Opting out of the European Working Time Directive

Transcription

1 Optig out of the Europea Workig Time Directive Coordiatig the Network of EU Agecies 2015

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3 Optig out of the Europea Workig Time Directive Wyattville Road, Loughlistow, Dubli 18, Irelad. - Tel: (+353 1) [email protected] - Web:

4 Whe citig this report, please use the followig wordig: Eurofoud (2015), Optig out of the Europea Workig Time Directive, Publicatios Office of the Europea Uio, Luxembourg. Authors: Jorge Cabrita, with the collaboratio of Yolada Torres Revega Luxembourg: Publicatios Office of the Europea Uio, 2015 doi: /380 ISBN: Europea Foudatio for the Improvemet of Livig ad Workig Coditios, 2015 For rights of traslatio or reproductio, applicatios should be made to the Director, Europea Foudatio for the Improvemet of Livig ad Workig Coditios, Wyattville Road, Loughlistow, Dubli 18, Irelad. The Europea Foudatio for the Improvemet of Livig ad Workig Coditios (Eurofoud) is a tripartite Europea Uio Agecy, whose role is to provide kowledge i the area of social ad work-related policies. Eurofoud was established i 1975 by Coucil Regulatio (EEC) No. 1365/75, to cotribute to the plaig ad desig of better livig ad workig coditios i Europe. Europea Foudatio for the Improvemet of Livig ad Workig Coditios Telephoe (+353 1) [email protected] Web: Europe Direct is a service to help you fid aswers to your questios about the Europea Uio. Freephoe umber (*): (*) Certai mobile telephoe operators do ot allow access to umbers or these calls may be billed. Cover image Widow ad Clock Musée d Orsay by Derek Key is licesed uder CC BY 2.0.

5 Cotets Itroductio Europea Workig Time Directive Opt-out provisios i the EU Member States Debate o the opt-out ad related matters Impacts of the opt-out Coclusios Bibliography Aexes

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7 Itroductio The Europea Workig Time Directive (EWTD) 2003/88/EC guaratees maximum weekly workig hours ad miimum periods of rest ad aual paid leave to all workers i the Europea Uio. Oe of its mai features is a maximum average workig week of 48 hours (icludig overtime) as part of the provisios layig dow miimum safety ad health requiremets for the orgaisatio of workig time. The directive, however, also provides the optio for Member States ot to apply (or to opt out of) the 48-hour weekly workig limit. Not all Member States allow the use of this opt-out possibility ad the coditios uder which it ca be used vary sigificatly from coutry to coutry. Additioally, very little is kow about its use ad its impact o employers ad workers. Drafted followig a request by the Committee o Employmet ad Social Affairs of the Europea Parliamet, this report describes how the Member States make use of the workig time opt-out, how widely it is used ad what its impacts are o workers ad employers. The first part presets backgroud to the EWTD, icludig the provisios for optig out ad their limits. The secod part looks at the applicatio of the opt-out at atioal level both formally ad i practice. It describes briefly whether ad how each Member State has trasposed the optio to deviate from the maximum workig week ad looks at the extet to which opt-outs have bee used. The third part is dedicated to the curret debates ivolvig social parters ad govermets about the use of the opt-out ad log workig hours. Fially, the fourth part briefly discusses what the available research says about potetial cosequeces of the use of the opt-out. This report is based maily o the cotributios from Eurofoud s Network of Europea Correspodets for the aual updates o collectively agreed workig time. The cotributios stem from the replies to a commo questioaire that icluded specific questios regardig the use ad impact of the opt-out from the EWTD (see Aex 1). Europea Workig Time Directive Mai provisios The Workig Time Directive 2003/88/EC cocerig certai aspects of the orgaisatio of workig time was adopted by the Europea Parliamet ad the Coucil of the Europea Uio uder Article 137(2) of the EC Treaty (ow Article 153(2) of the Treaty o the Fuctioig of the Europea Uio, TFEU) with the mai purpose of establishig miimum safety ad health requiremets for the orgaisatio of workig time. This directive cosolidates the former Coucil Directive 93/104/EC of 23 November 1993 as ameded by Directive 2000/34/EC of the Europea Parliamet ad of the Coucil of 22 Jue The EWTD requires EU Member States to guaratee certai rights for all workers, icludig: a limit to weekly workig hours, which must ot exceed 48 hours o average, icludig ay overtime; a miimum daily rest period of 11 cosecutive hours i every 24; a rest break durig workig hours if the worker is o duty for loger tha 6 hours; a miimum weekly rest period of 24 uiterrupted hours for each 7-day period, i additio to the 11 hours daily rest; paid aual leave of at least 4 weeks per year; extra protectio for ight work. Europea Foudatio for the Improvemet of Livig ad Workig Coditios,

8 Optig out of the Europea Workig Time Directive The EWTD, built o a legal foudatio focused o safety ad health, is a very importat elemet of the EU s social policy acquis. The directive must be uderstood as beig firmly embedded i a wide rage of iteratioal stadards ad fudametal rights, icludig covetios of the Iteratioal Labour Orgaizatio (ILO), the Europea Social Charter, the Charter of Fudametal Rights of the Europea Uio, ad so o, which are very much iterdepedet. The fact that all workers i the EU are etitled to certai limits to workig hours has bee clearly iscribed i the Charter of Fudametal Rights of the Europea Uio, which became legally bidig i December 2009 with the Lisbo Treaty. Article 31 (paragraphs 1 ad 2) of the Charter provides for fair ad just workig coditios, icludig that: every worker has the right to workig coditios which respect his or her health, safety ad digity ; every worker has the right to limitatio of maximum workig hours, to daily ad weekly rest periods ad to a aual period of paid leave. Attetio must also be paid to the so-called horizotal clauses, i particular the geder maistreamig clause (Article 8, TFEU) ad the social clause (Article 9, TFEU) which are to be read i cojuctio with the overall social objectives of the Uio eshried i Article 3 of the Treaty o Europea Uio (TEU). That meas that i defiig ad implemetig its social policies ad activities the EU must cosider all those aspects, icludig social progress ad a high level of protectio. Additioally, the Europea Uio Court of Justice (ECJ) has already recogised i several istaces (cases such as Dellas, case C-14/04, BECTU, case C-173/99, Wippel, case C-313/02, amog others) that the directive s provisios cocerig maximum workig time, paid aual leave ad miimum rest periods costitute rules of Commuity social law of particular importace, from which every worker must beefit as a miimum requiremet ecessary to esure protectio of his safety ad health. Optig out of the EWTD Despite beig of geeral applicatio i the EU, the EWTD refers to some situatios ad coditios uder which its requiremets for workig hours, rest, aual leave, periods of referece, ad so o, ca be deviated from. These provisios are geerically kow as derogatios ad, i relatio to the EWTD, ca take essetially three differet shapes. First, there are derogatios related to specific roles such as maagig executives or others with autoomous decisiomakig powers, specific activities or situatios (for example, activities requirig a permaet presece such as security/surveillace, press, radio or televisio), shifts ad split work, ad doctors i traiig. These are covered i Article 17 of the EWTD ad iclude the possibility to derogate from the maximum weekly workig time of 48 hours. This meas that, for example, if the Member States opt for this derogatio, self-employed workers are ot covered by the right to the limit to weekly workig hours. Secodly, there are derogatios by meas of collective agreemets, which meas that employers ad workers represetatives (or represetative orgaisatios) ca deviate from most of the EWTD provisios (icludig rest periods ad aual paid leave) except for the provisio o the maximum weekly workig time of 48 hours established i Article 6 of the directive. Fially, Article 22, paragraph 1 of the directive (see text box below), determies that, uder certai coditios, Member States ca decide to allow the o-applicatio of the weekly maximum of 48 hours provided that the priciple of protectio of workers health ad safety is guarateed ad there is a agreemet betwee the employer ad the worker cocered. This possibility was already available i Article 18, paragraph (b)(i) of Directive 93/104/EC, ad should have bee reviewed before 23 November 2003 (together with other provisios of the directive). 2 Europea Foudatio for the Improvemet of Livig ad Workig Coditios, 2015

