Introduction

“ Whereas this Directive is a practical contribution towards creating the social dimension of the internal market”. [1]

Civilization in the workplace has started with the regulation of maximum working hours. The very first international Convention on working conditions, adopted at the coming into being of the International Labour Organisation in 1919, established the 8-hour working day, and the 48-hour working week. [2] The Working Time Directive 1993 has been a very important achievement on the European level, laying down minimum health and safety requirements for the organization of working time. It applies to minimum periods of daily rest, weekly rest, annual leave, breaks, maximum weekly working time, nightwork, shiftwork and patterns of work. Its minimum requirements bind all Member States of the European Union, the existing 15, and the new 10. The ETUC is of the opinion that the Directive continues to be a major contribution to, and safeguard of, the social dimension of the internal market, which will see an enormous expansion eastwards after the first of May 2004.

However, the Directive knows some very far-reaching derogations, that by their very existence question the principles on which the Directive is built, because they allow for almost unlimited extension of working hours. The first provision to be re-examined concerns the possibility to extend the reference-period for the establishment of the maximum limit of ‘average’ 48 hours per week up to one year in specific cases on the basis of collective bargaining (Article 17,4). The other provision to be re-examined concerns the possibility for Member States not to apply the maximum limit of ‘average’ 48 hours at all, on the basis of voluntary agreements with individual workers, the so-called ‘opt-out’ of Article 18, 1 (b) (i).

These derogations have to be re-examined, according to the Directive, 7 years after the implementation date, which was 23 November 1996. It is now 2004, more than 10 years after its adoption. The ETUC expects some courageous steps to be taken by the European Commission, and the other European Institutions.

Steps, that are within the logic of the legal framework on which the Directive is based, notably the obligation to limit maximum working hours of all workers in the European Union.

However, according to the ETUC, the recent Communication of the Commission on the re-examination of the Directive is very disappointing for several reasons, listed below, and explained more in detail in the attached explanatory memorandum.

Before entering the debate on the content, however, the ETUC wants to express its views on the way the Commission is dealing with the consultation of the Social Partners at the European level on this issue.

On consultation

“ The Commission shall have the task of promoting the consultation of management and labour at Community level (...). To this end, before submitting proposals in the social policy field, the Commission shall consult management and labour on the possible direction of Community action.(...)” [3]

The ETUC is of the opinion, that the Commission is following a faulty and confusing path in the consultation of the Social Partners:  while in the header of the Communication the addressees are mentioned to be the Council, the Parliament, the Economic and Social Committee, and the Committee of the Regions, only in some language versions also the social partners are mentioned (notably: not in the FR, EN and DE web-versions; but they are for instance in the NL, DA, SV, ES and P web-versions); in explicit terms, only in the very final paragraph of the Communication it says that the Communication is also aimed at ‘the social partners at Community level’.  In this same final paragraph, the Communication states ‘as regards the European Social Partners, this Communication constitutes the consultation provided for in Article 138 (2) of the Treaty’.  At the same time, the Commission seeks to involve interested organisations at national level by inviting them to comment via the Internet. These organisations necessarily must be others than the relevant social partners (as the European social partners are representing their national affiliates).  The Commission furthermore announces that it will conduct a detailed examination of the various contributions received, and following this examination will draw the necessary conclusions.

The ETUC is of the opinion that this procedure is not in accordance with the Treaty, because it does not recognize the special and unique position of the Social Partners under Article 138 of the Treaty. This special and unique position is provided for, to promote the social dialogue on the European level, to promote the possibility of management and labour to influence the direction of proposals in the social policy field in an early stage, and to allow management and labour to contribute to the elaboration of social policies with their own specific instruments (collective bargaining) as well as with the specific procedure of Article 138 par. 3.

The ETUC welcomes in general the use of the Internet to provide for better and more transparent information of citizens on European policies. However, the Commission must avoid to confuse the provision of information and the gathering of relevant material on a current policy issue with the official and formal consultation procedures, which have an explicit legal base in the European Treaty, and are an important asset in the development of the European model. Therefore, the ETUC demands that the Commission, as guardian of the Treaties, clarifies its position on the current consultation process, and explicitly takes measures to safeguard the specific and unique position of the Social Partners on the European level.

Summary of ETUC’s views with regard to the Communication

1) Legal framework

The Working Time Directive is based on the principles, established in several important ILO-Conventions and EC and EU-Treaties. The ETUC is of the opinion, that the Commission does not give due consideration in its Communication to this legal framework, and its implications for the current re-examination process.

2) The need for revision

The Commission is under the legal obligation, according to the Directive, to ‘re-examine the provisions’ of article 17,4 and article 18, 1(b)(i) ‘and decide what action to take’. In this respect, the ETUC is very disappointed that the Commission has come up with such a poorly documented text, and only presents a vague list of options to the addressees of the Communication, while in the list of ‘main issues’ to be addressed even the major point of the continuation or deletion of the individual opt-out is totally absent.

3) Aims and criteria for revision

In the final paragraphs of the Communication, the Commission proposes four criteria that should be met ‘by whatever solution is adopted’, firstly to give workers a high level of health and safety, secondly to give firms and Member States more flexibility in the way they manage working time, thirdly to make it easier to reconcile work and family life, and fourthly to avoid imposing unreasonable constraints on firms, especially small and medium sized businesses. According to the Commission, the five main issues that need to be addressed are: reference periods, the concept of working time, the conditions of application of the opt-out, improving the reconciliation of work and family life, and ‘whether an interrelated approach to these issues would allow for a balanced solution capable of meeting the criteria set above’. However, it is in the view of the ETUC a legal error to seek with regard to a possible revision a balanced solution capable of meeting all these criteria, as the Working Time Directive is based on the legal basis of Article 118a (protection of health and safety). Using other criteria than the protection of health and safety puts the legality of any revision of the Working time Directive at risk, and should be avoided. Of course, this does not mean that other important issues that have a political, economic or social link with the organisation of working time cannot not be put on the agenda of the European Institutions, or could not be taken on board in discussions or negotiations by the Social Partners on the European level. These issues however will need to be carefully assessed, also in terms of the legal bases to act upon. In that respect, the issue of ‘reconciliation of work and family life’ may be a special case, because of its direct and indirect links with the issue of health and safety of all workers with family-responsibilities.

