Blog AnalysisSocial Policy

Working time: the time of a failure

(B2) Five years of negotiations for a new directive on working time to reach square one. So failure or success. In my opinion, it is a failure

It is a failure of Europe for not having been able to give workers a little consideration. Because it is an indisputable fact: the preservation of the health and safety of workers, which is the primary objective of this directive, was not really taken into account by most of the negotiators of this reform. But this is not a failure for the European Parliament.

The Anti-Social Commission

Governments (helped by the Barroso Commission) which refused to set a deadline for opt-out – derogation from the weekly limit on working time – which allows working up to 78 hours per week – cannot argue the objective of the directive. Likewise, the Commission, by staunchly defending the position of the Member States not to count the (passive) hours of on-call duty at work, has slightly forgotten its role as guardian of the Treaties to degrade itself into the role of kind secretary of the four wills of the States members. Because the EC Court of Justice has reiterated its position on almost ten occasions: all on-call hours must be counted as working time. By overlooking the permanent position of judges, the Commission adopted a very political rather than legal position.

A success for the European Parliament

He was able to impose his will on most governments and the Commission. This was thanks to a large majority which brought together beyond the left, the democrats and the right-wing reformers. Which is quite exceptional on a social subject. We can say that the upcoming electoral campaign was a good spur to this radical position. But the European Parliament was right to stick to two principles: 1) all on-call hours must be counted as working time; 2) it will be necessary, at some point, to abolish or at least regulate the opt-out much more strictly. Two principles which correspond not only to the interests of employees, but to the initial European objective. The designers of the opt-out, at the time of the negotiation of the first directive on working time, in the 1990s, had clearly conceived this exemption as of temporary duration, necessary to rally the United Kingdom to European legislation and give it time to adapt its legislation).

And now what happens?

We remain with the Working Time Directive of 1993 – revised and codified in 2003 – as interpreted by the EC Court of Justice. That is to say: 1) all on-call hours must be counted as working time; 2) the opt-out is retained. Is it really as dangerous as the European Commission claims, believing that States which wish to do so will be able to use the opt-out to circumvent the case law of the EC Court of Justice, and that this will create precariousness for workers?

I don't think so for several reasons, legal and political.

1° The opt-out, in proper legal interpretation, should be, like any derogation, strictly interpreted and its use limited, especially since the objective of the directive remains health and safety. The Court could thus lead to strictly limiting this opt-out. And the Commission could be led to drag states that abuse the opt-out before the EC Court of Justice.

2° On call time, the Commission will be obliged to bring before the Court all the States which are in breach (basically almost all the States). This will lead the Court to redefine the case law. And national courts will be able to apply the Court's case law on on-call time without firing a shot. This will change the balance of power between employers (often public) and workers.

(Nicolas Gros-Verheyde)

Article first published on the 'Social Europe' blog

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).