by Andrea Potz and Ulrich Runggaldier
1. Subject and objective
The determination of working time between employer and employee (particularly its length and its organization) is a fundamental aspect of every employment relationship. The legal opportunities of working time regulation offered by private law represent just a small quantitative part in the dense normative setting of working time legislation. The subject matter of working time is traditionally regarded as part of occupational safety and health law (employment protection), and accordingly is dominated by public law.
The regimentation of working time is based on several interactive aspects including health policy, economic policy and also social policy. The primary purpose of working time legislation is to protect the health of workers—the limitation of working time is to prevent workers from exploitation at work. In this context the socio- political intention of promoting workers’ personal freedom and free time also needs to be mentioned. Workers must have the opportunity to play an active part in social and cultural life and to take care of their own interests. The regulation of working time also constitutes an important aspect of the question as to the compatibility of work and family life.
The effect of working time legislation is not only relevant on an individual level, but it also prevents social and economic disadvantages as a consequence of the exploitation of workers. Such damages cause high costs for national economies because the financial risks of accidents at work needs to be borne primarily by national social security systems (eg benefits disbursed through accident insurance and early retirement because of disability).
Simultaneously, working time legislation needs to be seen as an instrument of economic policy for the regulation and improvement of employment levels, especially by reducing the maximum permissible working hours. In an international context, the organization of working time law plays a fundamental role for the competitiveness of business locations. It is therefore also in the focus of the discussion on more flexible working times. On a national level, rules concerning working time have to guarantee the same framework for companies which are in competition with each other.
‘Working time’ denotes any time period, during which a worker is at the disposal of his employer and providing his professional services. ‘Rest period’, in contrast, denotes any time period which is at the disposal of the worker. The Working Time Directive (Dir 2003/88/EC) defines ‘rest period’ in the negative form as any period which is not working time. The broad scope of the definition leads to problems concerning the difference between special forms of working time and rest periods, as for example on-call duty. The qualification of working time is not only relevant for workers’ safety but also for questions of payment (eg pay for overtime).
Union law defines ‘working time’ as any period during which the worker is working at the employer’s disposal and carrying out his activity or duties. The ECJ interprets the term ‘working time’ broadly. Consequently, any period of time in which workers are present and available at the workplace, even without carrying out their duties, is regarded as working time (ECJ Case C-303/98 – SIMAP  ECR I-7963). If the workers must merely be contactable at all times when on-call, only time linked to the actual provision of services will be regarded as working time.
3. Tendencies in legal development
The introduction of legal restrictions on working time was an important step in the development of national labour law in its beginnings in the 19th century. The reason for these legislative acts was not primarily the socially motivated protection of workers but far more the political interest of the state in the health of young men who were supposed to serve in the army.
In the course of the 20th century most Member States established a complex legal system of working time rules which covered all kinds of normative levels depending on national constitutions and traditions. The normative organization of working time at the European level started rather lately. The primary target of Union law was the creation of a framework of free competition between Member States and not the harmonization of national labour and social law, areas that did not fit into the original concept of the EEC. According to this attitude the founding treaties did not contain general provisions empowering the Community to issue legal measures in these special fields. This lack of competence is the reason why several Community acts are based on former Art 48 EC (Art 45 TEU/39 EC) concerning the establishment of free movement for workers (free movement of workers) as well as on the general clause of former Art 100 EC (Art 115 TEU/94 EC).
The problematic lack of legislative competence (legislative competence of the EU) has taken more and more centre stage in ongoing political debates. In the 1980s employment protection (employment protection) noticeably became the focus of attention, which finally led to the introduction of former Art 118a(1) and (2) EC (Art 153 TEU/137 EC) by the Single European Act 1986. Thus the direct competence of the Community for the improvement of the working environment to protect workers’ health and safety was founded. Another important step was the release of the Social Policy Agreement (SPA) which extended the legislative powers of the Community into the field of labour and social law. The SPA was ultimately ratified by all Member States and could therefore be integrated into the Treaty of Amsterdam in 1997 (Art 151 TEU/ 136 EC). In this context the Community Charter of the Fundamental Social Rights of Workers 1989 and the Charter of Fundamental Rights 2001 need to be mentioned as well, although neither of them is legally binding.
Council Directive 93/104/EC concerning certain aspects of the organization of working time was the first Working Time Directive which laid down minimum health and safety requirements for the organization of working time. This directive has been amended several times. In order to clarify the applicable provisions a codification was consequently drawn up in the form of the Working Time Directive (Dir 2003/88/EC).
