hour period and weekly rest periods of 24 hours per 7-day period in addition to the daily rest period of 11 hours. If there is a derogation from this requirement, workers must be granted equivalent compensatory rest periods. In connection with derogations from the Directive's minimum level of regulation for certain activities and groups of workers, including in the health sector, the period within which equivalent compensatory rest periods should be provided is specified as ‘within a time limit not exceeding 72 hours’ (Article 17(2)).

2.3 Individual opt-out (Article 22)

2.3.1 Under the Directive in force the Member States have the possibility, under certain conditions, of not applying Article 6 on the maximum weekly working time, providing the employee gives his consent. The proposed amendment retains this possibility of individual opt-out, but expressly adds the requirement that this be provided for in a collective agreement. If no collective agreement is in force and there is no worker representation in the company, it should still be possible not to apply Article 6 on the maximum weekly working time on the basis of an individual agreement with the employee. The general principles of worker health and safety protection are to be respected.

2.3.2 The following conditions for use of the individual opt-out are not in the Directive in force: — This necessary consent of the employee shall be valid for a period not exceeding one year, renewable. It is not valid if given when the contract of employment is signed or during the probation period. — The Member States must ensure that no worker works more than 65 hours a week, unless the collective agreement or agreement between the two sides of industry provides otherwise. — Records to be maintained by the employer must register the actual hours worked and the employer must place these at the disposal of the competent authorities when so required.

2.3.3 The proposed amendment also stipulates that within five years of the Directive entering into force, the Commission shall submit a report on its application, and especially on the application of the individual opt-out.

3. General evaluation

3.1 The European social partners have widely differing positions on the revision of the Directive and have therefore made no use of the possibility afforded in Article 139 of the TEC to conclude an agreement. The diverging positions which emerged from the second Commission consultation are set out in the reasoning of the Commission's proposed amendment. The ETUC was ready to start negotiations, but the employers showed no interest, as ‘in the light of the ETUC reactions to the Commission consultation documents, UNICE [saw] no prospect for reaching agreement on how to revise the directive through negotiations in the social dialogue’ (4). The EESC regrets that negotiations between the social partners did not take place. It does not, however, see its role in being a substitute for these negotiations between the social partners. Rather, it reiterates once more that working time is precisely the issue in which the social partners have a very important role to play (5). In the EESC's view, the Commission and Council would be well advised to seek a compromise with the European Parliament which would take equal account of the interests of both social partners. In its opinion, the Committee will therefore concentrate on general considerations and evaluations of the Commission's proposed amendment.

3.2 The globalisation of markets and production and the related increase in the international division of labour presents new challenges to businesses and the European economy as a whole. There is no doubt that globalisation is leading to more intense international competition and the need to accommodate to changed market conditions. This development also puts pressure on the European social model, the essence of which is that economic power and social progress go hand in hand. The European development model, which is embodied in the Lisbon Strategy, is based on an integrated strategy to promote economic performance, investments in people, social cohesion, quality of work, a high level of social protection and recognition of the importance of social dialogue. An important instrument of European social policy, minimum labour standards should lead to an improvement in the level of protection and thereby limit competition over labour standards while avoiding distortions to competition. The revision of the working time Directive should be examined against this backdrop in terms of whether it meets this goal.

3.3 The EU working hours directive establishes minimum rules for achieving the Community's social objectives as set out in the Treaty. The Treaty's social provisions formulate the goal of ‘improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained’ (EC Treaty, Article 136). Explicit reference is made to the European Social Charter of 1961 and the 1989 Community Charter of the Fundamental Social Rights of Workers; the spirit of these is to be respected in pursuing the Community's social objectives. According to the 1989 Community Charter of the Fundamental Social Rights of Workers, ‘Every worker must enjoy satisfactory health and safety conditions in his working environment’ and ‘Appropriate measures must be taken in order to achieve further harmonisation of conditions in this area while maintaining the improvements made.’ (6) The social right to just working conditions is formulated in the Council of Europe's European Social Charter of 1961 (revised 1996), which all EU Member States have recognised. The Charter sets out the duty of the Member States ‘to provide for reasonable daily and weekly working hours [and for] the working week to be progressively reduced’ and ‘to ensure a weekly rest period’ (Article 2). The spirit of both Charters is that the limiting and progressive shortening of working time constitutes a fundamental social right and that harmonisation through a minimum level of regulation at European level must lead to social progress.