9 Optig out of the Europea Workig Time Directive Article 22(1) of the EWTD A Member State shall have the optio ot to apply Article 6 [maximum weekly workig time], while respectig the geeral priciples of the protectio of the safety ad health of workers, ad provided it takes the ecessary measures to esure that: (a) o employer requires a worker to work more tha 48 hours over a seve-day period, calculated as a average for the referece period referred to i Article 16(b), uless he has first obtaied the worker's agreemet to perform such work; (b) o worker is subjected to ay detrimet by his employer because he is ot willig to give his agreemet to perform such work; (c) the employer keeps up-to-date records of all workers who carry out such work; (d) the records are placed at the disposal of the competet authorities, which may, for reasos coected with the safety ad/or health of workers, prohibit or restrict the possibility of exceedig the maximum weekly workig hours; (e) the employer provides the competet authorities at their request with iformatio o cases i which agreemet has bee give by workers to perform work exceedig 48 hours over a period of seve days, calculated as a average for the referece period referred to i Article 16(b). The opt-out cotaied i Article 22, paragraph 1, is oly applicable i relatio to the maximum weekly workig time (i Article 6), ad ot to other provisios of the directive such as miimum daily ad weekly rest, paid aual leave, ad limitatio of ight ad shift work. Limits to the opt-out The directive does ot provide explicit limits o the hours workers who opted out ca agree to work; or does it set limits o the period of time over which the opt-out will be effective. Apparetly, workers ca agree o workig a virtually ulimited umber of hours ad for a ulimited period of time. However, there are two implicit limits, as idetified i the Europea Commissio Staff Workig Paper about the EWTD (Europea Commissio, 2010a). The first is that workig hours caot exceed 78 hours per week. This maximum results from the applicatio of the miimum periods of daily ad weekly rest (90 hours = 11 hours x 5 days + 35 hours of weekly rest or 11 hours x 6 days + miimum of 24 hours of rest) whe deducted from the 168 hours i a week. I fact, the Europea Commissio ackowledged this as a problem ad i its 2004 proposal to amed the curret directive proposed a absolute maximum limit (Europea Commissio, 2004). The proposal suggested that o worker works more tha sixty-five hours i ay oe week, uless the collective agreemet or agreemet betwee the social parters provides otherwise. The secod extremely importat implicit limit cocers the respect for the geeral priciples of the safety ad health of workers. Article 22 states that the competet authorities may for reasos coected with the safety ad/or health of workers, prohibit or restrict the possibility of exceedig the maximum weekly workig hours. The reasos coected with the safety ad/or health of workers uder which the opt-out ca be forbidde remai to be cocretely defied but i its paper the Commissio asks whether allowig opted-out workers to work up to 78 hours per week, o average, for a prologed time could be compatible with the health ad safety priciples uderlyig the Directive (Europea Commissio, 2010a). Europea Foudatio for the Improvemet of Livig ad Workig Coditios,

10 Optig out of the Europea Workig Time Directive Further, the directive does ot idicate whether the limits of workig time ad rest periods should be applied per worker or per cotract. If the limits are applied per worker, that would mea that the total umber of hours worked by a worker, regardless of the umber of employers he or she works for, must respect the directive s provisios. If they were set per cotract, the limits would be applicable to each employmet relatioship separately, regardless of the total umber of hours worked. I practice, if the limits to the opt-out are set per cotract, there might be situatios i which workers ca work well beyod the maximum set i the directive itself (Europea Commissio, 2010a). A similar problem takes place with the applicatio of the opt-out: should the opt-out provisios be applicable to the worker, coverig all the employmet relatioships he or she might have, or to each employmet cotract separately? I that respect, the provisios i place i the Member States vary. I Malta, Latvia, Polad, Slovakia ad Spai, for example, the applicatio of the opt-out takes ito cosideratio each employmet cotract, which meas that i practice workers may accumulate opt-outs above the implicit limits cotaied i the EWTD. By cotrast, the provisios i Bulgaria, Germay, Hugary ad the Uited Kigdom ted to be more protective as the total umber of hours worked per worker has to comply with the directive idepedetly of the umber of jobs they might have. I Latvia, for example, it is possible for agreed workig time to exceed 40 hours ad eve 48 hours, if workers have cocluded fulltime, or eve part-time, employmet cotracts with several employers. Latvia labour law does ot prohibit employmet with several employees ad does ot restrict the accumulated workig time. As a cosequece, the reportig of total workig time is ot a requiremet, except for youg workers (for example, the labour law establishes that the time spet o studies ad work shall be summed ad may ot exceed 7 hours a day ad 35 hours a week for those uder 18). It is therefore ot possible for employers ad ispectio authorities to kow how may workig hours are agreed i differet idividual employmet cotracts. All thigs cosidered, it seems that there are also strog argumets to support a applicatio of the directive, ad therefore of the opt-out, i absolute terms. This meas that, if allowed, the opt-out should apply to the worker, takig ito accout all the hours worked i all his or her jobs, ad ot to the differet employmet cotracts separately. First, the Charter of Fudametal Rights, which is legally bidig, refers to workers ad ot employmet relatioships. Log workig hours accumulated i differet jobs might have serious egative impacts o the safety ad health of workers whereas employmet relatioships are immue to safety ad health issues. Secod, a qualified or per-cotract applicatio would attribute all the resposibility to the idividual, who could iadvertetly ed up workig very log hours ad disregardig his or her ow safety ad health. Who keeps track of all situatios ad iforms workers that they might be harmig themselves by optig out of the EWTD i their various jobs? Self-motivatio may be importat to explai log workig hours but exteral factors such as work schedules, fiacial rewards, career opportuities ad market competitio ca also force people to work above the limits advisable for their safety ad health. Opt-out provisios i the EU Member States The EU Member States ca be divided ito three groups accordig to the use of the opt-out uder Article 22(1) of the EWTD (referred to as idividual opt-out or just opt-out hereafter). There is a group of five coutries where the idividual opt-out ca be used irrespective of the sector of activity or occupatio ad a group of 11 coutries where the opt-out ca (or could) be used oly i certai sectors or occupatios. The remaiig coutries do ot allow the use of the opt-out (Figure 1). 4 Europea Foudatio for the Improvemet of Livig ad Workig Coditios, 2015