The development of working time rules in Union law is characterized by the successive establishment of provisions providing for the empowerment of the Community and the extension of competences in the field of workers’ protection (legislative competence of the EU). One example of this would be the amendments made to the Working Time Directive which changed its legal basis in favour of an increased involvement of the European Parliament in the legislative process.
Union law also provides rules for atypical forms of employment relationships. During the past 25 years new models of working time appeared which were not compatible with traditional models. For the purpose of guaranteeing the same minimum level of protection, the European legislator thus released several directives such as for example the Part-Time Directive (Dir 97/81/EC).
With a view to the national level, different strategies in regulating working time can be found. However, there is a trend towards the shifting of legislative competences from national legislatures to the parties of collective labour agreements, social partners and even to representative bodies of workers at company level. This way the ‘flexibilization’ of working time is to be guaranteed; additionally bargaining powers are to be strengthened.
That is why working time law proves to be a rather dynamic and developing field of law embedded in the strained relationship of economy and workers’ protection (key word flexicurity). The ECJ which had to deal with the interpretation of the term ‘working time’ in several of its cases has played an important role in the development of the law in this context (ECJ Case C-303/98 – SIMAP  ECR I-7963; ECJ Case C-151/02 – Jäger  ECR I-8389). These decisions of the ECJ led to a discussion about a fundamental amendment of the Working Time Directive. The amendment process focused on a legislative solution to the problems concerning the treatment of on-call time and the timing of compensatory rest as well as on the possibility of an opt-out.
4. Union law
The most important rules are laid down in directives, which differ according to the type of employment relationship in question as well as to their scope of application. Nevertheless, relevant aspects that stand in close relationship with the regulation of working time (eg payment) still cannot be regulated by Union law because of the restricted competences according to the treaties (Art 153(5) TEU (2007)/137(5) EC).
a) Working Time Directive 2003/88/EC
The aim of this important directive is the harmonization of working time law in its main areas for the purpose of supporting the completion of the internal market and improving the living and working conditions of workers in the European Community. For that reason the directive laid down minimum requirements which had to be transposed into national law by all Member States. Nevertheless the directive also provides for the possibility that certain provisions may be subject to derogations by Member States or the two sides of industries (Arts 17–22).
The scope of application of the Working Time Directive is based on that of Council Directive 89/391/EEC (employment protection): therefore, the directive applies to all sectors of activity, both public and private, except for special activities in the public arena (eg military forces). The directive does not apply to seafarers who fall within the scope of the Seafarers Directive (Dir 1999/63/EC). For certain types of activity the directive provides specific provisions (eg mobile workers and offshore work).
The directive is applicable to every ‘employee’ which denotes any person employed by an employer, including trainees and apprentices but excluding domestic servants. According to the jurisprudence of the ECJ the essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person in return for which he receives remuneration. Children and adolescents do not fall within the scope of the Working Time Directive but are subject to the rules of Council Directive 94/33/EC on the protection of young people at work.
The Working Time Directive refers to matters such as the minimum daily, weekly and annual periods of rest and adequate breaks, and the maximum limit on weekly working hours. Moreover the directive applies to certain aspects of night work, shift work and patterns of work (maximum limits of duration). The Working Time Directive contains definitions of ‘working time’, ‘rest period’, ‘night time’, ‘shift work’, ‘mobile worker’, ‘offshore work’ as well as ‘adequate rest’.
Every worker is entitled to a minimum daily rest period of eleven consecutive hours per 24-hour period (Art 3) and a minimum uninterrupted rest period of 35 hours (Art 5). Where the working day is longer than six hours, every worker is entitled to a rest break (Art 4), the details of which, including duration and the terms on which it is granted, shall be laid down at the national level. The average weekly working time (including overtime) is not to exceed 48 hours. The reference period for the calculation of the average weekly working time is limited to four months or 17 weeks respectively (Art 16(b)). Under certain circumstances the Member States have the option of setting longer reference periods of up to six or twelve months (Art 19).
The Working Time Directive also provides for rules concerning annual leave. According to Art 7 every worker is entitled to paid annual leave of at least four weeks. The right of paid annual leave is a fundamental principle of social law in Union law. Therefore the directive does not allow for any derogation to the detriment of workers.
b) Part-Time Directive 97/81/EC and Fixed‑Term Work Directive 1999/70/EC
The Part-Time Directive and the Fixed-Term Work Directive exhibit similarities with regard to content as well as structure. Both directives are based on framework agreements and their annexes which contain the substantive law, concluded by UNICE (now BUSINESS EUROPE), CEEP and the ETUC.