4) Reference periods

The existing structure of the Directive, in which the average maximum working week can be regulated in terms of reference periods up to one year is quite complicated, to allow for a certain measure of flexibility while at the same time trying to provide for compensatory mechanisms and safeguards by way of collective bargaining. The ETUC is therefore very disappointed, that the Commission has not been able to come up with any thorough assessment of the realities in the various Member States and in various sectors. The Communication does not make reference to any research on the issue, nor on any other relevant material. This means, in the view of the ETUC, that it is impossible to judge - on the basis of the Communication - the actual use of the derogation, or the needs of businesses and workers, or the risks and dangers with regard to annualised working hours.

Where annualized hours at this moment exist, this is on the basis of collective bargaining. The Directive, in the view of the ETUC, should continue to ensure that, wherever long reference periods are considered, these are provided for in the context of procedural guarantees and the countervailing power of collective bargaining, which ensures that compensatory mechanisms are put in place. The ETUC and its affiliates therefore strongly oppose any development in the direction of dropping these safeguards with regard to the extension of reference periods.

5) The individual ‘opt-out’

The ETUC has always been strongly opposed to the option for Member States to opt out of the already very flexible framework of protective measures as provided for in the Working time Directive. The option for Member States not to apply article 6 (average 48 hours) at all, when the individual worker agrees, allows for the effect of unlimited extension of working hours, only balanced by the vague obligation ‘to respect the general principles of the safety and health of workers’. In our view, the individual opt-out as such is in strong contradiction to the aims and provisions of the Working time Directive itself, and the basic principles regarding the protection of health and safety! Several research reports confirm that in the UK the opt-out has been widely used, mainly as a precautionary measure by employers. The opt-out provides a comfort zone for employers who have staff regularly working additional working hours, lest that practice should stray into becoming sustained long hours above the legal weekly working time limits. The ETUC finds it unacceptable, that the Commission - while being aware already for several years of the deficiencies in the way the UK has implemented the legal conditions for the opt-out, including open violations - has abstained so far from any actions to enforce these (even very minimal) conditions. It is even more incomprehensible that the Commission, on the basis of this bad practice example, in its Communication still seems to think that workers can be adequately protected from abuses in the use of the opt-out, only by improving the ‘conditions of application’ of the opt-out. The ETUC therefore welcomes very strongly the recent report on the revision of the Working time Directive, as adopted by a great majority of the European Parliament, in which the Parliament “calls for the revision, with a view to the phasing-out, as soon as possible, of the individual opt-out”, and in the meantime calls on the Commission “to identify practical ways of tackling potential or actual abuses of the opt-out provision, including seeking views on how to best strengthen the voluntary nature of the opt-out.” [4]

6) On-call work and the definition of working time

With regard to the implementation of the Simap- and Jaeger cases, the ETUC is of the opinion that in this stage it is impossible to judge the situation in the various Member States and sectors concerned, as the Communication of the Commission is lacking any detailed information. In the view of the ETUC, the Commission needs to come up as soon as possible with an impact assessment of the ECJ-cases, which fully takes into account the experiences and views of the social partners in the relevant sectors. Also, the Commission should urge the Member States to refrain from introducing or extending the individual opt out as a solution for their short term problems in the health sector, offering them instead guidance on how to implement the ECJ-judgements, and providing them with a perspective of a long term and sustainable response that fully respects the basic principles of the Directive. The ETUC does not accept a simplistic revision of the definition of working time, with a view to exclude on-call working time from the definition, as a viable solution. Finally, the Commission should promote social dialogue as a major means to provide for these long term and sustainable solutions, as well on the national, on the sectoral as on the intersectoral level.

7) Managing executives and other excluded groups

The Directive allows for a derogation from the principles of the Directive in the case of managing executives and other persons with autonomous decision-taking powers, on the condition that there is due regard for the general principles of the protection of the health and safety of the workers concerned. This derogation is interpreted and applied very widely, which is a matter of growing concern. In the view of the ETUC, it is not acceptable that these developments leave increasing groups of workers without any protection against health and safety hazards of long working hours. The possibility to derogate should therefore be tightened and defined more accurately. The Commission should also evaluate the way in which this derogation is currently applied, and especially ask from Member States to report on how they have implemented and monitored the obligation to give due regard to the health and safety protection of the excluded groups of workers. The Commission should also take a more proactive approach, and invite the social partners to comment on possible ways to address the specific aspects of managing working time for higher and managerial staff, with a view to come up with proposals that provide for adequate protection, while offering flexibility to enterprises and workers concerned.

Article 17 also allows for derogation with regard to ‘family workers’. The ETUC is of the opinion that this term is very vague, and potentially can be used to cover a wide range of (probably mostly female) workers. It is therefore important that the Commission evaluates the use of this derogation by Member States, to see which groups are excluded, and how these excluded groups are monitored with regard to possible health and safety risks. At the same time, the need to continue the derogation in its current form should be assessed, and if derogation is still deemed necessary a more precise and limited definition should be considered.

8) Flexibility for enterprises compatible with flexibility for workers?

In the view of the ETUC, the Commission confuses several issues in its Communication, and thereby creates the false illusion of automatic joint interests of employers and workers with regard to flexibility. Whereas the existing Directive gives ample room to provide for the flexibility needs of enterprises, the Directive lacks sufficient support and safeguards for the flexibility needs of workers, especially in regard of the increasing demands pressing upon all workers, men and women, to take up and share care-responsibilities for children and elderly parents. The issue of reconciliation of work and family life is one of the major challenges to tackle on the national as well as on the European level, for many different and important reasons, of which the protection of health and safety of workers is only one. It is therefore very disappointing that the Communication of the Commission does not offer more than one page of phraseology on this issue. Reference is made to a recent survey about the variation of measures taken in EU and EFTA-countries, which indeed show that most examples are about forms of reduction and adaptation of working hours. But no indication is given on how the Commission could envisage the revision of the Working time Directive to be used to improve the compatibility of work and family life, neither in legal terms, nor in terms of content. Moreover, where the Commission at the same time wants to offer more flexibility to enterprises and Member States, and does not propose to put an end to the individual opt-out of the 48-hour working week, there does not seem to be the genuine will on the side of the Commission to seriously pursue better conditions for the reconciliation of work and family life for workers in Europe.

Conclusions

The ETUC envisages a modern working time policy on the national and the European level that combines flexibility for employers with real choice for workers. The choice to have healthy working hours; sufficient hours of work for a decent wage to earn a living; a maximum amount of hours per day and/or week that allows workers, male and female, to also take care of one’s family or community, and to share this care with one’s partner; flexibility in working hours to be able to adapt working life to obligations and responsibilities outside the workplace.

The ETUC calls on the Commission to come up with proposals that challenge outmoded forms of work organisation. We look forward to proposals that stimulate modern and sustainable solutions for businesses and workers.

