(22 March 2023) European Commission reports on the Working Time Directive, published on 15 March, reveal that Member States’ legislation is generally compliant, but that some problems remain in ensuring that the legislation is having full effect, particularly across all public services. The reports also show that challenges remain in ensuring that workers in health, emergency and other public services are fully protected by the Directive and subsequent case law.
Reacting to the reports, EPSU General Secretary Jan Willem Goudriaan said: “While there is some good news in these analyses about the protection afforded to many workers across Europe by the Working Time Directive, it remains a matter of concern that lots of our members – particularly in health and emergency services – still do not benefit fully from the legislation nor the important case law on on-call and standby time. We urge the Commission, Member States and public employers to take further steps to strengthen implementation, end the use of the individual opt-out and ensure compliance with the case law.”
The five-yearly implementation report and the accompanying staff working document found that exclusions from the scope of the Directive still persist 30 years after the original legislation was passed. The most common examples cover armed forces, police, other security forces and civil protection services including prison staff and public service firefighters, with Ireland, Cyprus and Italy listed as excluding some of these workers. As the Commission makes clear: “Such exclusions are generally not consistent with the requirements of the Working Time Directive, unless transposition of the Directive’s provisions is ensured by collective agreements.”
The report provides some good news in that both the Czech Republic and Latvia have ceased to use the individual opt-out in health services. This opt-out, consistently opposed by European trade unions, allows employers to ask staff to sign away their rights to the maximum 48-hour (average) working week and the provision is in place in four countries in general (Bulgaria, Estonia, Cyprus and Malta) and in 11 countries where its use is linked mainly to jobs with extensive on-call time such as in health and emergency services (Austria, Belgium, Croatia, France, Germany, Hungary, Netherlands, Poland, Slovakia, Slovenia and Spain).
The report also finds that there continue to be problems ensuring workers’ rights to daily and weekly rest and to compensatory rest after working extra hours. In addition, some Member States still do not ensure that all on-call time at work is treated as working time or do not apply it in some sectors, including health, security, law enforcement and emergency services (including Slovenia, Slovakia, Poland, Austria, Estonia and France). This is despite the fact that it is now more than 20 years since European Court of Justice (ECJ) judgements, including SIMAP and Jaeger, established that all on-call time at work is working time.
More recent ECJ rulings set out that any standby time away from the workplace might also be treated as working time depending on the level of constrictions that workers face in terms of response times. These are among the cases covered in the European Commission’s Interpretative Communication on the Directive which summarises the main case law of the past 30 years and is an update of the first Interpretative Communication published in 2017.
In the past six years the key judgements have covered standby time, the recording of working time, the treatment of concurrent contracts and the applicability of the Directive to military personnel:
- The Matzak judgment of 2018 and several other more recent rulings deal with the issue of stand-by time outside the workplace. The Court ruled that whether standby counts as ‘rest’ or ‘working time’ depends on the intensity of the constraints applied to workers affecting how they can use stand-by time. The Commission also reports that the Court appeared to recognise that, even if a stand-by period is qualified as a ‘rest period’, the obligation to be contactable and to react, whose corollary is the deprivation of the right to disconnect, may in fact be harmful to workers’ health and safety if it is imposed too frequently.
- In the CCOO judgment of 2019, the Court ruled that Member States must require employers to set up a system enabling the duration of time worked each day by each worker to be measured.
- The Academia de Studii Economice din Bucureşti judgment of 2021 the Court considered that the minimum daily rest period applies to all an employees’ contracts with the same employer taken as a whole and not to each of them taken separately.
- In the Ministrstvo za obrambo judgment of 2021, the Court confirmed that in principle the Working Time Directive applies to such staff, however certain activities of members of the armed forces can be excluded from the scope of the Directive.
The separate Staff Working Document linked to the Implementation Report makes clear that the issues arising from the rulings on standby time and recording of working time have not yet been widely addressed.