11 Optig out of the Europea Workig Time Directive Figure 1: Use of the EWTD Article 22 opt-out by the EU Member States Geeralised use Limited use Not allowed Source: Eurofoud s Network of Europea Correspodets; iformatio as of Jauary 2015 The followig sectios describe the opt-out provisios i all the EU Member States as of the begiig of A table summarisig the mai elemets of those atioal provisios ca be foud i Aex 2. Opt-out provisios Geeral use of the opt-out The five EU Member States that allow the use of the opt-out, irrespective of the sector of activity or occupatio, are Bulgaria, Cyprus, Estoia, Malta ad the Uited Kigdom. The mai requiremets for the applicatio of the idividual opt-outs i these coutries follow very closely the coditios defied i poits a) to e) of Article 22 of the EWTD (see text box above) ad are described briefly here. Europea Foudatio for the Improvemet of Livig ad Workig Coditios,

12 Optig out of the Europea Workig Time Directive Bulgaria harmoised its labour legislatio before etry ito the EU i The traspositio of the EWTD was oe of the major chages adopted at the time. The coutry s stace regardig this traspositio was established after discussios i a tripartite workig group. The mai motivatio of the govermet (which was preserved durig the subsequet discussios cocerig the evetual revisio of the directive i 2007, 2008 ad 2009) is that the opt-out allows workers to work more hours if they wish to further their ecoomic iterests. Article 113 of the Labour Code stipulates that the maximum hours of work uder a employmet cotract for additioal work, alog with the duratio of workig time i the mai employmet relatioship caot be more tha 40 hours per week for workers uder 18 years of age ad 48 hours per week for workers over 18. Where there is writte coset, workers ca work more tha 48 hours (or 40 hours for those uder 18). I all cases, the total hours of work may ot ifrige the uiterrupted miimum daily ad weekly rest periods established by the Labour Code. I Cyprus, Article 7.4 of Law 63(I)/2002 allows for use of the idividual opt-out but subject to the geeral priciples of the protectio of health ad safety of workers. I particular, it states that ay of the first three sectios of Article 7 maximum workig week, mode of calculatio, ad referece period which are subject to the geeral priciples of the protectio of health ad safety of workers, may ot apply uder the followig five coditios: the worker cosets to perform the work cocered; the worker is ot subjected to ay adverse cosequeces by his/her employer if he/she does ot agree to perform such work; the employer keeps up-to-date records of all workers egaged i such work; the records are placed at the disposal of the competet authority (Departmet of Labour Relatios of the Miistry of Labour, Welfare ad Social Isurace) which may prohibit or restrict the possibility of exceedig the maximum weekly workig hours for reasos of the health ad/or safety of the workers; the employer provides the competet authority at its request with iformatio regardig the coset of the workers. I relatio to a worker s coset, the law does ot explicitly state that there should be writte coset. However, accordig to the provisios of Article 20d of the same regulatio, ispectors ca have access to the records that are related to the orgaisatio of workig time at ay time ad ca ask for ay relevat proof. It ca be assumed that records mea those i writte form. I Estoia, accordig to the Employmet Cotracts Act (2009) Article 46, it is possible to opt out ad ot apply the limit o workig time. I geeral, workig time shall ot exceed o average 48 hours per week over a calculatio period of up to four moths. However, a employer ad employee may agree o loger workig hours tha the 48 hours. The workig time must ot exceed 52 hours o average per week over a referece period of four moths. The same regulatio establishes that the agreemet must ot be detrimetal to the employee s health ad safety. The employee may cacel the agreemet at ay time, otifyig the employer two weeks i advace. A employee has the right to refuse to work overtime o the basis of this agreemet, ad the labour ispectorate has the right to prohibit or limit overtime work if the employer fails to fulfil the coditios, icludig if the agreemet is detrimetal to the employee s health ad safety. The employer shall keep separate accouts of employees workig o the basis of this agreemet ad submit these to the labour ispector ad the employees represetatives at their request. I Malta, there is provisio to exceed the 48-hour weekly workig limit. Regulatio 20 of the Orgaisatio of Workig Time Regulatios (2003) states that o worker shall be required to work more tha forty eight hours over a seve-day period uless the employer has first obtaied the worker s agreemet to perform such work. The regulatio covers 6 Europea Foudatio for the Improvemet of Livig ad Workig Coditios, 2015