This means that the Commission should make a clear proposal to the Council to:

 delete the individual opt-out of article 18, par. 1(b) (i) as soon as possible;

 maintain the general approach that flexibility in working time arrangements, and derogations of the general principles of the Directive, must be based on collective bargaining, in particular with regard to annualised working hours as foreseen in article 17 par. 4, to safeguard that appropriate working time patterns and compensatory mechanisms can be put in place that protect the health and safety of workers;

 revise the Directive in such a way, that the reference period applied to a worker can never be longer than the duration of his/her employment contract;

 re-examine the derogation of article 17, par. 1(a) with regard to ‘managing executives and other persons with autonomous decision-taking powers’, with a view to provide for a more precise definition, which respects the need to protect the health and safety of all workers;

 re-examine the need for other existing derogations, such as the derogation of article 17, par. 1(b) with regard to ‘family workers’;

 provide for better and more effective enforcement of the Directive, with a special emphasis on monitoring the enforcement of the conditions for application of derogations, such as art. 17, 1 and 18, 1 as long as these derogations still exist; and to take proper action towards Member States, wherever and whenever the Directive is not properly implemented;

 provide for adequate and balanced solutions with regard to on-call working time, in so far as a proper assessment of the problems arising from the implementation of the EC-judgements leads to the need for adaptation of working time regulations. These solutions could allow for a certain flexibility in applying working time regulations for a certain period of time, when compensatory mechanisms are put in place on the basis of collective bargaining. This also means, that the ETUC is strongly opposed to a more general revision of the definition of working time in the Directive itself.

 provide for a better and more elaborate framework for discussing the introduction of provisions that enhance the flexibility and choice for workers to adapt the organisation of working time to their needs, especially with regard to the reconciliation of work and family life.

ETUC/EC162/CP-08/03/200424/03/2004

ANNEX

Directive 93/104/ EC concerning certain aspects of the organization of working time(Working Time Directive)

ETUC’s position on the Communication from the Commission of 30-12-2003 concerning the re-examination of this Directive

EXPLANATORY MEMORANDUM

1) Legal framework

“The completion of the internal market must lead to an improvement in the living and working conditions of workers in the European Community. This process must result from an approximation of these conditions while the improvement is maintained, as regards in particular the duration and organization of working time.” [5]

Limitation and reduction of working time is one of the fundamental issues, which are at the heart of the trade union movement from its very beginning, and continue to be at the centre of our concern until today.

The Working Time Directive refers to the ‘principles of the International Labour Organization with regard to the organization of working time, including those relating to night work’, which principles have been developed from the very first Convention of the ILO in 1919 onwards, establishing in 1919 the eight hour working day and the 48-hour working week in industry, and since then in most other areas of economic activity.

These issues have also been enshrined as fundamental principles and goals in all the treaties and charters of the Council of Europe and the European Union: The European Social Charter of 1961, as updated in 1996, speaks in article 2 about the obligation of Member States “to provide for reasonable daily and weekly working hours, the working week to be progressively reduced to the extent that the increase of productivity and other relevant factors permit”. The Community Charter of the fundamental social rights of workers of 1989 states in article 7: “the completion of the internal market must lead to an improvement in the living and working conditions of workers in the European Community. This process must result from an approximation of these conditions while the improvement is maintained, as regards in particular the duration and organization of working time (...)”; and in article 8 about the right of every worker to a weekly rest period and to annual paid leave, the duration of which must be progressively harmonized. The Treaty of Nice (2000) explicitly refers back, in article 136, to these rights and obligations, while the Charter of fundamental rights of the EU as adopted at the same time in Nice in article 31 stipulates that “every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave”.

The Working time Directive 1993 refers to the Community Charter and the aims of further harmonization and approximation while improvements shall be maintained, but in addition stipulates, “the improvement of worker’s safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations”.

Other important principles, laid down in the preamble, are the need to ensure the health and safety of workers by placing a maximum limit on weekly working hours, a specific limit to night work because of its potential detrimental effects, and the general principle to adapt the work to the worker.

The Directive allows for flexibility in the application of certain provisions, “whilst ensuring compliance with the principles of protecting the safety and health of the worker”, and prescribes, as a general rule, in the event of derogation, that the workers concerned must be given equivalent compensatory rest periods (see last paragraphs of the Preamble)”.

The ETUC is of the opinion, that the Commission does not give due consideration in its Communication to this legal framework, and its implications for the current re-examination process.

2) The need for revision

“ Before the expiry of a period of seven years from 23 November 1996, the Council shall, on the basis of a Commission proposal accompanied by an appraisal report, re-examine the provisions of this paragraph and decide what action to take.” [6] The Directive knows two far reaching derogations, that, because of their far reaching nature, are subject to a special re-examination procedure (7 years after implementation): Article 17 par.4, which, in short, allows Member States to extend the reference period for counting the average working week from 6 up to 12 months on the basis of collective agreements, and article 18,1 (b) (i) that provides Member States with the option not to apply article 6 on the maximum average working week of 48 hours, on the basis of voluntary agreement with the worker (the so called individual opt-out).

The Communication of the Commission, issued on 30 December 2003, in its introduction, says to have three aims:  to evaluate the application of the two provisions subject to review;  to analyse the impact of recent case law of the ECJ concerning the definition of working time and the qualification of time on call, thereby referring to the SIMAP and Jaeger cases;  to consult the European Parliament, the Council, the European Economic and Social Committee, the Committee of the regions and the social partners on a possible revision of the text.

At the end of the Communication, the Commission lays down four criteria that should be met by whatever solution is adopted, being: • to give workers a high level of health and safety protection in respect of working time • to give firms and Member States more flexibility in the way they manage working time • to make it easier to reconcile work and family life • to avoid imposing unreasonable constraints on firms, particularly small and medium sized businesses.

The Commission asks from the addressees of this Communication to express their opinion on the need to revise the current text or introduce other initiatives, not necessarily legislative, and points at five main issues to be addressed: 1) reference periods 2) the Court of Justice’s interpretation of the concept of working time 3) the conditions of application of article 18, 1 (b) (i) (opt out) 4) measures aiming at improving the reconciliation between work and family life 5) whether an interrelated approach to these issues would allow for a balanced solution capable of meeting the criteria set above.

According to part three of the Communication, it ‘seeks to launch a wide-ranging consultation process capable of resulting in a possible amendment of the Directive’. As regards the European social partners, the Communication ‘constitutes the consultation provided for in Article 138 (2) of the Treaty (first phase of the consultation process).’ In order ‘ to involve interested organisations at national level’, the Communication will be made available on the Internet. All interested organisations can send their comments and suggestions by e-mail to the Commission, who will conduct a detailed examination of the contributions received, and following this examination will draw the necessary conclusions.

