Report on the practical implementation of Directive 2003/88/EC concerning certain aspects of the organization of working time

1 TRANSPOSITION

The Working Time Directive has not been transposed in a satisfactory way in member states. Most obvious problems have occurred concerning on-call time and the derogation of professionals & managers.

The problems concerning on-call have lead up to a situation where 12 member states are using opt-out for on-call. In addition 5 member states are using general opt-out.

Working Time Directive is a minimum directive which should guarantee at least some level of work force protection in European Union. The usage of opt-out has become an instrument for race to the bottom and is by its current form jeopardizing one of EU´s fundamental principles; equal competition (fair play) in internal market.

The derogation of P&MS (Professional & Managerial Staff; article 17.1) has lead up to a “structural opt-out”. This has happened simply because the amount of P&MS is increasing in EU countries. According to Eurostat the Percentage of P&MS among total employees has risen from 19,3 % (2007) to 26,26 % (2012). In many member states the change has been even more intense. People have also been “promoted” as P&MS just aiming to avoid the coverage of working time legislation.

The current directive is very unclear in many subjects and therefore ECJ has been quite busy interpreting it. It doesn´t offer enough solid ground for a common European legal framework for working time which has also caused problems of implementation. However the problems are not insuperably difficult and could be solved by elaborating the Directive. We ask The European Commission to prepare a new proposal for a directive renovation very urgently.

2 SOCIAL PARTNERSHIP

The consulting of social partners depends very much of respective country; how developed is the collective bargaining system and culture. For instance in the Nordic countries where collective bargaining system is strong and has a long history, social partners have been consulted on the whole sufficiently.

3 MONITORING OF IMPLEMENTATION

The enforcement and monitoring of the Directive at national level is generally unsatisfactory. This is because of the opt-out. If majority of member states have either general or partial opt-out of the Directive, we can really ask what kind of legislation is this; legally binding at least somehow or just a political declaration of good intentions? Obviously there is no need to deregulate any more.

On the contrary; it is very clear that the opt-out undermines the whole Directive. Therefore it should be ended as soon as possible.

4 EVALUATION 

Eurocadres participated actively in the negotiations on the revision of the Working Time Directive between 2011 and 2012 and prepared proposals.

There are clear evidence that long working hours have negative effect on health, safety and work-life balance of the worker. Generally it has also been shown that decreased yearly working hours have positive impact on productivity (Deloitte, 2010). This gives us two conclusions

There is a clear need for European level working time regulation which guarantees at least a minimum protection for workers.

There is also a need for certain flexibility. This could be arranged by collective bargaining or by agreements concluded between the two sides of industry.

Concerning SMEs we share the opinion that their administrative/regulatory burden in general could be reduced as a part of REFIT. However this should not lead to a situation where employees working in SMEs will have worse working conditions and/or weaker protection than those who work in bigger companies.

We should also remember that if we want flexibility which really works it needs also security. This flexicurity could best be achieved by agreements and legislation based on a genuine social dialogue.

5 OUTLOOK

The number one priority for Eurocadres in this subject area is to end the groundless derogation of Professional & Managerial Staff (autonomous workers) from the scope of the Directive. Only 19 % of managers and only 7 % of professionals can freely determine their own working hours. Therefore instead of the current large and general derogation of P&MS the derogation should only concern employees who

• have the right to determine their own working time and whose working time is not measured; and
• have a direct and final responsibility for the daily management of a corporate undertaking and who are authorized to commit the company and take corporate decisions; and
• are chief executive officers (or persons in comparable positions) and senior managers directly subordinated to them and persons who are directly appointed by a board of directors.
• Eurocadres would like also to pay attention to a problem which has not been discussed corncerning the reform process of working time directive and that is bogus entrepreneurship. This was discussed when dirvers´working time was on the table but not during this process. There exist similar problems in all sectors and we urge the Commission to take this into consideration when undertaking the new Directive.