3.4 The European Union Charter of Fundamental Rights, which is part of the future EU Constitution, establishes the right to limitation of the maximum working time as a fundamental social right binding for the Union. The fundamental right of fair and just working conditions is specified thus: ‘Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.’ (7) The EESC is of the view that the evaluation of the Commission's proposed amendment must be based on this movement at European level towards a fundamental social right and take account of this context. This raises the question: does the amendment contribute to achieving this fundamental social right through a Europe-wide minimum level of regulation, or is it the case, instead, that the room for flexibility will be broadened to the benefit of economic interests, without the needs of employees for protection being taken into account at the same time? In this case, we would be a long way from an appropriate response to the novelty of the innovations to be achieved in terms of entrepreneurial flexibility and guarantees of security for workers, as called for by a service and knowledge-based society for all businesses, but more particularly for small and medium-sized enterprises and enterprises in the social economy.

3.5 The proposed amendment is further to be judged on the degree to which the goals set by the Commission itself are attained. These are to combine the improvement of work and health protection with greater flexibility in working time arrangements, in particular a better balance between work and family, while avoiding disproportionate burdens for SMEs. The EESC has already addressed these goals in its opinion on the Commission's Communication ‘Re-exam of Directive 93/104/EC’ (8) and concluded that ‘the directive should be regarded as providing a certain degree of negotiating flexibility’ (9). At the same time it found that ‘National legislation on working time is generally based on employers and employees taking joint responsibility for ensuring that working time is organised satisfactorily. It is up to the social partners at various levels in the Member States to resolve any working time issues that emerge in the workplace, basing their decisions on working time rules and as part of collective agreements.’ (10) The EESC feels that it is primarily the responsibility of the Member States to ensure general work and health protection through legal limitation of the maximum working week. The parties to collective agreements, on the other hand, can agree flexible forms of work organisation — within the maximum limits established by legislation and collective agreement — which can take into account the special needs in a sector and at the same time guarantee work and health protection, and thus reconcile flexibility and social security. What is important in the EESC's view is a good balance between flexibility and social protection, and this is best guaranteed through regulations established by collective agreement.

3.6 Under the present Directive the four-month reference period for overtime can only be extended by collective agreement. The proposed amendment allows Member States for the first time to extend the reference period — generally to twelve months — through legal and administrative measures. The EESC addressed this question in its earlier opinion and concluded: ‘As a 12-month reference period is already used in many Member States by virtue of collective agreements, the EESC feels, given the current provisions, which allow for the option of extending the reference period through collective agreements, that the social partners have the necessary flexibility to adjust working time to deal with different situations in Member States, sectors, and companies. Therefore, these provisions should be retained.’ (11) In the EESC's view, flexible working time models under the Directive in force and those based on collective agreements also promote the interests of workers in having greater control over their time, enable them to safeguard their health and safety, which are vital, and, above all, promote a greater compatibility of work and the family.

3.7 Under the Commission's proposal, the so-called inactive part of on-call time should not be regarded as working time and is in part defined by the employer calling on work to be performed. The adoption of a definition of on-call time and, above all, of the inactive part of on-call time, is not in harmony with the rulings of the European Court of Justice in the cases of Simap, Sergas, Jaeger and Pfeiffer, in which it was ruled that ‘being available at the workplace’ is itself work and must therefore be calculated as working time (12). This ruling is based not only on an interpretation of the wording of the current Directive in force, but on its sense and purpose, including international legal bases such as the ILO Conventions 1 (Industry) and 30 (Commerce and Offices) and the European Social Charter. This means that the Member States should have complied in their national working time law with the European Court of Justice's interpretation of the concept of working time in the Directive in force.