It should be noted, that the Directive is subject to general evaluation every five years, on the basis of a report on the application to be made by the Commission. The Communication of the Commission of 30 December 2003 has therefore a limited scope. This means also, that there is no reason or ground to discuss or review in this stage the basic principles and provisions of the Directive.

However, there is the legal obligation, according to the Directive, to ‘re-examine the provisions’ of article 17,4 and article 18, 1(b)(i) ‘and decide what action to take’. In this respect, the ETUC is very disappointed that the Commission has come up with such a poorly documented text, and only presents a vague list of options to the addressees of the Communication, while in the list of ‘main issues’ to be addressed even the major point of the continuation or deletion of the individual opt-out is totally absent.

3) Aims and criteria for revision

“ Whereas article 118a of the Treaty provides that the Council shall adopt, by means of directives, minimum requirements for encouraging improvements, especially in the working environment, to ensure a better level of protection of the safety and health of workers.” [7]

The Directive should be considered as an important part of the social acquis of the European Union. According to the relevant texts of the Treaty and the Directive itself, the Directive is a first step in the further harmonization and approximation of the working conditions of workers as regards in particular the duration and organization of working time. This would mean, in legal terms, that further steps with regard to the issue of working time regulation, need to be taken within the framework of ‘progressive harmonization, while maintaining the improvements made’. This would also mean, in the view of the ETUC, that the Commission cannot lawfully propose that solutions with regard to the issue of working time should meet the criterion, that these would need to give more flexibility to firms and Member States in the way they manage working time.

There are more reasons to put some doubts on the criteria as proposed by the Commission. The legal basis of the Directive was Article 118a (now article 137): ‘to ensure a better level of protection of the safety and health of workers’. This means, in the view of the ETUC, that the Commission cannot lawfully seek to balance health and safety protection against other criteria, such as mentioned in the final paragraphs of the Communication. Health and safety protection is the sole valid criterion, and only factors bearing on health and safety are relevant to the revision of the Directive. The Directive even states that ‘the improvement of workers’ safety and health at work is an objective, which should not be subordinated to purely economic considerations’. The only ‘condition’ that is explicitly mentioned in Article 118a (now 137) is, that the Directive ‘should avoid imposing administrative, financial and legal constraints that would hold back the creation and development of small and medium enterprises.’ It should be noted, that the Commission in its Communication speaks about the need ‘to avoid constraints on firms, particularly small and medium sized enterprises’, which is a much wider ranging text.

Therefore, it is in the view of the ETUC a legal error to seek with regard to a possible revision ‘a balanced solution capable of meeting all these criteria’. Using other criteria than the protection of health and safety puts the legality of any revision of the Working time Directive at risk, and should be avoided.

Of course, this does not mean that other important issues that have a political, economic or social link with the organisation of working time cannot not be put on the agenda of the European Institutions, or could not be taken on board in discussions or negotiations by the Social Partners on the European level. These issues however will need to be carefully assessed, also in terms of the legal bases to act upon.

A special case is the issue of ‘reconciliation of work and family life’. Also this issue - however important also according to the ETUC (see also par. 10 below) - can only be a criterion that must be met with regard to the revision of the Directive, in so far as the issue has a bearing on the health and safety of the worker concerned. This may be the case in so far as the health and/or social and psychological well-being of the worker is negatively influenced by continuous problems in coping with the combination of work and family obligations (see wide definition of ECJ of ‘health and safety’, to include social and psychological aspects, Case C-84/94, UK v. Council -1996, ECR I-5755). In this respect, it is important to draw attention to the very elaborate recent research report on the effects of working long hours, published by the UK Department of Trade and Industry. [8] One of the conclusions of chapter 9 is, that “long hours working seems to have a particularly negative effect on women’s health and mental well-being. Women who work long hours are much more likely than their counterparts working shorter hours to report poor health.” The findings indicate a relationship with the fact that most women, working long hours, still are the ones that have the main responsibility at home for household functions. The chapter draws as final conclusion, that “overall, the findings suggest that long hours working puts women under greater amounts of pressure and has a greater negative impact on their health, well-being and satisfaction with life, than it does for men.”

4) Reference periods

“Whereas (...) it appears desirable to provide for flexibility in the application of certain provisions of this Directive, whilst ensuring compliance with the principles of protecting the safety and health of workers. (...) whereas, as a general rule, in the event of a derogation, the workers concerned must be given equivalent compensatory rest periods.” [9] The Directive has a quite complicated structure with regard to the 48-hour working week, to provide for various forms of flexibility.  article 6 regulates an average working time, including overtime of maximum 48 hours for each seven day period;  article 16 allows Member States to lay down a reference period of maximum four months;  article 17, par. 2 allows for a derogation of this maximum reference period (nb: not of the 48 hours per se) by law or collective agreement with regard to a whole range of specific groups, such as health care workers or security guards, but up to maximum 6 months  article 17, par. 3 allows for a more general derogation of the maximum reference period by collective agreement or ‘other agreement between the two sides of industry’ , but up to maximum 6 months

 article 17, par. 4 gives Member States the option ‘ to allow, for objective or technical reasons or reasons concerning the organization of work’ collective agreements to set reference periods of maximum 12 months (= so called annualised working hours).

It is important to note, that the derogations of article 17, par 2 and 3 are both only allowed, if the workers concerned are afforded equivalent periods of compensatory rest, or that, in exceptional cases where such equivalent rest is not possible, appropriate protection is afforded. In case of the derogation of article 17, par. 4 however, there is only the need to ‘compliance with the general principles relating to the protection of the safety and health of workers’.

In the context of this very complicated structure, in which the daily practice of workers’ protections is very much shaped and changed by the doings of social partners at various levels of bargaining, it is of particular importance to evaluate the impact of the Directive as implemented on all these levels, especially with a view to assess if workers receive the protection of their health and safety that should be afforded to them in cases in which there have been extended reference periods, and in particular in the case of annualised working hours on the basis of article 17 par. 4.

It is therefore very disappointing, that the Commission has not been able to come up with any thorough assessment of the realities in the various Member States and in various sectors. The Communication does not make reference to any research on the issue, nor on any other relevant material. This means, in the view of the ETUC, that it is impossible to judge - on the basis of the Communication - the actual use of the derogation, or the needs of businesses and workers, or the risks and dangers with regard to annualised working hours.