13 Optig out of the Europea Workig Time Directive the whole ecoomy, applyig to all workers i all sectors of activity. It states that employees who do ot agree to perform such work shall ot be subjected to ay disadvatage by the employers. The employer is obliged to keep updated records of workers workig more tha 48 hours ad to place such records at the disposal of the Director of the Departmet for Idustrial ad Employmet Relatios. The director has the right to prohibit or restrict the possibility of exceedig the maximum weekly workig hours for reasos of workers health ad safety. There is cosesus amog the major political parties ad social parters i Malta that the opt-out clause i the EWTD should be retaied. I the Uited Kigdom, workers aged 18 ad over ca choose to opt out of the 48-hour week, either idefiitely or for a limited period. The opt-out must be volutary ad i writig. It caot be cotaied i a agreemet which covers the whole workforce. Employers ca ask idividual workers if they would be willig to sig the opt-out. Workers caot be dismissed or treated ufairly (for example, refused promotio) for refusig to sig a opt-out agreemet. A worker ca cacel their opt-out agreemet wheever they wat (givig their employer at least seve days otice), eve if it is part of their employmet cotract (UK Govermet, 2015a). For some specific types of workers the opt-out caot be ivoked. Employers must ot allow the followig staff to opt out: workers o ships or boats; airlie staff; workers i the road trasport idustry, such as delivery drivers (except for drivers of vehicles uder 3.5 tos usig Great Britai s domestic drivers hours rules (UK Govermet, 2015b); other staff who travel i ad operate vehicles covered by EU rules o drivers hours, such as bus coductors; security guards o vehicles carryig high-value goods. Restricted use of the opt-out The coutries where the use of the opt-out is (or was) possible oly i certai sectors or for certai occupatios are Belgium, the Czech Republic, Frace, Germay, Hugary, Latvia, the Netherlads, Polad, Slovakia, Sloveia ad Spai. The commo feature i these coutries is that most of the opt-out provisios cover oly the health ad/or emergecy sectors (or typical occupatios of those sectors, such as doctors, urses ad firefighters) or are related to jobs demadig a sigificat amout of o-call time. The situatio i most of these coutries has ot chaged sigificatly i recet years. The Czech Republic ad Spai are the exceptios. The provisios for the idividual opt-out i these two coutries were provisioal ad have expired i the meatime. The mai provisios ad circumstaces uder which the idividual opt-outs ca (or could, i the case of the Czech Republic ad Spai) be resorted to i this group of Member States are described briefly below. I 2009, the Europea Commissio criticised Belgium for the fact that medical professioals were excluded from the workig time provisios i the labour law. I respose, the Law of 12 December 2010 was passed. It regulates the workig time of doctors, detists, veteriarias, cadidate doctors i traiig, cadidate traiee detists ad studet iters. For these groups there is ow a maximum workig time of 48 hours per week o average over a period of 13 weeks. The workig hours i ay give week caot exceed 60 hours. Workers i the above-metioed occupatios should also ever work more tha 24 cosecutive hours. Exceptios are allowed oly i cases of force majeure. If a employee has worked more tha 12 cosecutive hours, he or she must rest at least 12 hours before returig to work. Europea Foudatio for the Improvemet of Livig ad Workig Coditios,

14 Optig out of the Europea Workig Time Directive The very specific possibility of idividual optig-out i the Belgia cotext is that employers may coclude idividual agreemets with workers to perform duties outside the 48-hour maximum workig week, o a volutary basis. The writte agreemet must iclude the wage premium for the additioal services, which caot exceed 12 hours per week. The employers are obliged to keep records of these agreemets for five years i the premises ad make them available to the labour ispectorate. The employee may refuse at ay time to take o the additioal work ad caot be treated detrimetally for doig so. I the public sector, a comparable rulig exists for employees of emergecy posts (medical staff ad firefighters). The idividual opt-out is possible for a maximum 10 hours above the 38-hour maximum ad i very particular cases with a possible maximum of 52 hours. I the Czech Republic, the derogatio from the EWTD as per its Article 22 was applied temporarily, from October 2008 to December 2013, to medical staff i the healthcare sector. A extesio of the 48-hour weekly workig limit was allowed by Article 93a of the Labour Code (Act No. 262/2006, as ameded by Act No. 294/2008), which stipulated that employees i healthcare facilities with cotiuous operatio could agree with employers o a higher umber of overtime hours tha what would correspod to the ormal statutory limit. The reaso for the derogatio was the shortage of medical staff. I additio to the coditios that result from Article 22 of the EWTD, the Labour Code stipulated the maximum umber of overtime hours above the statutory weekly limit, that is o average 8 hours per week (12 hours per week i the case of emergecy medical services) withi a compesatory period of 26 successive weeks, uless a collective agreemet exteded this period to the maximum of 52 successive weeks. The agreemet betwee a employer ad a employee o the extesio of overtime hours had to be cocluded i writig, could ot be cocluded durig the first 12 weeks from the date of commecemet of the employmet relatioship, could ot be agreed for a period loger tha 52 cosecutive weeks, ad could be cacelled with immediate effect, eve without statig ay reaso, withi a period of 12 weeks from its coclusio. The agreemet could be termiated later o ay grouds or without statig ay reaso with a otice period of two moths, uless a shorter otice period had bee agreed (the same otice period had to be agreed both for the employer ad for the employee). The temporary derogatio was ot exteded. The Miistry of Health formally forbade all illegal practices by esurig that the legal framework correspods to the Europea legislatio. The iformatio available regardig Frace is rather scarce. The opt-out has bee implemeted i a very limited fashio ad through scattered pieces of legislatio (the Commissio workig paper of 2010 refers to Decree No of 6 December 2002 ad followig oes, ad the Decree of 30 April 2003). The curret situatio allows excess hours to be worked o a volutary basis by doctors ad pharmacists i public health services, but there is ot always a legal requiremet of idividual coset i advace. I Germay, accordig to the Workig Time Act (Arbeitszeitgesetz), 8 hours of work per day are the stadard. The act, however, allows workig hours to be temporarily exteded up to a maximum of 10 hours a day, if withi 6 moths, or 24 weeks, a average of 8 hours a day is ot exceeded. This possibility existed eve before the EWTD came ito force; there has bee o recet chage to the Workig Time Act i this respect. The opt-out is subject to regulatio by collective agreemet or works coucil agreemet or, i the absece of a agreemet, to approval by the labour ispectorate. That meas that the first coditio for such deviatios is the existece of a collective agreemet that allows them i priciple, ad the secod coditio is the idividual coset of the employee. There are various collective agreemets i the public sector ad most otably i healthcare which provide for deviatios uder the coditios described above. Usually, a upper limit is set above which o deviatio is possible. For example, the geeral framework agreemet for the public service special sectio for hospitals (Tarifvertrag öffetlicher Diest, TVöD Besoderer Teil Krakehäuser, BT-K) allows a maximum workig week for hospital doctors of 54 ad 58 hours, respectively, depedig o the workload ivolved i their positio. 8 Europea Foudatio for the Improvemet of Livig ad Workig Coditios, 2015