The purpose of the Part-Time Directive is to provide for the improvement of the quality of part-time work on the one hand and, on the other hand, to contribute to the flexible organization of working time in a manner which takes into account the needs of workers and employers. The framework agreement applies to part-time workers who have an employment contract or employment relationship as defined by the laws, collective labour agreements or practices in force in each Member State. The term ‘part-time worker’ refers to an employee whose normal hours of work, calculated on a weekly basis (or on average based on a period of employment of up to one year), are less than the normal hours of work of a comparable full-time worker.
The Part-Time Directive establishes a general framework for the elimination of discrimination against part-time workers (discrimination (employment law)) and sets out the principle of pro rata temporis. Further, it provides rules to assist the development of opportunities for part-time work on a basis acceptable to employers and workers and to improve the quality of part-time work. Therefore, both Member States and social partners are expected to identify and review obstacles of a legal or administrative nature which may limit opportunities for part-time work and, where appropriate, to eliminate them, which is to facilitate the development of part-time work on a voluntary basis.
The Fixed-Term Work Directive is another tool of Union law, which aims to regulate atypical forms of employment relationships. The term ‘fixed-term worker’ denotes a person with an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as the passing of a specific point in time, the completion of a specific task, or the occurrence of a specific event. The term ‘employment contract’ is not defined in the directive but depends on national legal systems and their definitions.
The purpose of the Fixed-Term Work Directive is to improve the quality of fixed-term work and to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships. Therefore the directive provides that fixed-term workers are not to be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless a different form of treatment is justified on objective grounds (principle of non-discrimination) (discrimination (employment law)). According to the Part-Time Directive the Fixed-Term Work Directive also contains the principle of pro rata temporis. Furthermore, Member States are obliged to introduce one or more of the following measures where there are no equivalent legal measures in national law to prevent abuse of successive fixed-term employment contracts. These measures may be the establishment of objective reasons justifying the renewal of such contracts or relationships, the maximum total duration of successive fixed-term employment contracts or relationships, or the number of renewals of such contracts or relationships. The directive also provides for participation rights in employee representation bodies in the form of information and consultation rights with regard to fixed-term employment contracts within the undertaking or establishment in question.
5. Jurisdiction and amendments
The ECJ decisions concerning on-call duty have started a broad political discussion on working time within the EU. The key issues of the amendment of the Working Time Directive are the introduction of new definitions of working time to be added to existing definitions, the new opt-out-rule and different reference periods. The first proposal of the Commission was highly controversial and did not obtain a majority in the first reading in the European Parliament. One reason for its disapproval was the fear that the amended directive would lead to a reduction of workers’ protection levels. The amended Commission’s proposal was accepted by the Council in June 2008, but amended in the second reading in the European Parliament. In March 2009 the amendments made by the European Parliament were rejected by the Council which finalized the amendment procedure.
a) On-call duty
In several cases the ECJ (Joined Cases C-397/01 and C-403/01 – Pfeiffer and others.  ECR I-8835) was faced with the question as to whether inactive on-call duty should be considered as working time for the purpose of the Working Time Directive. The ECJ came to the conclusion that time spent on-call at the work place should in its entirety be regarded as working time and was to be taken into account with regard to the maximum (weekly) working time. Deviating from what had been decided by the ECJ, the Commission’s first proposal draws a line between active and inactive on-call time stating that the inactive part of on-call time is not to be considered as working time. This distinction was not accepted by the European Parliament.
The directive establishes the conditions to be met by the Member States which exercise their right not to apply Art 6 (maximum weekly working time). If Art 6 is not to apply, this must be authorized by a collective agreement or an agreement between the social partners at the appropriate level. This condition is not applicable when a collective agreement is not in force and there is no collective representation of the workers within the undertaking or the business that is empowered, in accordance with national law and/or practice, to conclude a collective agreement or an agreement between the two sides of industry on the issue. In such cases, the individual worker’s consent, in accordance with the established conditions, is sufficient.
The possibility of an opt-out is restricted by limiting the period of validity (maximum of one year) and by the formal requirement of a worker’s agreement given in writing. Furthermore, a worker’s agreement cannot be given at the beginning of the employment relationship or during any probation period.
c) Reference periods
The standard reference period for the average weekly period according to the current state of the law is four months, but this period could be extended to up to six or twelve months by the partners of a collective labour agreement. However, the amended proposal would provide for extension of this period of up to one year by the Member States even outside of a collective labour agreement, subject to the consultation of concerned social partners in this matter.
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