The ETUC has consulted its affiliates on the use of the derogation, and asked their opinions about its continuation. Several unions have mentioned the dangers in extending the reference periods for the counting of the average working week beyond 4 months, stating that 4 months gives already a lot of flexibility. They point at the fact, that the Directive itself does not give any additional protection in the possibilities for extending a reference period (for instance no absolute maximum to the amount of hours per seven day period, except the minimum regulations on daily and weekly rest), so theoretically it would be possible to put a full time working week of average 48 hours on annualized basis in half a year of seasonal work, which could lead to unacceptable lengthy hours for a long and uninterrupted period of time! This is a very important reason to ensure that, wherever long reference periods are considered, these are provided for in the context of procedural guarantees and the countervailing power of collective bargaining, which ensures that compensatory mechanisms are put in place. The ETUC and its affiliates therefore strongly oppose any development in the direction of dropping these safeguards with regard to the extension of reference periods.

Furthermore, some unions have reported about abusive practices, in which workers - employed on the basis of fixed term contracts - were confronted with the application of a reference period that far exceeded the duration of their contract. This practice should be tackled by revising the Directive in such a way, that the reference period applied to a worker can never be longer than the duration of his/her employment contract.

Extending the reference period by collective bargaining.

In this regard, it must be said, that the Communication of the Commission sends confusing messages: the only issue that the Commission is mentioning in this respect, is the fact that ‘Member States are not all in the same situation with regard to the possibility of extending the reference period’, because the coverage of collective bargaining varies per Member State, and is especially low for the UK.

In indirect wordings, the Commission herewith seems to suggest, that there could be a case to argue for dropping the need for collective bargaining to arrive at annualised hours, thereby suggesting that there should be a basic right for all employers to arrive at the same flexibility results with regard to working time, without having to comply to whatever safeguards.

The ETUC wants to draw attention to the fact that the introduction of the method of ‘derogation by collective agreement’ was a flexibility measure, meant for situations in which there is an initial clear need for legislative protection of workers, but it is considered to be helpful for both management and labour to be allowed a certain room to negotiate ‘made-to-measure’ solutions, provided there is a countervailing power on the side of the worker to ensure that the outcome is balanced and provides the worker with adequate protection. So, the choice is either protection by legislative regulation, in which case the protection is provided in the details of the regulation itself, or protection by collectively agreed regulation in which case the protection is more in the method used, namely collective bargaining.

In all countries, in which collective bargaining is not covering 100 percent of the working population, there is a difference in outcome for employers covered by collective agreement and those not covered by collective agreement. All enterprises have the freedom to enter into collective bargaining, or to abstain from that. If UK employers prefer not to bargain about flexibility needs, but want them for free - as they have done until now by fiercely claiming the perpetuation of the individual opt out (see below) - they may find themselves at odds with the rest of Europe. The European Treaty explicitly obliges the Community and Member States to promote dialogue between management and labour at all levels (article 136 and 138). It is therefore very much part of the European model, to promote flexibility in regulation by allowing social partners at various levels to provide for alternative forms of protection by collective bargaining.

5) The opt out

“There was no sign that the extent of sustained long hours working was systematically associated with the business or financial needs of workplaces. (...) “The business context to working long hours”, Employment relations research series no 23, Research by Warwick Institute for Employment Research, published by the Department of Trade and Industry UK, November 2003 There was a strong management consensus that sustained long hours working were undesirable and should be avoided or reduced, wherever possible. (...) It is apparent that the opt-out is widely used, (...) mainly as a precautionary measure by employers.” [10]

A major part of the Communication of the Commission is dedicated to the use of article 18, par. 1 (b) (i), the so called opt out. The amount of space used however is in the view of the ETUC not equivalent to the quality of the material and arguments presented. In this regard, the ETUC wants to draw attention to the following points:

 Originally, this clause was negotiated by the UK government when the Directive came about, and until recently only the UK made use of the possibility offered by article 18, to not apply article 6 on the maximum average working week of 48 hours in case of voluntary agreement with the individual worker.  With regard to the use of the opt out in the UK, the Communication refers to several government reports, and material by the CBI, but does not make any reference to relevant TUC-opinions and research, nor to other sources that provide for a genuine picture of workers’ concerns, thereby creating at least the image of being prejudicial to workers and trade union views on the matter;  This image is strengthened by the suggestive presentation of ‘reasons for use of the opt out’, that are presented as if there are no counter-arguments to be made on each of them;  With regard to the health and safety effects of the opt out, the Communication makes contradictory remarks. On the one hand it is stated, that there is a clear link between long hours and harmful effects on the health and safety of workers (which in the opinion of the ETUC is the legal basis for the existence of the Working time Directive anyway, and therefore does not need to be established again!). On the other hand it is said that the effect of the opt out on the health and safety cannot be judged, because of lacking data. However, where the opt out has led to long working hours beyond the average of 48 hours, there is a case for at least suspecting negative effects on the health and safety of workers, unless adequate compensatory mechanisms have been proved to be in place.  In this regard, however, the Communication shows clearly the unwillingness of the Commission to act: even though the Commission has found the UK in open violation of the minimum conditions for the use of the opt out - about the keeping of records, the impossibility to monitor compliance, etc - the Communication expresses only some wonder about how this can be possible.........  Paragraph 2.2.1.2 on legal evaluation ends by saying “ In fact, the way the Directive is transposed into national law, it could in practice prevent the workers in question from benefiting from certain rights laid down in the Directive, which was evidently not the intention of the Community legislature.” Full stop. No conclusion on further action. No infringement procedure. Not even the conclusion, that the opt-out has shown not to be applicable in a way that sufficiently protects the health and safety of workers, and therefore should be deleted as soon as possible......  At the end of the Communication only the very soft and careful question is put if everybody would please give his opinion on the conditions of application of the opt out.

The opinion of the ETUC can be no surprise. The ETUC has always been strongly opposed to the option for Member States to opt out of the already very flexible framework of protective measures as provided for in the Working time Directive. The option for Member States not to apply article 6 (average 48 hours) at all, when the individual worker agrees, allows for the effect of unlimited extension of working hours, only balanced by the vague obligation ‘to respect the general principles of the safety and health of workers’. In our view, the individual opt-out as such is in strong contradiction to the aims and provisions of the Working time Directive itself, and the basic principles regarding the protection of health and safety!

