EU and Working Time Directives
... periods during the working day and in the working week, annual leave, and protection of night workers. It covers both private and public sectors, with the exception of mobile workers in transport, workers working at sea and doctors in training (the subject of legislation agreed by the Council in May 1999). The main provisions are: · a maximum working week of 48 hours, to be calculated over a reference period not exceeding four months; · entitlement to a rest break, the details of which to be agreed by collective bargaining or determined by law; · entitlement to a minimum uninterrupted rest period of at least 11 hours in any 24-hours period; · entitlement to at least 24 consecutive hours in each seven-day period, in principle Sunday unless otherwise agreed, to be calculated over a period not exceeding 14 days; · entitlement to four weeks’ annual paid leave; · the right to free health checks for night workers; · the possibility that member states may offer particular guarantees to workers who incur risks to their own safety or health linked to night-time working · consultation period begun in April · the entitlements will be enforced by industrial tribunals Moving on, the Working Time Regulations excludes various sectors from the Directive. Nonetheless, discussions are taking place for the proper addressing of these issues. These Exceptions are: · Workers with unmeasured working time. For example managing executives and family members are only subject to the paid annual leave provisions · Workers who are necessarily busy for long periods at certain times, engaged in activities that require services such as civil protection, hospital, tourism should receive compensatory rest periods if they cannot take the statutory breaks Several basic issues arise from the Directive, relating to its scope: how is working time defined and measured, and exactly which workers are covered by the rules? The Directive defines working time as any period during which a worker is working, at his/her employer’s disposal and carrying out his/her activity or duties, although the term ‘worker’ is not defined. For the purposes of EU legislation, a worker is defined as ‘any person employed by an employer, including trainees and apprentices but excluding domestic servants’. The scope of the Directive is very broad, then, but a further feature is provision for a series of opt-outs and derogations. The Directive’s preamble states a general principle that derogations must be possible, whether via legislation or collective bargaining, with the provision that any hours worked in excess of the ceiling must be compensated with equivalent rest periods. The Directive also lists a series of possible derogations to provisions on breaks and rest periods and annual leave for certain categories (workers who travel great distances to work, security and surveillance activities, and a large range of activities involving the need for continuity of service or production such as energy provision, or activities with seasonal surges such as postal services; also in some circumstances for shift workers). In such cases, derogations may be made by law or by means of collective agreements ‘between the two sides of industry at the appropriate level’ and in accordance with national legislation and/or practice. Further, the Directive permits member states to allow opt-outs of the maximum weekly working time provision, provided that this is agreed in writing with the workers concerned, and that the employer keeps up-to-date records of such arrangements and the hours worked in practice. According to some, though the opt-outs and derogations which form a major part of the Directive actually undermine its whole basis. In addition, the Directive also allows member states the option of a three-year transitional period, during which time the annual leave provision should be a minimum of three years. Finally, it is worth noting that the provision for night workers is vague and leaves precise details to the member states. In practice, the lack of clarity may make it difficult for workers to enforce their rights in the workplace or through the courts. The evidence to date suggests that British employers, too, are not well informed about the law, so a significant advertising and information campaign, as well as enforcement on the ground (by health and safety inspectors), would be needed. Moreover, as Catherine Barnard points out, provisions on paid leave and rest breaks are entitlements, and workers may decide (or be persuaded) to forego their entitlements (Barnard 1999: 64). But the important and complex derogations may well affect the way the Regulations work in practice. These opt-outs and derogations essentially reproduce those of the Directive and fall into three broad categories. First, workers whose working time is unmeasured and who exercise a large degree of autonomy over their working time may decide to opt out of all the provisions except those on annual leave entitlement and free health checks. Second, the ‘special’ activities involving travel to and from work and a broad range activities dependent on continuous service, permanent presence or seasonal demand are exempt from the limit on night work and entitlements to rest breaks and daily and weekly rest. This set of exemptions and derogations is potentiall very important because it concerns sectors where hours are notoriously long and rest periods and paid holidays few and far between: tourism and associated industries, security and surveillance work. Third, shift workers are exempted from entitlements to daily and weekly rest periods if this is made impossible through a change of shift, or when work is split up over the day. In the latter two cases, compensatory rest time should be made available. In addition, individual workers can choose to contract out from the 48-hour maximum working week, provided that the terms of the opt-out are laid down in writing and that the employer keeps full records The European Directive on Part-Time Work In a general sense, the Directive on Part-Time Work dates from the early 1980s, when DGV was frequently at odds with national governments and employers over its protective approach to workers’ rights. The Commission pursued its interest in regulation of ‘atypical’ work following the Single European Act and the period of the Social Charter and the Social Action Programme based upon it. The Directive refers in its preamble to Article 100 relating to the common market. But its legal base rests on the Protocol and Agreement on Social Policy introduced in the Maastricht Treaty. The Commission invited the social partners (UNICE, CEEP and the ETUC) to discuss and come to an agreement on ‘atypical’ work. On 6 June 1997 they concluded a Framework Agreement on Part-Time Work, which then formed the basis of a Directive adopted on 15 December 1997. The Directive on Part-Time Work is very brief and merely adopts the Framework Agreement, which itself is short and consists of a general principle rather than detailed provisions. The general principle is that ‘In respect of employment conditions, part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part time unless different treatment is justified on objective grounds.’ Where appropriate, the principle of pro rata temporis shall apply. The method of implementation is left open: the principle of non-discrimination is to be applied according to arrangements defined by member states and/or social partners. Furthermore, as has been pointed out by Mark Jeffery, the principle is subject to a number of qualifications which limit its effectiveness. The principle covers employment condi...