The Directive provides that workers in all sectors, public or private, must not work longer than 48 hours a week, including overtime. The Directive also specifies requirements for rest periods, breaks and no less than four weeks' paid holiday per year. Its aim is to protect workers from the health and safety consequences of overworking.
In 1993, the UK negotiated an opt-out which allows Member States not to apply the limit to working hours under certain conditions: prior agreement of the individual, no negative fall-out from refusing to opt-out, and records kept of working hours of those that have opted out.
The opt-out, and in particular the UK's use of the opt-out, was one of the main concerns raised in a recent Commission report into the operation of the Directive. Figures quoted by the Commission show that around 16% of the UK workforce works over 48 hours per week – up 1% from the early 1990s.
In fact, says the Commission, the UK is the only Member State in which working time has increased over the last ten years.
Of the 16% working more than 48 hours per week, 8% work over 55 hours, 3.2% work more than 60 hours per week, and 1% work more than 70 hours per week. However, around 46% of these are employed in a managerial capacity, and are therefore caught by an exemption to the 48-hour rule in the Directive.
While the UK is the only country to have made extensive use of the opt-out, France, Germany, the Netherlands, Spain and Luxembourg are preparing or have passed legislation to make restricted use of the opt-out, in certain sectors.
The report has raised concerns that not all of the opt-out conditions are being met. The Commission points out, for example, that workers are frequently asked to sign the opt-out agreement at the same time as signing their employment contract, which acts a constraint to freedom of choice.
Accordingly, the Commission is consulting on the best way forward, to ensure that its aims – i.e. the protection of the health and safety of employees – are met.
Anna Diamantopoulou, Commissioner for Employment and Social Affairs, said:
"We appreciate the importance of freedom of choice of individuals as to how they work. But in practice the measures that the Directive foresees to safeguard the workers' interests when opting out are not properly implemented."
She continued:
"We need to find a solution that balances the interests of all concerned. We also need to consider how best to define working time, to avoid what is currently a flexible legislative framework becoming one that creates unnecessary burdens."
The consultation asks for responses on five main issues, with a view to revising the Directive in future:
The length of the reference periods – the period over which the number of hours worked by an individual is assessed. Currently this is four months, with certain provisions allowing for 6 months or a year.
The definition of working time following recent European Court of Justice rulings on time spent on call.
The conditions for the application of the opt-out.
Measures to improve the balance between work and family life.
How to find the best balance of these measures.
The deadline for responses is 31 March 2004.
The consultation document is available as a 24-page pdf here.