In the UK, where the individual opt out has been widely used by employers, research by the government, universities and trade unions has shown that the opt-out, rather than providing the UK with the possibility to gradually adapt its long hours culture to the prevailing average in the rest of the EU, has given employers in the UK a ‘lazy’ way out: Four million workers work more than 48 hours per week on average, which are 700.000 more than in 1992 when the Directive did not yet apply! (Labour Force Survey, UK). Only one in three people at work know that there is a 48 hour average working week limit; the law is widely abused, one in three of those who have signed an opt-out say they were given no choice; and nearly two out of three people who say they work regularly more than 48 hours a week say they have not been asked to opt out of the working time regulations. There is a lot of evidence suggesting that the opt-out, far from being necessary for British business, has exacerbated problems of low productivity and management incompetence, reducing the incentive for employers to modernise working practices.

Interestingly enough, a recent research-report by the Warwick Institute for Employment Research, published by the Department of Trade and Industry of the British Government, confirms these conclusions [11] • two groups of workers are mainly working sustained long hours, and many of them have signed an opt-out agreement: senior managers and professionals on one hand, and manual workers on the other hand; • for the managers and professionals, long hours are mostly related to the culture of the workplace and presenteeism, combined with the expectation that the investment in the job would carry the promise of increased future rewards; • for the manual workers, long hours frequently reflect institutionalised overtime, i.e. a situation in which overtime working for extra pay has become so normal that working overtime has become an important element in their overall pay; this has created often a vicious circle, in which low hourly rates of pay produce a need to work overtime hours, which in turn leads to low productivity per hour worked; • although these are initial barriers to change, the report points at evidence that resistance from unions and workforce to the execution of changes were encountered only in a minority of cases; however, there was stronger opposition when reducing working hours was proposed as a method to reduce labour costs; the report points at ample evidence, that employees are much more likely to accept changes to working practices if they are consulted about them and have an opportunity to be involved in their introduction; • moreover, increasingly personnel managers in British firms are of the opinion that working excessively long hours was a ‘bad practice’, being neither good for business nor for the individual employee; • The needs of the business and the workload, although often mentioned to be the most common barrier to reducing working hours, turned out to be not the real reasons for long hours. There was no sign that the extent of sustained long hours working was systematically associated with the business or financial needs of workplaces.

The report ends by stating “ It is apparent that the opt-out has been widely used (....), mainly as a precautionary measure by employers. (...) The opt-out provides a comfort zone for employers who had staff regularly working additional working hours, lest that practice should stray into becoming sustained long hours above the weekly working time limits of the Working Time Regulations.”

More can be said about the issue, and more reports cited. The ETUC has chosen to put forward especially these references, because they confirm the basic criticism of the ETUC on the existence of the opt-out. Discussing the arguments pro and contra of the opt-out is not discussing free choice of workers, or any other ideological debate. It is about level playing fields for enterprises all over Europe, and about basic protection of workers against health and safety hazards that should not be subject to unfair competition between enterprises or Member States.

Why do employers in most Member States of the EU have to apply strict working time regulations and sit at the negotiating table with unions to provide for negotiated flexibility, if and when at the same time employers in the UK can avail themselves of a situation in which no rules apply? The answer by the EU and its institutions should be: this situation is unacceptable and has to end as soon as possible.

The ETUC therefore welcomes very strongly the recent report on the revision of the Working time Directive, as adopted by a great majority of the European Parliament, in which the Parliament “calls for the revision, with a view to the phasing-out, as soon as possible, of the individual opt-out”, and in the meantime calls on the Commission “to identify practical ways of tackling potential or actual abuses of the opt-out provision, including seeking views on how to best strengthen the voluntary nature of the opt-out.” [12]

6) On-call work and the definition of working time (Simap and Jaeger)

“ (...) the objective of the Directive is to ensure the health and safety of workers. The Court notes that (...) to exclude duty on-call from working time if physical presence is required would seriously undermine that objective.” [13] So, there are many good reasons for the Commission to now decide to put an end to the individual opt-out. However, two recent judgments of the European Court of Justice appear to have created some difficulties in several Member States. In principle, these decisions have clarified the definition of working time, deciding that time spent ‘on-call’ (for instance by doctors being available for urgent cases in hospitals at night) is to be counted as working time if the time is spent at the workplace, regardless of the question if the worker has actually been engaged in professional activities.

These judgments in general have been welcomed by trade unions, because they confirm the basic principle that hours that are not at the free disposal of the worker because of working duties should be considered to be working time. But at the same time, there are signals that several Member States are experiencing or foreseeing acute problems in their healthcare sectors and some other sectors, if they have to apply these Court judgments. And there are some Member States, even those who on grounds of principle have never been in favour of the individual opt-out, that all of a sudden are re-thinking the need to delete article 18, 1 (b) (i) because they might need this provision in the Directive to tackle their problems with regard to on-call work. In the Communication, reference is made to changes in legislation in France, Germany, Netherlands and Spain with a view to adapt to the ECJ-judgements and incorporating some form of opt-out (mostly restricted to the health sector). Only in Luxemburg recently an opt-out arrangement was introduced for the hotel and catering sector.

Even though it should be stressed, that these opt out arrangements are only limited to specific professions and situations, and are not meant to be implemented as wide ranging as in the UK, the ETUC is very concerned about these developments. While we appreciate the difficulties in several Member States, we do not believe that a simple introduction of the opt-out is the right way to solve these problems.

First of all, the ETUC is of the opinion that in this stage it is impossible to judge the situation in the various Member States and sectors concerned, as the Communication of the Commission lacking any detailed information. Reference is made to the fact, that an impact assessment of the Court cases has still to be carried out both at national and at Community level. At the same time, panic stories by Member States about the amount of extra doctors that would be needed to be able to implement the ECJ-judgements are taken at face value. The Communication extensively explains why the definition of working time as interpreted by the ECJ causes so many problems in some Member States. But the interesting question, why not all Member States are struggling with the implementation (maybe because they are very well able to cope with them, within the framework of existing laws and regulations?) is not put forward. Furthermore, by not questioning the Member States about the specific situations in their problematic sectors, nor asking them to specify in more detail the problems they face, it might well be that the Commission is focussing on solutions for the wrong problem.

What are the main issues, dealt with in the ECJ-cases?

Simap-case:  Time spent on call by doctors in primary health care teams must be regarded in its entirety as working time, and where appropriate as overtime, if they are required to be at the health centre. If they must merely be contactable at all times when on call, only time linked to the actual provision of health care services must be regarded as working time;  The consent given by trade union representatives in the context of a collective or other agreement is not equivalent to that given by the worker himself, as provided for in article 18 par. 1 (b) (i).

