EXCLUSIVE
The 25 Ministers for Employment and Social Policy will be meeting on 7 November in Brussels (from 10:00) in an extraordinary Council which will have only one item on the agenda: the amendment of the “Working Time” Directive on which a public debate will be held and a political agreement hoped for. After several consecutive failures, an agreement is essential. Everyone is of the opinion that it is the last chance to reach agreement. The chances are very slender, for that matter, as the "revision clause" on the individual opt-out, the derogation through agreement with the employee on the weekly limit on working time, provided for by the Finnish Presidency in its last compromise (Europolitique N°3178), is not considered sufficient by countries such as Spain, Italy and France. "It is anything but a revision clause - an Italian diplomat confided to Europolitique - It perpetuates the individual opt-out indefinitely. It would be more of a referral clause sine die".
If no agreement is reached, the proposal will be withdrawn from the agenda and the European Commission will bring proceedings against the Member States infringing Directive 2003/88 on working time, as interpreted by the Court of Justice of the EC (see box). Action will be taken rapidly: "the time to formalise the procedures", European Commissioner for Employment, Vladimir Spidla, confirmed to Europolitique. This action is "all the more necessary as we have been referred several complaints by citizens". It should be recalled that the European Ombudsman gave an ultimatum to the European authority until the end of December to reply on the case of a German doctor whose complaint has not been dealt with (Europolitique N°3153). According to a case expert, these proceedings could be brought in successive waves, but as a priority would focus on the countries committing serious infringements and especially, «those which have put a spanner in the works of an agreement». In the Commission's line of sight are countries which hypocritically call for an end to the individual opt-out but in fact «exploit» all the flexibility and engage in a «de facto opt-out», such as Greece, Spain and France, which could in this way be keeping company with the United Kingdom in a first wave.
23 COUNTRIES COMMITTING INFRINGEMENTS
According to a first analysis carried out by the Commission, the implementation by Member States of the Working Time Directive 2003/88 is shaky. 19 countries contravene the on-call time (Austria, Belgium, Cyprus, Czech Republic, Germany, Denmark, Estonia, Greece, Spain, Finland, France, Hungary, Ireland, the Netherlands, Poland, Sweden, Slovenia, Slovakia and the United Kingdom). 21 countries contravene the compensatory rest (Belgium, Cyprus, Czech Republic, Germany, Denmark, Estonia, Greece, Spain, Finland, France, Hungary, Ireland, Lithuania, Latvia, Malta, the Netherlands, Portugal, Sweden, Slovenia, Slovakia and the United Kingdom). 4 countries contravene the reference period (Germany, Lithuania, Malta and Poland). And 4 countries... the individual opt-out (Spain, France, Hungary and the United Kingdom).
The legislation of only Luxembourg and Italy would appear to be entirely in conformity, at least for the time being. Certain amendments to the legislation in Slovakia and in the Czech Republic, for example, could change the situation.
WHAT THE COMMISSION REPROACHES
Belgium. No legal definition of working time or the arrangements applicable to on-call time. Neutralisation of on-call time at the workplace in several collective agreements. No provision in the Act (16 March 1971) on compensatory rest in the event of derogation from the daily rest period. In the public sector (Act of 14 December 2000), the arrangements for compensatory rest (within the following fortnight) is contrary to case-law.
Cyprus. No definition in the Act (on working time of 2002, which entered into force on 1 January 2003) of on-call time, which is not therefore considered entirely as working time. No legal standard on compensatory rest.
Czech Republic. On-call time is not considered as working time by the labour code. No legal definition of compensatory rest.
Germany. The Working Time Act (Article 7) allows derogation from the working time limits by collective agreement for on-call time (contrary to the Directive). In addition, it permits certain collective agreements allowing extreme derogations to remain in force until end-2006. Compensatory rest in the month following. The daily limit on working time exists, but can be calculated over a six-month period (the Directive provides for 4 months) and even longer by collective agreement (without limiting it to 12 months as provided for by the Directive).
Denmark. The collective agreements (traditional means of applying European social law) do not provide systematically that on-call time at the workplace must be considered as working time. The law does not impose a maximum period for granting compensatory rest.
Estonia. The Working Time and Rest Periods Act provides (Article 2.1) that on-call time is a period of rest, without drawing a distinction according to whether or not the employee is present at the workplace. No legal provisions on compensatory rest.
Greece. For want of a legal definition, ministerial orders impose on-call periods in the public hospitals which, added to the normal working time, «go far beyond» the 48-hour limit. The granting of compensatory rest by collective agreement, without legal framework, is contrary to the Directive.
Spain. Although an Act of December 2003 (55/03) brought the legislation in line with the case-law (Simap judgment), this reform is confined to the statutory personnel of the health sector; other sectors (prison sector, police, etc.) still fail to conform. Provision is made for compensatory rest, but on the basis of a weekly average, over a reference period.
Finland. Finnish law does not draw a distinction between on-call time at the workplace and at home or elsewhere. The compensatory rest may be taken within a period of one month (daily rest) and three months (weekly rest).
