The Work Time Directive
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HISTORY OF LEGISLATION ON WORKING TIME
1818
Robert Owen presented a petition to the five leading European powers meeting at the congress of Aix-la-Chapelle. The document asked for the establishment of working hours restrictions throughout Europe in order to stop unfair competition.
1919 The International Labour Organisation adopts the “Hours of Work (Industry) Convention” at a conference convened by the USA in Washington DC
Preamble: "Having decided upon the adoption of certain proposals with regard to the application of the principle of the eight-hours day or of the 48-hours week ".
Article 2: “The working hours of persons employed in any public or private industrial undertaking or in any branch thereof, other than an undertaking in which only members of the same family are employed, shall not exceed eight in the day and 48 in the week.” (with some exceptions provided for)
1961 Social Charter of the Council of Europe
Article 2: Member States of the Council of Europe agreed to ensure "reasonable daily and weekly working hours".
1989 The European Community Charter of Fundamental Social Rights for Workers
"The completion of the internal market must lead to an improvement in the living and working conditions of the workers in the European Community. This process must result from an approximation of these conditions while the improvement is being maintained, as regards in particular the duration and organization of working time"
Note : Signed by the EC Member States, with the exception of the UK, then under a Conservative government. (Britain signed in 1997 following the election of a Labour government.)
1993 The Working Time Directive (Council Directive 93/104/EC)
Article 6: "The average working time for each seven-day period, including overtime, does not exceed 48 hours" (calculated as an average over a 4 month period)
However, the directive contained an opt-out: Article 18(1)(b)(i) "However, a Member State shall have the option not to apply Article 6 , while respecting the general principles of the protection of the safety and health of workers" (...)
The UK's then Conservative government did not vote against the directive, but abstained. However, it later challenged the validity of the directive in the European Court of Justice, which dismissed its application for annulment of the directive. "The Court holds that the Council did not commit any manifest error, was not guilty of misuse of powers and did not manifestly exceed the bounds of its discretion." (Case C-84/94, judgment given in 1996 )
The UK has used the opt-out more widely than other Member States, though some of them have enforced the directive per job, not per worker (ie allowing two contracts to total more than 48 hours)
1999 Charter of Fundamental Rights of the EU, approved by all Member States, but not incorporated into the treaty:
Article 31: Every worker has the right to limitation of maximum working hours".
2000 Simap Case C-303/98 at the European Court of Justice
Under the terms of the Working Time Directive, "Time spent on-call by doctors in primary health care teams must be regarded in its entirety as working time".
2003 Jaeger Case C-151/02 at the European Court of Justice
"Council Directive 93/104/EC must be interpreted as meaning that on-call duty performed by a doctor where he is required to be physically present in the hospital must be regarded as constituting in its totality working time".
REVIEW OF THE WORKING TIME DIRECTIVE
(Commission proposal COM 2004 607 final)
The requirement for a review of the working time directive was built into the original directive. Two aspects of the agreed text were to be subject to review ten years after the directive entered into force – the period over which the calculation of working time is averaged (the “reference period”) and the operation of the individual opt-out.
Arguments have raged. On the one hand, it is argued that the law should allow those who genuinely want to do so, to work longer and earn more. If a fit and able employee voluntarily chooses to work longer hours for a few years, perhaps in response to economic needs, why should the law forbid him or her to do so? It is also argued that the extra flexibility provided in the labour market can contribute to a country's economic performance. Finally, it is argued that some sectors, such as health care, cannot at present manage with a 48-hour maximum limit on working time. Indeed, the above mentioned Court judgments (SiMap and Jaeger) set alarm bells ringing in health and financial ministries across the capitals and a number of member states sought to use the opt-out in their health sectors.
On the other hand, there are serious objections to the very principle of opting out of health and safety legislation. Individuals cannot opt out of obligations to wear protective gear, not to smoke in many public places, and so on. Why should they opt out of legislation responding to growing medical evidence that regular long working hours can seriously damage health, not to mention the dangers that can be inflicted on others by over-tired doctors, lorry drivers, etc?
As a result, the Commission proposed a package: a) that opt-outs be subject to collective agreements, b) that "inactive part of on-call time" not be considered as working time, c) that the reference period for calculating the average weekly working time should remain four months.
This proposal was amended by the European Parliament in its first reading in July 2005 to provide for a gradual phase-out of the opt-out, but combined with a more flexible 12-month reference period. Such “annualisation” means that a worker could work 60 hours per week for 24 weeks of the year, if he or she then averages 36 hours per week for the other 24 (the four weeks annual leave granted by the directive are left out of the calculation).
The proposal has since been stuck in the Council, which must take a position by qualified majority (over 70% of the votes) to be referred back to the European Parliament for a second reading. Council has been almost equally divided between Member States that want the individual opt-out to continue (lead by UK, Germany, Poland) and those insisting that it must end (lead by France, Spain, Italy).
Despite successive attempts by the Finnish Presidency to produce proposed compromises, Council failed again at its meeting of 7 November 2006 to adopt a position, when France, Spain, Italy, Greece and Cyprus opposed the latest compromise. The issue remains deadlocked. The German government, which will have the Presidency of the Council from January to June 2007, has said it sees no prospect of taking the matter further during their term, which will leave it to the Portuguese Presidency from July 2007 (unless the Commission decides to withdraw the proposal and make - or not - a new one). By next July, there may be new governments in some countries and there will be two new Member States - Romania and Bulgaria. In the mean time, the Commission has announced that it will start infringement procedures against the Member States who are failing to apply the existing directive properly.
FACTS & FIGURES ON WORKING TIME IN THE UK
These are some figures I've received from Stephen Hughes MEP, the Socialist Group co-ordinator (leading spokesman) on social affairs.
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Four million work more than 48 hours a week on average. That's 700,000 more than in 1992 when there was no long hours protection. It amounts to about 16% of the UK workforce, compared with 15% at the beginning of the 1990s. About 8% of the workforce say they work over 55 hours per week, 3.2% over 60 hours per week and 1% over 70 hours per week.
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Only one in three people with jobs know that the law protects them against working more than 48 hours a week and nearly two out of three people who say they work regularly more than 48 hours a week say they have not been asked whether they agree to opt out of the working time regulations.
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One in four who have signed an opt-out say they were given no choice about signing away their rights.
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Three out of five of those who work more than 48 hours say they would like to work fewer hours.
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Full-time employees in the UK work the longest hours in Europe. The average for full timers in the UK is 43.5. In France it's 38.2 and in Germany 39.9, yet both have higher productivity than the UK.
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About half (approximately 46%) of those who say they work over 48 hours are in managerial positions and are covered by the directive's exemption relating to managers.