Jaeger-case:  Confirms the definition of on call working time of the Simap case;  Explicitly states, that the Directive precludes legislation of a Member State which classifies as rest periods an employee’s periods of inactivity in the context of such on-call duty;  It is also not possible for a Member State to allow collective agreements to provide for such approach;  In order to make use of the derogation possibilities of article 17 par. 2 of the Directive (which allows derogation of the 11-hour daily rest for instance for health care workers) ‘a reduction in the daily rest period of 11 consecutive hours by a period of on-call duty performed in addition to normal working time is subject to the condition that equivalent compensating rest periods be accorded to the workers concerned at times immediately following the corresponding periods worked.’

It is important to note, that most Member States only started to panic about the ECJ-judgements after the decision in the Jaeger case. The reason for this may be, that it is not only - or even in some situations not primarily - the working time definition that causes problems in the current organization of working time in hospitals, but the way one has to deal with the scheduling of the daily rest. Affiliates of the ETUC have reported, that especially the judgement of the Court, that the full compensatory rest of 11 hours that has to follow immediately after the on-call working time, has caused problemsincollectivelyagreedsystems,thatin their view provide for adequate and balanced solutions (including time-saving systems, that allowed workers compensation in a different form).

It is therefore of major importance, that as soon as possible a full impact assessment with regard to all the relevant elements of the Court cases is carried out and presented by the Commission. This impact assessment should also take on board the experiences and views of the social partners in the relevant sectors, especially with regard to the question, if viable solutions can be found within the framework of the existing Directive as interpreted by the ECJ.Also the European Parliament, in its recently with great majority adopted report on the revision of the Working time Directive, regrets that the Commission has not been able to produce any reliable material on the issue, and has not given any guidance to Member States as to the implementation of the ECJ-judgements in a way that respects the basic principles of the Directive, i.e. to limit working hours and provide workers with adequate protection for reasons of health and safety. The European Parliamentrightfully callsonMember States to exchange good practice solutions within the framework of the Directive, and to explore the scope for new work practices and patterns.

The ETUC is of the opinion, that only after such assessment, which cannot take place without the fully fledged involvement of the social partners in the relevant sectors, it will be possible to judge if, and in what respect, the Working time Directive would need to be revised or adapted. In the meantime, it is of the highest importance to prevent Member States to introduce or extend the use of the opt-out to solve their perceived short-term problems.

To that end, the Commission should provide Member States as soon as possible with a clear perspective, in which phasing out of the possibility to use the individual opt-out is combined with concrete proposals for a long term and sustainable response to the problems raised by the Simap and Jaeger judgements.

The ETUC does not accept a simplistic revision of the definition of working time, with a view to exclude on-call working time from the definition, as a viable solution. Such ‘solution’ would be in explicit violation of the judgement of the Court in the Simap-case, stating that “ (...) the objective of the Directive is to ensure the health and safety of workers. The Court notes that (...) to exclude duty on-call from working time if physical presence is required would seriously undermine that objective.” [14] Furthermore, a revision of the definition would have a far-reaching and detrimental effect on all existing regulations and agreements with regard to working time, and especially those situations in which on-call working time is already included.

A long term and sustainable response should take into account, that the short term labour market shortages especially in the health sector will become even more difficult to solve if recourse is taken to short term ‘solutions’, that continue a situation in which long working hours are combined with long on-call duties. As several organisations of doctors and doctors-in-training recently have confirmed, there are serious problems to recruit and retain medical staff in hospitals because of the bad working conditions. Medical students give up their studies; doctors look for jobs outside hospitals or go to other countries with better working conditions. The major complaint in this regard is the long and inconvenient working hours. The Marburger Bund [15] has come up with research showing that 77 percent of doctors that resign from the job give as main reason the bad working hours, and interestingly enough 51 percent of those giving up would return if the working conditions in hospitals would improve.

An additional aspect of the issue is the fact, that these working hours are especially burdensome for parents and others who have to combine work with family duties. In a situation, in which in the higher professions in healthcare increasingly women are employed and will be needed to fill the vacancies, it is essential to develop innovative approaches to the scheduling of working patterns, that allow for flexibility without taking recourse to sustained long hours working, allowing for reconciliation of work and family life.

In short,  the Commission needs to come up as soon as possible with an impact assessment of the ECJ-cases, which fully takes into account the experiences and views of the social partners in the relevant sectors;  the Commission should urge the Member States to refrain from introducing or extending the individual opt out as a solution for their short term problems in the health sector, offering them instead guidance on how to implement the ECJ-judgements, and providing them with a perspective of a long term and sustainable response that fully respects the basic principles of the Directive;  the Commission should not seek to solve the problem by simply changing the definition of working time, and exclude on-call working time from the definition;  the Commission should promote social dialogue as a major means to provide for these long term and sustainable solutions, as well on the national, on the sectoral as on the intersectoral level.

7) On other derogations

“ (...) every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave” [16] Article 17 par. 1 (a): managing executives; autonomy to take decisions

The directive allows for a derogation from the principles of the directive particularly in the case of managing executives or other persons with autonomous decision-taking powers, on the condition that there is due regard for the general principles of the protection of the health and safety of workers. Several countries have used this option, and excluded managerial staff and other workers whose tasks are similar to managerial work. The exclusion can also be applied to professional staff, who carry out their tasks independently enough.

This derogation possibility increasingly leads to a situation where large groups of workers are totally left outside working time protection without paying any real attention to the need to also in these cases provide for health and safety protection. The derogation possibility in the directive is interpreted and applied very widely and is a matter of growing concern. It should be noted that the organisation of working time has changed considerably over the last years. Firstly, telework, mobility and travelling have increased and continue to do so. Secondly, the nature of work has changed and forms of semi-independent professional work have increased. This kind of work is not done under precisely predetermined time schedules, but working time is organised more flexibly. Thirdly, managing cultures have changed and allow the worker more independence when doing the job. Also a great amount of organisation of the working time has been handed over to the workers and work is more managed by results.

In the view of the ETUC, it is not acceptable, that these developments leave increasing groups of workers - who in practice work within the framework of organisations that expect them to fit in their working patterns, and therefore cannot be seen as being able to fully and autonomously decide on their working time - without any protection against health and safety hazards of long working hours. The ETUC has received many complaints from affiliate organisations and from the Council of European Professional and Managerial Staff Eurocadres, which is associated to the ETUC ,that the vague terms and potential wide scope of the derogation, and the way these are implemented by Member States, increasingly bring higher staff and people in lower management into the area of non-protection. The possibility to derogate should therefore be tightened and defined more accurately. For example, it could be considered to allow derogation only in the case of Chief Executive Officers (or comparable) , senior managers directly subordinate to him/her i.e. the executive team, and/or those who have a general delegated authority to take decisions on behalf of the employer, or who are directly appointed by the board of directors.