15 Optig out of the Europea Workig Time Directive Public civil servats (Beamte) are ot covered by the Workig Time Act but by the respective laws regulatig their workig time (Arbeitszeitverordug) at federal (Bud) or the federal state level (Läder). The provisios cocerig deviatios for civil servats with a substatial amout of o-call work, however, are similar to the Workig Time Act. The idividual coset of the civil servat is equally imperative ad there is also a upper limit which, for example, at federal level, is set at 54 hours per week. As most firefighters are public civil servats they also fall uder these provisios. I Hugary, the fuctioig of the healthcare system has log bee hampered by a shortage of qualified persoel. Cosequetly, the govermet ad the parliamet decided to derogate from the 48-hour weekly workig time limit of the EWTD as log ago as The modificatios have cofirmed the opt-out clauses while fie-tuig the legislatio s wordig to alig it fully with the EWTD, the relevat Europea judgemets ad the ew Labour Code (Act 1 of 2012). Healthcare workers may udertake extra work above the ormal weekly 40 hours or maximum average of 48 hours. This volutary extra work ca take the form of o-call time or ordiary overtime. Durig the o-call time health workers oly perform duties which are ecessary for the smooth fuctioig of the healthcare istitutios or caot be delayed util the begiig of the regular workig hours the followig day. The o-call time is cosidered as workig time i other words, both the time of the actual medical activities ad the time whe the worker is ready ad prepared to udertake these activities wheever requested. Durig ordiary overtime, which is much less frequetly used i the healthcare sector, health workers perform the same medical activities as durig ormal workig hours. Extra work should ot exceed 12 hours per week o average, or 24 hours per week, if the extra work covers exclusively performig o-call medical duties durig o-call time. I practice, this meas that ormal workig hours plus o-call time plus additioal ordiary overtime together caot exceed 60 hours a week, or 72 hours if the worker performs exclusively o-call duties durig o-call time. Medical o-call time ad ordiary overtime together should ot exceed 416 hours a year (takig ito cosideratio 40 workig hours per week as the basis). The requiremets for the use of the opt-out i the Hugaria healthcare sector follow those set i Article 22 of the EWTD, icludig that: the healthcare workers caot be forced to udertake extra work; worker ad employer have to coclude a writte agreemet for the extra work; the agreemet ca be cocluded for a idefiite period; the employer has to keep records of the extra work performed; the healthcare state admiistratio may prohibit or restrict work above 48 hours per week due to professioal reasos. I Latvia, the Medical Treatmet law, adopted o 12 Jue 1997, was ameded o 18 April 2009 to set forth specific regulatios regardig workig time extesio for medical practitioers. The latest amedmets, o 21 Jue 2012, specify that these orms are applicable also to o-medical emergecy service team members. The opt-out is applied to esure geeral access to medical treatmet, upo the iitiative of a medical practitioer or a medical treatmet istitutio. The law determies that the orms of employmet relatios are applicable to a medical practitioer isofar as it is ot specified otherwise i the Medical Treatmet law. This law allows the extesio of ormal workig hours of a medical practitioer as log as they do ot exceed 60 hours per week ad 240 hours per moth ad the geeral priciples of work safety ad health protectio are observed. Workers who do ot agree with a extesio of the ormal workig hours Europea Foudatio for the Improvemet of Livig ad Workig Coditios,

16 Optig out of the Europea Workig Time Directive caot be pealised or ufavourably treated. The istitutio cocered must receive writte coset for the extesio of workig hours from the workers, must keep records of these cases ad must make all the related iformatio available to the labour ispectorate. I the Netherlads, the law ameded i 2005 allows workig beyod the legal maximum of 48 hours per week i jobs for which o-call time is importat, such as health service workers or firefighters, by usig the opt-out. Its use must comply with the followig requiremets: oly applicable to workers whose jobs ivolve o-call time; required for cotiuity ad quality of service provisio; caot be avoided by a differet orgaisatio of work; requires a collective agreemet ad the idividual coset of the worker cocered; applicable oly where immediate compesatory rest is provided for ay missed daily or weekly rests; maximum 60 hours per week icludig o-call time, averaged over 26 weeks. I Polad, accordig to Article 96 of the Act o Medical Activities of 15 April 2011 (Ustawa o działalosci lecziczej), workers i medical occupatios ca agree, i writig, to work more tha 48 hours per week. Polish legislatio follows the provisios of Article 22(1) of the EWTD as employers are ot allowed to discrimiate agaist employees for ot agreeig to opt out (Article 96 poit 4). Work which exceeds 48 hours per week must be remuerated i the same way as overtime (Article 96 poit 7 of the Act o medical activities ad Article 151(1) of the Labour Code). I Slovakia, the opt-out is possible for healthcare workers. Accordig to the Labour Code, where the EWTD is implemeted, weekly workig hours may be loger tha 48 hours for employees i the healthcare sector. Overtime work for a healthcare employee may ot exceed o average 16 hours per weeks i a period of at most four cosecutive moths (if the employer has ot agreed a loger period with the employee represetatives; i ay case, at most 12 cosecutive moths). This implies that the maximum weekly workig time of these employees ca be 56 hours. Nevertheless, the total overtime work of healthcare workers must ot exceed the allowed maximum 400 hours i a year. I Sloveia, the opt-out is oly used i the health sector. Article 41b of the Medical Services Act 2006 ad Article 52 of the Health Services Act 2004 provide that a worker (icludig medical workers i hospitals or health cetres) may work loger tha the usual limit (48 hours per week, averaged over a referece period), if the employer has first obtaied the worker s agreemet. The protective coditios from Article 22(1) (a) to (e) of the EWTD appear to have bee correctly trasposed. The Health Services Act also specifies that the opt-out agreemet should idicate the umber of weekly overtime hours, ad the period for which the opt-out remais valid. The opt-out is uderstood to be widely used withi the Sloveia health sector, although o statistics are available. There have bee o recet legislative chages regardig regulatio of overtime work i the sector. The Framework Statute of statutory staff i health services (Law No. 55/2003) itroduced a limited opt-out i Spai. It applied oly to doctors ad urses i public health services, ad oly where ecessary to esure that o-call services could be provided. By request of a health cetre or hospital, a worker could agree to work i excess of the maximum 48 hours i a week. The agreemet should have bee a freely give idividual coset i writig of the worker cocered. A opted-out worker could ot exceed the ormal 48-hour limit by more tha 150 hours i total per year (equivalet to a total workig time of slightly over 51 hours per week, if averaged over 12 moths). This provisio was trasitioal as it was destied to expire 10 years later, i 2013 (as idicated i the sixth trasitory provisio of the Law). 10 Europea Foudatio for the Improvemet of Livig ad Workig Coditios, 2015

