WORKING TIME DIRECTIVE : EXECUTIVE PROPOSES EITHER TARGETED OR BROAD REVISION.
"The current situation is not sustainable politically or legally," commented Employment Commissioner Laszlo Andor, referring to the results of the report on implementation of the directive currently in force (1) published the same day. The report concludes that while 16 member states currently apply the derogation from the 48-hour work-week, not all set a threshold for hours spent at the workplace (up to 72 hours in Hungary, for example).
"We need a fresh start and a new EU-level approach to working time," added the commissioner. He acknowledges that this will not be easy. The first phase of consultation gives the Commission little leeway, because while all the social partners agree on the need to revise the directive, they disagree on the context, scope and objectives of such revision. Employers seek more flexibility, while the European trade unions are pressing for stronger protection of workers. No framework agreement should be expected from the social partners, who could have decided to address these matters through social dialogue under Article 155 TFEU. The Commission will therefore continue its consultation before drawing up an amending legislative proposal based on the submissions.
ON-CALL TIME AND REST PERIODS
From the dual standpoint currently under consideration by the Commission, the revision will at least cover matters of on-call time and compensatory rest periods, which according to an independent study published on 21 December are the source of considerable legal uncertainties.
In its consultation document, the Commission suggests a flexible approach to on-call time, namely that such periods should be treated as working time but that certain derogations should be allowed. At present, only nine member states consider on-call time as working time in their national legislation, in spite of the Simap and Jaeger rulings by the EU Court of Justice. The approach under consideration by the Commission would include a different calculation method for on-call time in a number of defined sectors and consider on-call time away from the workplace more favourably.
On the question of compensatory rest periods, ie rest periods granted where normal rest periods cannot be taken, the Commission seeks more flexibility, to the displeasure of states and enterprises. According to the EU executive, rest periods must be taken immediately after finishing work and imperatively before any new period, in accordance with the Jaeger ruling, even if certain situations can require more flexibility.
On both issues, the Commission wishes to reach negotiated solutions at local and sectoral level through an appropriate EU framework.
DEROGATIONS AND REFERENCE PERIOD
The second approach is to carry out a broader revision tackling derogations, autonomous workers or multiple contracts, as well as the reference period.
On derogations, the Commission informs the social partners that it is not presently considering withdrawing the opt-out, but that it will address this question through the matter of compensatory rest periods and on-duty time.
On its approach, it reiterates that the directive must apply as far as possible by worker (and not by contract) and take account of the specific nature of certain duties, such as those of volunteer fire-fighters or professional drivers.
On the reference period, used to evaluate compliance with the 48-hour work-week, the Commission suggests extending it to 12 months in states not using the derogation. In certain specific cases, this period could be extended at the request of the social partners.
The social partners are invited to submit their views on the options presented by the Commission by the end of February 2011.
The consultation document is available at http://ec.europa.eu/social/main.jsp?langId=fr&catId=89&newsId=964&furtherNews=yes
(1) Directive 2003/88/EC
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|Date:||Dec 22, 2010|
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