EU Working Time Directive – an evergreen on the EU agenda?
The shelves have been tidied, the goods have been ordered, the book-keeping is done. Now the shop assistant in an ordinary shop is waiting for the next customer to walk in. Is this waiting time part of working time?
Most people in Europe would certainly reply at once: “Yes” or “Of course” and add: “What an odd question!” before going on to accuse the questioner of “nit-picking” or “splitting hairs”.
What counts as ‘working time’?
The definition of ‘working time’ has always been one of the controversial points in the review of the Working Time Directive. The current definition – “any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice” – has proven problematic, especially when dealing with the emergency services such as nurses and doctors on call in a hospital emergency unit. The classification of so-called ‘inactive’ time was a point of controversy. In the case of an emergency unit, this would be the time spent by the doctor waiting for the next emergency patients to be brought in. To date, the European Court of Justice has ruled (SIMAP / Jaeger ) that on-call duty is to be regarded as working time. The employee is at the employer’s disposal at the workplace during that time, and on-call duty is part and parcel of the normal tasks undertaken by a doctor in performing his or her duties.
Clearly, this notion puts the employer at a disadvantage. Consistent application of the case law is expensive (a larger pool of personnel is required). Nevertheless, the employee’s interest in regarding on-call duty as working time needs to be taken into account: after all, he considers himself available for the entire period of service at the workplace.
During the course of the revision of the Working Time Directive, which ended in failure in 2009 after five years of negotiations, the Commission, assisted by the Council, therefore tried to ‘correct’ the ECJ’s case law and to exclude the inactive period of on-call duty from working time. But the Parliament did not agree to this. During the current revision of the Working Time Directive, employers have according to the German Trade Union Federation (DGB) tried to amend the concept of ‘working time’ with another category “inactive time”. The proposed definition apparently would have had a formulation that would have given room for an extensive interpretation. The application of such an extensive interpretation could – according to the (DGB) – lead to the result to the point that potentially all waiting periods could be excluded from the working time. Absurd! How would one explain to the shop assistant that the time she spends waiting in the shop for the next customer to arrive is not working time but in fact is leisure time (!)? The consequences of such a further extended concept are obvious: a de facto increase in the number of hours spent at the workplace, hence a drop in salary, not to mention the negative impact on the health of the employees – while health is one of the legal rights which the Working Time Directive is supposed to be protecting. Such an approach surely does not seem to be political enforceable.
The end of the ‘opt-out’?
The continued validity of the ‘opt-out’ has also been a traditional bone of contention. This was one of the reasons why the revision of the Working Time Directive failed in 2009. The opt-out allows a Member State not to apply the rules on a maximum working week of 48 hours per week (including overtime) for a reference period of four months. At that time, the Council had been in favour of retaining the opt-out subject to ‘strict conditions’. By contrast, the Parliament had insisted on phasing out the opt-out clause after a transitional period. The EU social partners (ETUC, UEAPME , BUSINESSEUROPE, CEEP) have apparently been unable to reach agreement on this point.
Social partnership agreements failed – now what?
On 14 December 2012, after several months of negotiations behind closed doors, the EU social partners issued press releases concerning the current state-of-play. While the European Trade Union Confederation (ETUC) in its statement assessed the employers’ final offer as inadequate and therefore deemed continuation of negotiations to be impossible, the employers complained in a joint statement that the ETUC had not yet replied to its offer. The Commission had agreed to an extension of the negotiating period beyond the nine-month period until 31 December 2012. The ball is now in the Commission’s court. Indeed, it may set the EU legislative process in motion with a proposal for revision of the Directive.
Balance between living and working
Revision of this Directive is still encumbered with other outstanding issues, such as the question of finding a balance between private and family life and work. This could be supported through synchronisation of the weekly rest period. Although the current Directive provides for a minimum uninterrupted rest period of 24 hours in every seven-day period plus the daily rest period of eleven hours, the element of synchronisation is not taken into consideration at all. However, this is vital to maintaining a balance between living and working. What time is there for family life if the father’s day off is on Tuesdays and the mother’s on Wednesdays? In the absence of any synchronisation whatsoever, what time is there for neighbours and friends, or for going to the sports club? How can one commit to a church choir or to voluntary work that makes such an important contribution to our society? Are not all these activities important for the psychological well-being of workers, and therefore part of the health that should be protected by the Directive?
It remains to be seen whether the Commission will manage, perhaps even before the end of its current mandate, to present a draft with enough force to cut right through the ‘Gordian knot’ of the current negotiations.
Translated from the original text in German