17 Optig out of the Europea Workig Time Directive Sice December 2013, with the expiry of the trasitioal provisio, the opt-out clause is o loger i force. This relatively recet chage touches o a cotroversial issue amog health professioals. The fact that the public health system is regulated by autoomous commuities (at a regioal level) as well as the orgaisatioal complexity of health cetres cocerig shifts ad o-call work make it eve more difficult to adapt to these ew workig time coditios (Gozález Sáchez, 2014). I May 2014, the Medical Trade Uio of Seville (Sidicato Médico de Sevilla) claimed that there was still a lack of regulatory defiitio regardig the workig coditios of doctors workig i reachable o-call ( guardias localizadas ) (Sidicato Médico de Sevilla, 2014). Opt-out ot allowed Austria, Demark, Filad, Greece, Irelad, Italy, Lithuaia, Luxembourg, Portugal, Romaia ad Swede are the coutries which did ot avail of the possibility to opt out from the weekly maximum of 48 hours. Croatia, which joied the EU i 2013, is ow also part of the group. However, i practice, Austria could ow be omitted from this group of Member States because of the itroductio, i 2015, of opt-outs for hospital doctors. A represetative survey commissioed by the Austria Medical Chamber, composed of 2,000 telephoe iterviews with hospital doctors ad carried out i 2013 by the Istitute for Empirical Social Studies, shows that the average weekly workig time decreased from 59 hours i 2006 to 54 hours i A majority of respodets stated that they would like to have a average weekly workig time of 42 hours. Moreover, 76% argued for a compulsory decrease of the limit of a sigle workig period dow to 25 cosecutive hours. The Hospital Workig Time Act (Krakeastalte Arbeitszeit Gesetz, KA-AZG), i place sice 1 Jauary 2015, temporarily itroduced the opt-out for doctors workig i hospitals i Austria. It implemets a idividual opt-out accompaied by a step-by-step reductio of the maximum workig week to 48 hours util Util the ed of 2017 the opt-out is limited by a maximum of 60 hours a week, ad from 2018 to mid-2021 the opt-out clause will be reduced to a maximum of 55 hours a week. From mid-2021 there will be o opt-out clause ay loger. Eve though the workig time of hospital doctors ca the still amout to 72 hours i particular weeks, the average calculated over a four-moth period has to be 48 hours. The referece period ca be exteded up to 52 weeks but this would require a works agreemet at hospital level. The maximum duratio of oe workig period will also be decreased i stages from 32 or 49 (o weeked iclusive stad-by) dow to 25 hours. Extet of use of opt-out Now that the existig provisios for the idividual opt-out i the Member States have bee briefly described, it is importat to assess to what extet they have bee used i practice. Accordig to Article 22, paragraph 1, of the EWTD, the employers are supposed to keep up-to-date records of all workers who carry out such work ad place them at the disposal of the competet authorities. This meas that, i priciple, it should be relatively simple to collect iformatio about the umber ad mai characteristics of the opt-out cases i each Member State. However, this is ot the case. It is extremely difficult to fid ay publicly available data related to opt-outs i most Member States with such provisios. The most otable exceptio is perhaps the Uited Kigdom, where data from the 2011 Workplace Employmet Relatios Study (WERS) outlies the use of the opt-out practice i the UK (BIS, 2013). I 32.4% of the surveyed workplaces there were at least some workers who had siged a opt-out agreemet. I 15.6% of workplaces all employees had siged a opt-out agreemet. The highest rates are foud i costructio, other busiess services, ad trasport ad commuicatio. I additio to data o the use of the opt-out, WERS also reports that some 11.5% of all employees surveyed usually worked more tha 48 hours per week, with the highest rates i trasport ad commuicatio, costructio ad educatio. Europea Foudatio for the Improvemet of Livig ad Workig Coditios,

18 Optig out of the Europea Workig Time Directive A report published by the UK Departmet for Busiess, Iovatio ad Skills (BIS) i December 2014 ito the impact of the EWTD o the UK labour market summarised a rage of evidece relatig to the workig time regulatios i the UK (BIS, 2014). It otes that Work Life Balace Employer Surveys ad other surveys idicate lower use of the opt-out tha reported i WERS, though it is clear that may UK busiesses use the opt-out. Data from Eurofoud s fifth Europea Workig Coditios Survey may shed some light o a potetial relatioship betwee the existece of opt-out provisios ad the share of workers i the Member States declarig that they work more tha 48 hours a week (Eurofoud, 2012). Figure 2 depicts the share i each of the Member States, which are grouped by type of opt-out provisios, but the result is rather icoclusive. The media of the group of coutries without the optout is, i fact, slightly lower tha the other groups where provisios for optig out exist. Nevertheless, it is i Romaia ad Greece, where the opt-out is ot allowed, that the shares of workers reportig that they work over 48 hours per week are also higher tha everywhere else. Figure 2: Share of workers reportig that they usually work more tha 48 hours per week (icludig mai ad secod job), EU Member States, % 40% 35% 30% 25% 20% Geeralised use media 16% Limited use media 17% Not allowed media 14% 15% 10% 5% 0% Source: Fifth Europea Workig Coditios Survey A potetial relatioship betwee opt-out provisios ad a culture of log workig hours does ot emerge here, which seems to idicate that the roots of log workig hours should perhaps be ivestigated withi the cotext of work ad workig time orgaisatio at the workplace level ad eve atioal traditios ad customs, for example. It is iterestig to ote that, accordig to Eurofoud research o the istitutioal framework ifluecig how workig time is regulated, i the coutries with geeralised use of the opt-out the egotiatios at compay ad idividual levels are, beyod the atioal legislatio, the most importat determiig factor for establishig workers weekly workig time (Eurofoud, forthcomig). I the Uited Kigdom, at least, this meas weaker or o-existet ifrastructures for collective bargaiig ad therefore reduced bargaiig power for the idividual workers i relatio to their workig time (Barard et al, 2004). 12 Europea Foudatio for the Improvemet of Livig ad Workig Coditios, 2015

