Revision of the EU Working Time Directive (2011)
In April 2009, the revision of the Working Time Directive (2003/88/EC) had failed. The European Parliament and the Council had been unable to agree, in the context of the joint committee procedure, on a new legal text. The main point of contention at that time was the question of dealing with on-call time, multiple employment contracts and the admissibility of the opt-out arrangement. The latter allows an on-going exception to the maximum 48-hour working week.
In March 2010, the Commission ventured a new drive towards revising the Working Time Directive with the introduction of a first-phase consultation of the European social partners. Then, before the end of 2010, it initiated the second-phase consultation. As well as analysing the contributions from the preceding consultation and presenting the findings from recent studies about working time trends and patterns and the Directive’s economic and social impact, the Commission sets out two main options for a revision of the Working Time Directive. The first option envisages reducing the amendment of the Working Time Directive to certain points. In this respect, the Commission suggests, with reference to the difficulties of implementing the SIMAP–Jaeger case law, concentrating on on-call time and compensatory rest.
The Commission emphasises that these two points are particularly important for those areas where continuity of service must be provided on a 24-hour basis. By way of clarification, the Commission lists as examples the following areas: public healthcare, residential care, and emergency services such as the police and fire service.
The second option, by contrast, envisages a “comprehensive review”, in which the revision of the Directive is not reduced to the most urgent areas identified as in the first option. Here, the Commission considers that the changing working patterns and the corresponding trends could be taken more fully into account and the health and safety issues raised by excessive working hours could be looked at in a more holistic way. In this context, by way of examples, more flexible forms of work organisation, work-life balance in view of new demographic realities, multiple contracts and the opt-out are cited among many other issues.
The Commission further invited the social partners at European level to declare their possible willingness to enter into the social dialogue. Under the provisions of the Treaty on the Functioning of the European Union, the social partners are themselves given the opportunity to contribute in a formative way to the legislative process. In practical terms, this means that the social partners conclude an agreement, which is then implemented either in accordance with the procedures and practices of the social partners and the Member States or, in areas within the competence of the EU (as in this case), by a Council decision on a proposal from the Commission.
As part of an exchange of views in the competent committee – the Committee on Employment and Social Affairs of the European Parliament – on 14 April 2011, the social partners (BusinessEurope, ETUC, UEAPME, CEEP and EPSU) expressed their basic interest in starting negotiations; however, there appears to be disagreement as regards the concrete object of negotiation: BusinessEurope favours concentrating on the areas which are critical on the basis of the case law, while the European Trade Union Confederation (ETUC) favours comprehensive negotiations.
Positioning of Sunday in the context of a potential amendment to the Directive
With an eye to the possible embedding of Sunday as the fundamental weekly day of rest in a revised Working Time Directive, the Commission’s comments concerning compensatory rest need to be examined. In this connection, it basically argues for new provisions in order to clarify the timing of weekly compensatory rest. In the first-phase consultation, some replies had called for more flexibility on the timing of compensatory rest. However, the Commission objects to these demands, citing the results of recent research which “confirms severe health and safety effects of delaying minimum daily or weekly rest periods”. Nevertheless, it admits that, in a range of specific situations, more flexibility would be needed. The fact that the Commission emphasises the exceptional nature of such situations can be considered as positive.
When it comes to the “question of whether the weekly rest should normally be taken on a Sunday rather than on another day of the week,” the Commission seems to want to play the subsidiarity card. On the one hand it points to the complexity of the question, while on the other hand it admits that the effect on health and safety and work-life balance, as well as issues of a social, religious and educational nature, would need to be taken into account. However, the Commission argues that this does not necessarily make it an appropriate matter for legislation at EU level.
European Sunday Alliance formed
In parallel with the situation concerning revision of the Working Time Directive as described above, in recent months an initially small group has grown to form the European Sunday Alliance. Inspired by the success of the first conference for the protection of a work-free Sunday in March 2010 in the European Parliament (cf. europeinfos no. 127), the idea was quickly born among the supporters at that time to establish a European platform for the protection of Sunday and decent working hours. They want to introduce the European Sunday Alliance to the public in the framework of an experts’ conference concerning the revision of the Working Time Directive on 20 June 2011 in the EESC in Brussels. The representatives of interests who have combined within the alliance either as members or as supporters consider that a work-free Sunday and decent working hours are highly beneficial for citizens throughout Europe and “that all citizens of the European Union have the right to decent working hours which, as a matter of principle, excludes late evenings, nights, legal holidays and Sundays from core working hours.” In their opinion, “legislation and practice at EU and at Member State level [should] guarantee better protection of the health, safety and dignity of each individual and pay more attention to promoting the reconciliation of professional and family life.” (cf. the founding Statement). The European Sunday Alliance is open to civil society organisations (family associations, sports associations, etc.), national and local Sunday alliances, trade union movements and socially responsible employers as well as the Churches and religious communities, and invites them to join the Alliance and, not least, to take steps to promote the protection of work-free Sundays and decent working hours.