3.7.1 Involving the employer's call to work means that being on call at the workplace no longer constitutes performance of work. This position fails to recognise the fact that employees on call are not free in what they do at the workplace and neither have free time nor can claim rest time. It is the nature of being on call that the employee cannot use his time as he wishes, but must be constantly at a workplace ready for work — i.e. available. Putting this distinctive situation on the same footing as ‘rest time’ would lead to excessively long working time, which would substantially imperil the work and safety protection of the workers concerned. Moreover, it seems hardly possible in practice to use the absence of an explicit call to perform work as the basis for defining inactive time. Whether a particular activity is performed depends on the demands of the workplace at any given time and not on a call from the employer, as can easily be imagined in the case of a hospital or the fire service.

3.7.2 It its earlier opinion the EESC stated that ‘the way working time rules are framed in collective agreements is of vital importance to the social partners, which have a wealth of expertise and experience in these matters.’ (13) In the EESC's view, this also holds in particular for the legislation of working time organisation in the case of being on-call. This should therefore be left to the parties to collective agreements, the parties being obliged to comply with the key legal texts referred to in point 3.7.

3.7.3 The EESC is aware of the fact that in different branches, professions and businesses different conditions apply to the demands made during on-call time. However, in the EESC's view, the Commission's proposal for a general division into an active and an inactive part of on-call time does not contribute to solving these practical problems. As a special form of working time, on-call times need special regulations — tailored to the needs of this or that branch or activity — which will have to be negotiated by the partners to collective agreements. The practice of collective agreements has set many good precedents for this.

3.8 The directive in force sets no time limit for granting equivalent compensatory rest time in the case of derogations from minimum regulations on the rest periods to be observed. There is therefore a clarification and specification in the amendment; this, however, is not in harmony with the relevant ruling of the ECJ. In its decision in the Jaeger case, the ECJ ruled that compensatory rest periods were to be granted without delay. The EESC is of the view that a limited amount of flexibility in granting compensatory rest periods, which the amendment is intended to achieve, could be in the interests of both the business and the worker concerned, if work and safety protection are also taken into account. Here, too, it should be left to the partners to collective agreements — on the appropriate level dictated by national practice — to find solutions geared to the requirements in different businesses.

3.9 The individual opt-out is a general derogation from the minimum level of regulation in the Directive on maximum working time. It is true that the proposed amendment formulates a few additional conditions which may limit misuse. However, the fact that the individual opt-out is in principle subject to collective agreement cannot mask the fact that the responsibility for work and health protection is transferred through the legal limitation of the maximum working week from the Member States to the social partners. Moreover, this derogation can still be used where no collective agreement is in place and there is no representation of workers' interests in the company or undertaking.

3.9.1 In its earlier opinion the EESC addressed the possible consequences for work and health protection of this derogation and pointed out that the derogation ‘can thus only be applied if the Member State respects “the general principles of the protection of health and safety of workers”’ (14). The EESC recognises that the Commission is endeavouring with its proposed amendment to limit misuse. It doubts, however, that the proposed additional conditions fulfil this purpose. The EESC would ask whether the retention of the individual opt-out does not, on the whole, run contrary to the very aim of the Directive as a European minimum level of regulation to protect the health and safety of workers. That the Commission shares these reservations clearly emerges from its communication in the first phase of the consultations of the social partners, which states: ‘Existing provisions in Article 18.1 b) i) that give the possibility of being able, on a voluntary and individual basis, to work more than 48 hours per week, averaged out over a given period, could put at risk the Directive's aim of protecting workers' safety and health.’ (15) It goes on to say: ‘It also brings out an unexpected effect in that it is difficult to ensure (or at least check) that the other provisions in the Directive have been complied with, concerning whether workers have signed the opt-out agreement.’ (16) The EESC would therefore ask why the Commission did not make use of the option it referred to in its consultation paper in the second phase of the consultation of the social partners, namely to take up the proposal of the European Parliament and ‘revise the individual opt-out with a view to its phasing out as soon as possible. In the meantime, tighten the conditions for application of the individual opt-out under Article 18.1 (b) (i) with a view to strengthening its voluntary nature and preventing abuses in practice.’ (17)