19 Optig out of the Europea Workig Time Directive Compulsio ad compliace The lack of iformatio about the extet ad characteristics of use of the opt-out ad the doubts about where the boudary lies should be draw prompts additioal questios about the level of compliace with the established rules. Some of these questios relate to the coditios uder which the agreemets to opt out are siged. It is ot certai that all those sigig the agreemets to opt out are doig so of their complete free will. Accordig to a 2004 report by the BIS, i the Uited Kigdom, there have bee claims of workers beig pressured ito sigig the opt-out. The report refers to some examples. Evidece provided by the Trades Uio Cogress (TUC) to the House of Lords EU Committee i 2004 suggested that approximately a quarter of those workig log hours faced some kid of compulsio to sig the opt-out, although the evidece was based o some quite limited pollig. Some situatios of employers pressurig idividuals to opt out have bee cited i Cambridge Uiversity research carried out for the Europea Commissio; the case studies i the bakig sector showed i some istaces it was compulsory for workers to sig the opt-out as it took the form of a clause of the employmet cotract offered to them. A 2001 survey of workers experieces of the Workig Time Regulatios foud that 23 per cet of log hours workers who had ot siged a opt-out said they had experieced employer pressure to work loger, aroud half of whom thought it was uderstood as a coditio of workig at their workplace. A 2004 survey by the Charted Istitute of Persoel ad Developmet (CIPD) foud that 21% of those who had siged the opt-out felt a certai degree of employer compulsio, although this was based o a small sample (BIS, 2014). The labour ispectorate i Sloveia i its Aual Report for 2013 showed that the share of overtime work is icreasig to a sigificatly greater extet tha allowed by labour legislatio. The mai impacts of the derogatios from the maximum 48 weekly hours are violatios regardig recordig, assigmet ad redistributio of overtime work at the last miute without writte istructios. Some employees therefore work 50 or more hours of overtime per moth. The Trade Uio of Metal ad Electrical Idustry (SKEI) has also reported o the practice of some compaies where employees work at least 56 hours a week, throughout the year, with the employers ofte failig to pay them for overtime work. There is o evidece of whether similar situatios are takig place i other Member States. I 2007, the Ecoomic ad Scietific Policy Departmet of the Europea Parliamet drew attetio to the fact that all the Member States ifriged the EWTD i oe way or aother i relatio to the legal provisios related to o-call work, icludig referece periods, rest periods ad multiple cotracts. At the time, the departmet suggested a more detailed aalysis of the legislative situatios i the Member States regardig the implemetatio of the EWTD (Europea Parliamet, 2007). Similarly, the curret lack of iformatio about the level of compliace with the rules for use of the opt-out jeopardises a well-iformed debate. I fact, it also raises questios about the adequacy of resources devoted to keepig track of ad cotrollig the use of this importat exceptio to the EWTD. Debate o the opt-out ad related matters I geeral, there are opposig perspectives i relatio to the use of the opt-out ad, i particular, to the idividual agreemet betwee employer ad worker. O the oe had, some actors isist that employers eed a degree of flexibility while idividual workers should have a choice o their maximum workig hours, ad the opt-out allows both. O the other had, some stakeholders see the idividual opt-out as udermiig the basic priciple of the EWTD, the purpose of which is to protect the health ad safety of workers ad prevet the exploitatio of idividual workers uequal bargaiig positio. This sectio briefly describes the mai recet discussios ad debates about the opt-out ad related Europea Foudatio for the Improvemet of Livig ad Workig Coditios,

20 Optig out of the Europea Workig Time Directive subjects. I fact, as will be show, ofte the discussios are about log workig hours ad ot specifically about optig out of the EWTD. Debates over the opt-out Accordig to the iformatio provided by Eurofoud s Network of Europea Correspodets, some of the 12 coutries that do ot allow idividual opt-outs from the regulatios o the maximum weekly workig time have ogoig issues or debates about the opt-out. I Croatia, the opt-out has bee touched o i the cotext of wider discussios about reforms of atioal labour legislatio. I the Czech Republic, Frace ad Spai, discussios are takig place aroud the specificities of the health sector. Greece, Irelad ad Italy have bee referred by the Europea Commissio to the ECJ for ot complyig with the EU rules o workig time. Opt-outs i the framework of labour legislatio overhaul I 2014, the Croatia govermet opeed egotiatios with the social parters o a ew labour law. I relatio to workig time, the proposal was to apply a referece period of six moths over which the average workig time (icludig overtime) must ot exceed 48 hours a week, with a weekly maximum of 56 hours. I additio, this referece period could be exteded up to 12 moths i collective agreemets. The govermet also cosidered the possibility of regulatig questios such as the redistributio of workig hours, shifts ad overtime by collective agreemets ad employmet rules depedig o the specifics of certai idustries ad professios. The possibility to agree i writig to differet arragemets of workig time (opt-out) was also cosidered i these egotiatios. The Croatia employers represetative orgaisatios supported the govermet s push towards what was cosidered a greater liberalisatio of workig time. By cotrast, the trade uios firmly opposed the idea of liberalisatio of workig hours ad uderlied that the provisios o workig time are key provisios of the labour law i terms of harmoisatio of obligatios with family life ad work. The workers represetatives poited out the eed to look at both sides of the employmet relatioship ad ot deem it a exclusive right of the employers to orgaise the work oly accordig to their eeds. Optig out i the health sector If the opt-out is used by istitutios which have to fid solutios to overcome staff shortages ad guaratee a cotiuous provisio of health services, the risks associated with workig log hours ca spill over from the medical staff to patiets. Patiets ca suffer because of iadequate treatmet due to mistakes ad poor judgemet by staff sufferig from fatigue as a result of beig asked to work more hours. I the Czech Republic, debates over the derogatios from the EWTD durig 2014 focused o the expiry of the derogatio i the healthcare sector as of 31 December The first moths of 2014 showed that healthcare facilities were ot prepared for the chage i the orgaisatio of workig hours, i particular due to a lack of doctors ad a lack of budget for ew positios. There is evidece that the provisio of permaet healthcare has ot bee possible without the use of cotracts for services (agreemets to complete a task or perform some work which do ot create a employmet relatioship). Both the Czech Medical Chamber (ČLK) ad healthcare trade uios (i particular the Czech Doctors Trade Uio, LOK SČL) criticised this practice, which they believe is i cotradictio with both Czech ad Europea legislatio, ad asked employers to comply with the law. Amog other objectios, they wared of a high risk of mistakes made by overworked doctors ad called for greater support for doctors, improved medical educatio ad higher salaries. Both trade uios ad employers i the sector criticised the govermet ad especially the Miistry of Health for a loose approach ad reproved them for ot havig looked for solutios while the derogatio was still valid. The Miistry of Health, Miistry of Labour ad Social Affairs (MoLSA) ad its subordiate body the Natioal Labour Ispectorate (SÚIP) have provisioally tolerated the existig practice i the absece of other solutios. The issue of 14 Europea Foudatio for the Improvemet of Livig ad Workig Coditios, 2015