France. The system of «equivalent periods» (Article L.212-4 of the Labour Code), allowing certain «periods of inaction» not to be taken into account, was condemned by the Court of Justice (Dellas judgment) and does not conform to the objective of health and safety of workers. No law or regulation (Article D.220-1) guarantees that compensatory rest immediately follows the working time.
Hungary. According to Hungarian law, on-call time with physical presence at the workplace is not considered entirely as working time. In addition, case-law and practice have established the stand-by job concept, which includes a significant proportion of activity. The working time is then increased considerably (by 8 to 12 hours more per day in addition to the normal working time). No legislative provisions on compensatory rest.
Ireland. The 1997 Organisation of Working Act contains a definition of working time which is similar to that of the Directive. However, it does not specify that the on-call time is considered entirely as working time, as provided for by case-law. Likewise, the concept of compensatory rest recorded is not strictly in accordance with case-law.
Lithuania. No legal standards on compensatory rest in accordance with case-law. In several sectors (agriculture, telecommunications, fishing, transport, etc.), the derogations relating to the reference period exceed that which is permitted by the Directive.
Latvia. No legal provisions on compensatory rest in accordance with case-law.
Malta. Act 247/2003 does not define on-call time or provide for applicable arrangements. This gives rise to legal uncertainty. The law does not require the compensatory rest to be guaranteed in the period immediately following the working time concerned. A reference period of one year is provided for by law in sectors (processing industry, tourism) where it is authorised only by collective agreement.
The Netherlands. Collective agreements may derogate from case-law regarding on-call time. The law also provides for derogations regarding daily and weekly rest which are not in keeping with the case-law.
Poland. In the health sector, on-call time is not taken into account for the calculation of working time, even though it is more generously remunerated than ordinary working time. The reference period may be increased to 12 months by law.
Portugal. Derogations from the daily and weekly rest periods may be granted by law, on condition that compensatory rest is guaranteed within the following 90 days (Articles 176, 207, 202 of the Labour Code).
Sweden. Although the Working Time Act, amended in 1996, provides that collective agreements may not reduce the level of protection provided for by the Directive, the national authorities tolerate in practice and in the collective agreements that on-call time with physical presence at the workplace is not taken into account entirely in the working time. The law does not require the compensatory rest to be guaranteed in the period immediately following the working time concerned.
Slovenia. According to the legislation specific to the health sector, only the active part of on-call time is considered as working time. In the other sectors there is a lack of precision, since the Labour Relations Act (42/02) contains no provisions. Compensatory rest is only guaranteed within a period of two months.
Slovakia. To date, the Slovakian Labour Code does not consider the inactive part of on-call time as working time. The on-call time is however limited to 8 hours per week, 36 hours per month (this legislation is apparently in the process of amendment). The law does not require compensatory rest to be guaranteed in the period immediately following the working time concerned.
United Kingdom. The 1998 Working Time Regulations, amended in 2003, contain a definition equivalent to that of the Directive but do not integrate the interpretation of the Court of Justice. Although provision is made for compensatory rest, it is not specified that it must follow the working time.
THE INFRINGEMENTS OF THE OPT-OUT
Spain. The individual opt-out is authorised for the staff of health centres, but it is left to them to establish the terms for the agreement of the worker. It also provides for a minimum period in which the agreement cannot be terminated. This is in contradiction with the Directive «in view of the exceptional and derogating nature» of this measure.
France. By decree (No 2002-1421 and following), workers are permitted «on a voluntary basis» to have «additional working time» beyond the weekly limits, but without benefiting from the guarantees provided for by the Directive (Article 22 §1 (b) to (e)).
Hungary. The individual opt-out is permitted in the health sector. The agreement of the worker is required, but without incorporating all the guarantees provided for by the Directive (Article 22 §1 (b) to (e)).
United Kingdom. The supporting arrangements for the individual opt-out give rise to several questions. The obligation to keep registers on hours worked has been reduced to the obligation to keep registers of all workers having signed an opt-out agreement. Freedom of choice is not guaranteed, since law and practice allow the simultaneous signature of the opt-out agreement and the contract of employment. Only a general clause, which is too vague, guarantees that the worker will not suffer any disadvantage. The period of notice to cancel the opt-out (three months) is disproportionate.
THREE RULES NOT RESPECTED
On-call time. The time, even the inactive part, with physical presence at the workplace must be taken in account in full in the working time (Simap judgment 3 October 2000, Jaeger 9 September 2003, Dellas 1 December 2005). The Directive does not allow any derogation from the maximum weekly working time by collective agreement.
Compensatory rest. In the case of derogation from the daily and weekly rest periods, compensatory rest must immediately follow the working time concerned (Jaeger judgment).
Reference periods. The current Directive only authorises derogations from the reference period in certain cases: 1. for mobile workers, offshore activities, doctors in training (during the transitional period) by collective agreement or by law; 2. for certain jobs: managing executives or other persons with autonomous decision-taking powers, workers on board sea fishing vessels.
By Nicolas Gros-Verheyde
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