3.10 It is also a broad aim of the Commission's amendment to contribute to greater compatibility between work and the family. On this question the Commission refers to the amendments proposed for Art. 22(1) (individual opt-out) and Recital 6, which contains the invitation to the social partners to conclude appropriate agreements. The EESC is of the view that the Commission is taking the soft option with these references. Greater compatibility of work and the family requires working times that can be planned and calculated in advance, i.e. a flexibility which is not geared unilaterally to the demands of business, but gives the parents concerned space for dividing working time according to the needs of the family. The individual opt-out is in no way conducive to this, as it makes possible a prolongation of the daily and weekly working time beyond the Directive's minimum level of regulation. The EESC had already stated in its earlier Opinion that: ‘The opt-out would thus seem to have a negative effect on equal opportunities between women and men.’ (18) In the EESC's view, the Directive in force is sufficiently flexible to take account of the special needs of families, while the individual opt-out makes things more, rather than less, difficult.

4. Conclusions

4.1 In the EESC's view, the points made in the general evaluation of the proposed amendment raise legitimate doubts as to whether the Commission's proposed amendment is capable of actually achieving the goals pursued. These doubts relate particularly to the intended balance between flexibility and work and health protection, and therefore to the greater compatibility between work and the family. If the conclusion is that the amendment does not achieve a good balance between these goals, the only logical consequence is to amend the Commission's proposal. In the EESC's view, it now falls to the European Parliament, through the legislative process, to present the necessary proposals for amendments. On this question, the EESC takes the view that there is some justification for asking whether the individual opt-out, which could possibly invalidate the Directive's core minimum level of regulation on the maximum weekly working time, is in harmony with the fundamental rights goals of the new EU Constitution.

4.2 The EESC would also like to stress once again that it is the prime task of the parties to collective agreements on the national level to agree on flexible working models which take account of the specific needs in a given sector, while respecting fundamental rights. This holds in particular for the regulation of on-call time as a distinct form of working time.

4.3 The EESC therefore requests the EU Commission, the European Parliament and the EU Council, in revising the directive, to be mindful of the following: — the prime role of the parties to collective agreements in examining the reference period for calculating the weekly maximum working time and keeping it within the present bounds of the directive; — the guaranteeing of a basis for on-call time which is in harmony with the ruling of the ECJ and gives precedence to solutions achieved through collective agreement; — measures for working time organisation which are conducive to greater compatibility of work and the family; — examination of the individual opt-out to determine whether its retention does not run counter to the spirit and aim of the Directive itself.

Brussels, 11 May 2005. The President of the European Economic and Social Committee Anne-Marie SIGMUND

(1) COM(2004) 607 final – 2004/209 (COD)

(2) COM(2004) 607 final – 2004/209 (COD), p. 3-4

(3) The articles mentioned in points 2.1, 2.2 and 2.3 refer to Directive 2003/88/EC

(4) Letter of 2.6.2004 from UNICE to Commissioner Dimas

(5) Opinion of the European Economic and Social Committee on the Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions and the social partners at Community level concerning the re-exam of Directive 93/104/EC concerning certain aspects of the organisation of working time, 2.2.5 (OJ C 302 of 7 December 2004, p. 74).

(6) Community Charter of the Fundamental Social Rights of Workers, point 19

(7) Article 31 of the European Union Charter of Fundamental Rights, Article II-91 of the Draft Constitutional Treaty

(8) Commission Communication of 15.1.2004 (COM(2003) 843 final)

(9) See the EESC Opinion (point 2.2.8) referred to in footnote 5

(10) Idem, 2.2.7

(11) Idem, 3.1.7

(12) Idem, 3.2.2

(13) Idem, 2.2.6

(14) Idem, 3.3.2

(15) COM(2003) 843 final of 30 December 2003, p.25 (several linguistic mistakes in the quote have been corrected). The article mentioned refers to Directive 93/104/EC.

(16) Idem p. 22

(17) Commission consultation paper: Second stage of consultation of the social partners at the Community level concerning the review of Directive 93/104/EC concerning certain aspects of the adaptation of the working time, document SEC(2004) 610. The article mentioned refers to Directive 93/104/EC.

(18) See the EESC Opinion (point 3.3.6) referred to in footnote 5