Brussels, 18 November 2003

JM/CP/dm

VIA FAX 02 298 20 99

Anna DIAMANTOPOULOU Commissioner DG EMPL European Commission Rue Joseph II, 27 B - 1000 Brussels

Re: Revision of Directive 93/104/EEC on the organisation of working time

Dear Commissioner,

As you know, the Directive on the organisation of working time of 23 November 1993 lays down important principles and minimum regulations with regard to daily and weekly rest, breaks, annual leave, and maximum weekly working time, as well as about night work, shift work and patterns of work. The Directive allows for many derogations, which provide Member States with ample possibilities for flexibility in the organisation and scheduling of working time.

The Directive requires that the Commission re-examines two far-reaching derogation provisions before expiry of seven years after the date of implementation. This date is 23 November 2003, ten years after adoption. On the occasion of this tenth anniversary, the ETUC expects the Commission to act decisively to end the long hours culture across Europe, in favour of more modern working time arrangements.

Self-evidently, an assault on excessive working time cannot be progressed as long as the 1993 Directive would continue to allow for the so-called ‘ individual opt-out’. Only the UK now makes use of this provision. As a result, the UK has the largest proportion of workers of any Member State working very long hours (around 4 million people), and has no effective enforceable limit on working time. Around one million UK workers even work more than 60 hours at the moment!

Abuses are widespread - and have been documented in a study for the Commission by Barnard, Deakin and Hobbs of Cambridge University.

Many workers can ‘choose’ between signing an opt-out agreement and not having a job; many others sign in fear of their career-prospects. Too many employers bring unfair pressure on their staff to accept excessive working hours, and many workers are unaware of the right to refuse. The results have been entirely predictable: large numbers of workers suffering from stress because of long working hours, no access for workers to flexible working hours, increasing problems for working parents to combine work and family life.

The ‘individual opt-out’, far from serving as a transitional measure to allow British long hours practices to gradually adapt to continental average working hours, has on the contrary allowed the UK to extend these practices. According to the British Labour Force Survey there are now in total more workers working long hours than at the time of the adoption of the Directive.

It can be strongly argued 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 negotiate with trade unions to modernise working practices, improve productivity and raise pay in core hours to reduce reliance on excessive overtime.

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, (although the decisions probably put too much emphasis on the question if the worker is available to work on-call while staying at the workplace, or while being available elsewhere, for instance at home). 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 rumours that these Member States, even those who on grounds of principle have never been in favour of the individual opt-out, 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.

The ETUC is very concerned about these developments. While we appreciate the difficulties in several Member States, we do not believe that a simple continuation of the opt-out is the right way to solve these problems.

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;

But even looking into the short-term needs of the sectors that now are facing difficulties, it must be stressed that these sectors need the possibilities for collective scheduling of working patterns and schedules. Individual opt-outs will not solve their structural problems!

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);

 continue to allow for annualised working hours, as foreseen in article 17, 4, but only by collective bargaining, to safeguard that appropriate working time patterns and compensatory mechanisms can be put in place;

 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;

 re-examine the need for other existing derogations;

 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, when compensatory mechanisms are put in place, preferably on the basis of collective bargaining;

 introduce provisions that enhance the flexibility and choice for workers to adapt the organisation of working time to their needs.

We would welcome the opportunity to discuss this with you in more detail.

Yours sincerely,

John Monks General Secretary

Cc: President of the European Commission and other Commissioners