The discussion on this derogation is directly linked to the discussion on the individual opt-out. The derogation of article 17 par. 1 (a) provides Member States with a specific option to collectively exclude r managerial staff, whereas in the UK the individual opt-out is partly used for large groups of higher and lower managerial staff and other professionals. In both situations, groups of workers are brought outside the scope of health and safety protection with regard to long working hours. It would be of great importance to better assess the needs of businesses and workers with regard to the management of working time in these professions, and discuss proper ways to provide the workers concerned with adequate protection.

The legal obligation to do so is based on the European Social Charter which prescribes that every worker has a right to limitation of his/her working hours, and on the provisions of the Working time Directive regarding the derogations of article 17 and 18, which prescribe that these derogations only can be used when due regard is given to the general principles of the protection of health and safety of workers.

The Commission should evaluate the way in which the derogation of article 17, 1(a) is currently applied, and especially ask from Member States to report on how they have implemented and monitored the obligation to give due regard to the health and safety protection of the excluded groups of workers. The Commission should also take a more active approach, and invite the social partners to comment on possible ways to address the specific aspects of managing working time for higher and managerial staff, with a view to come up with proposals that provide for adequate protection, while offering flexibility to enterprises and workers concerned.

Article 17 par. 1 (b) : family workers

Article 17 also allows for derogation with regard to ‘family workers’. The ETUC is of the opinion that this term is very vague, and potentially can be used to cover a wide range of (probably mostly female) workers. It is therefore important that the Commission evaluates the the use of this derogation by Member States, to see which groups are excluded, and how these excluded groups are monitored with regard to possible health and safety risks. At the same time, the need to continue the derogation in its current form should be assessed, and if derogation is still deemed necessary a more precise and limited definition should be considered.

8) Flexibility for enterprises: compatible with reconciliation of work and family life?

“The success of policies to raise employment rates will depend on the possibility for both women and men to achieve a balance between their professional career and family life”. [17] In part two of its Communication, in which the Commission presents the options to be discussed, the Commission makes the argument: “ Making progress towards more flexible working time arrangements accords with the Social Policy Agenda, which sets out a general approach to the whole issue of employment quality, from occupational safety and health up to and including the need to reconcile work and family life and getting the right balance between flexibility and security. Greater flexibility in the way working time is organised will meet the needs both of employers and workers. For the employers, the essential point is to be able to adapt effective working time to fluctuations in demand, whether seasonal or irregular. For the workers, greater flexibility can meet their needs in terms of making work more compatible with family commitments.”

In the view of the ETUC, the Commission confuses several issues in this presentation, and thereby creates the false illusion of automatic joint interests of employers and workers. Enterprises that have fluctuations in demand and irregular changes in the workload will probably need workers that can be flexible in adapting to business needs, either in being available long hours when necessary, or working in irregular working time patterns. Workers that have child-rearing responsibilities will probably need regular and predictable working time patterns, no excessive long hours working, temporary or long term reduction of working hours, time saving accounts and/or leave facilities, and flexibility in the scheduling of their working hours to take account of crèche or school opening times. These interests do not automatically coincide, nor lead automatically to a certain set of solutions or working patterns. On the contrary, without additional framework regulations or collective agreements, very often the flexibility needs of enterprises lead to a picture in which male workers are working long hours and make overtime within the framework of standard employment relationships, while female workers work reduced hours within the framework of precarious employment relationships. In this picture, women are disadvantaged in three ways:  it is less possible for men to share in childcare and other household obligations  women have less possibilities to compete for more senior jobs  women pay a high price for their flexibility needs, by accepting precarious working conditions.

Of course, it is possible to take a win-win approach, trying to ‘reconcile’ flexibility needs of firms with flexibility needs of workers. These win-win approaches can be found when on the side of enterprises there is acknowledgement that also their flexibility needs are not necessarily best met by long working hours, and that it is interesting to cut on expenses for overtime working,

or that reduction of working hours - either in a collective way or by allowing individuals to adapt their working time or working pattern to their individual needs - can be combined with more flexibility for the enterprise. In these situations, trade unions in many Member States have proved to be able to agree on flexible, innovative and sustainable approaches with regard to working time patterns. In such situations of negotiated flexibility, there can indeed be positive outcomes for enterprises and workers.

The existing Directive gives ample room to provide for the flexibility needs of enterprises.

In the view of the ETUC, what is lacking in the Directive is sufficient support and safeguards for the flexibility needs of workers, especially in regard of the increasing demands pressing upon all workers, men and women, to take up and share care-responsibilities for children and elderly parents.

The issue of reconciliation of work and family life is one of the major challenges to tackle on the national as well as on the European level, for many different and important reasons, of which the protection of health and safety of workers is only one.

Working time is an important area where improvements have to be made, both in terms of the amount of hours worked, as in the scheduling of hours. Long hours may offer short-term solutions for short-term problems, but have an adverse effect on the longer term, taking into account the need for the progressive modernisation of European labour markets in line with the approach agreed at the Lisbon Council:  increased participation of women is not served by longer working hours without any flexibility;  the long hours culture in higher professions and managerial jobs is an obstacle for the upward mobility of women, and keeps gender segregation in place;  long working hours on a weekly basis stand in the way of longer working lives on a lifetime base: active ageing presupposes that workers are not worn out long before the time they reach the retirement age;  to combat ‘ inactivity’ and long term unemployment there is good reason to hire additional workers instead of advocating long hours and overtime;

It is therefore very disappointing that the Communication of the Commission does not offer more than one page of phraseology on this issue. Reference is made to a recent survey about the variation of measures taken in EU and EFTA-countries, which indeed show that most examples are about forms of reduction and adaptation of working hours. But no indication is given on how the Commission could envisage the revision of the Working time Directive to be used to improve the compatibility of work and family life, neither in legal terms, nor in terms of content. Moreover, where the Commission at the same time wants to offer more flexibility to enterprises and Member States, and does not propose to put an end to the individual opt-out of the 48-hour working week, there does not seem to be the genuine will on the side of the Commission to seriously pursue better conditions for the reconciliation of work and family life for workers in Europe.

The Commission should therefore provide for a better and more elaborate framework for discussing the introduction of provisions that enhance the flexibility and choice for workers to adapt the organisation of working time to their needs, especially with regard to the reconciliation of work and family life.