21 Optig out of the Europea Workig Time Directive overtime i healthcare was, evertheless, itesively discussed throughout The ew Miister of Health Svatopluk Němeček (Czech Social Democratic Party, ČSSD) promised the social parters that he would prepare systematic measures to solve the situatio i accordace with the requiremets of trade uios ad ČLK. He said the existig practice should ot be tolerated startig from Followig cosultatio with all relevat stakeholders, the miister preseted a reform of the educatioal system i healthcare, which should cotribute to a more efficiet ad balaced use of capacities of medical staff. Amedmets of relevat legislatio will be approved durig A positio paper of the Frech aaesthetists trade uio (Sydicat Natioal des Praticies Hospitaliers Aesthésistes Réaimateurs) poited out the dagers of o-call time ad optig out of the maximum weekly workig week for both doctors ad patiets. It showed, for example, how the fatigue associated with log workig hours is likely to cause medical mistakes ad how prologed workig hours impact egatively o doctors recociliatio of workig ad private life (SNPHAR, 2004). I Spai, i March 2013, the medical trade uios had already complaied that the requiremet for a 48-hour weekly workig limit was ot beig met amog workers workig log hours o duty (for example, doctors workig 24 hours at the hospital o reachable o-call ), ad that rest times were ot beig respected either (Sidicato Médico Adaluz, 2013). This issue is especially cotroversial amog traiee doctors (or medical iter residets), as well as foresic doctors. I fact, i 2014 the Europea Commissio asked Spai to better regulate foresic doctors workig times, as the requiremets of workig limits ad rest times were ot beig met. Optig out to improve work life balace? Although ot a member of the EU, Norway is curretly havig a very iterestig public debate o optig out ad workig log hours. The govermet circulated a proposal to amed the workig time regulatios i the Workig Eviromet Act for cosultatio. The ratioale for the proposal was to, amog other thigs, make it easier for workers to have workig time arragemets adapted to their persoal eeds as related to age, sex ad circumstaces of life. The amedmets cover average calculatio of workig time, special workig time arragemets ad overtime work. Idividuals will be give a right to eter a agreemet with their employer for the purpose of average calculatio of workig time icreasig the daily workig time from 9 to 10 hours a day with a weekly limit of 48 hours. This is the oly amedmet as regards idividual agreemets, as the rest relates to derogatios made by collective agreemets or by the labour ispectorate. However, the proposal has led to a debate o dagers of log workig hours ad the eed or wish for flexibility amog employers ad workers. All trade uios argued agaist the proposal, ad referred to occupatioal doctors advice agaist log workig hours. The Norwegia Cofederatio of Trade Uios (LO) argued that this kid of agreemet should be laid dow by those parties with kowledge of the work i questio, the idustry, the protectio eeds ad risk of ijuries: workers, employers ad their represetative orgaisatios. The proposal was warmly welcomed by the employers, who argue that it will make it easier for them to adapt the workforce to what is actually eeded, for istace for compaies that face great variatio i productio levels. The Cofederatio of Norwegia Eterprise (NHO) says that icreased flexibility could beefit the workers as well, by allowig them loger periods off work. This will for istace beefit foreig workers who wat to travel to their home coutry whe they have time off. The Norwegia Associatio of Local ad Regioal Authorities (KS) believes the amedmet that makes it easier for the parties at compay level to eter ito agreemets could reduce some of the challeges the muicipalities have with part-time work, as the ew regulatios would make it easier to get people to work durig weekeds. The labour ispectorate reacted egatively to the amedmet. I the commets to the cosultatio the ispectorate stressed that may compaies do ot make accurate assessmets of the risk of the workig time arragemets practised. The ispectorate also poited at the problems related to idividual agreemets, ad questioed whether such agreemets Europea Foudatio for the Improvemet of Livig ad Workig Coditios,

22 Optig out of the Europea Workig Time Directive ca be said to be volutary. Furthermore, it commeted that the risk of poor judgemet amog workers o log hours icreases more tha proportioally with the icrease i umber of hours worked. This emphasises that it is ot oly the total worked hours, but also how the workig hours are arraged that matters, ad that the proposal will lead to egative health ad safety cosequeces. Debates over log workig hours I may istaces, the debate is ot specifically about the possibility of optig out of the EWTD but rather about log workig hours. These debates are equally importat because if log workig hours ca be defied as workig 48 hours a week or more (Eurofoud, 2012), the optig out of the EWTD is syoymous with acceptig log workig weeks. Some of the most iterestig recet examples of icidets or debates about log workig hours across the EU are described below. Breaches of the EWTD I recet years, the Europea Commissio has take a umber of decisios relatig to breaches of the EWTD. I November 2012, the Commissio asked Belgium to take measures to correctly apply the EWTD to teachers i residetial schools. The overight o-call time at the workplace worked by teachers i residetial schools was ot couted fully as workig time (a overight shift of eight hours was couted as three hours of actual workig time). The teachers could be obliged to perform up to four overight duties per week ad ight duty could be further combied with a daily shift, potetially leadig to breaches of the EWTD provisios. I September 2013, Frace was asked by the Commissio to respect the rights of hospital doctors to a 48-hour average workig week ad to miimum rest periods after workig extra hours at ight. The doctors could be required to work over the 48-hour limit i several situatios without their coset ad there were o guaratees to protect the doctors from beig pealised if they refused to work the excess hours. The rules for measurig workig time of hospital doctors were also ot very clear, meaig that i practice doctors were required to work excessive hours. At the time, practices i public hospitals meat that doctors who were called out at ight to deal with emergecies after their ormal workig hours sometimes could ot take adequate rest before havig to retur to work. I Jauary 2014, the Commissio asked Spai to respect the rights of the Spaish Civil Guard (Guardia Civil) to miimum rest periods ad the 48-hour limit o average weekly workig time, as required by the EWTD. Uder the curret law, certai categories of Civil Guard workers are ot etitled to those rights (i particular, workers with commad, maagig, teachig ad ivestigative fuctios) ad are vulerable to workig excessive hours without adequate rest periods. Accordig to the EWTD, Member States may exclude idividuals with autoomous decisiotakig powers from the 48-hour limit ad the miimum rest periods. However, the majority of Civil Guard workers do ot have geuie ad effective autoomy over both the amout ad the orgaisatio of their workig time, ad therefore this derogatio does ot apply to them. There have, however, also bee some recet cases i which the Member States were referred to the ECJ. O 20 November 2013, the Commissio referred Irelad to the ECJ for breachig the EWTD i its treatmet of ocosultat hospital doctors (NCHDs). I its statemet, the Commissio metioed that [t]here are still umerous cases where juior doctors are regularly required to work cotiuous 36-hour shifts, to work over 100 hours i a sigle week ad hours per week o average, ad to cotiue workig without adequate breaks for rest or sleep. Respodig to the referral, the Irish Medical Orgaisatio (IMO), which represets NCHDs, said that it had agreed a roadmap with the Health Service Executive (HSE) o the edig of the archaic practice of overworkig NCHDs, but 16 Europea Foudatio for the Improvemet of Livig ad Workig Coditios, 2015

23 Optig out of the Europea Workig Time Directive retaied some degree of scepticism about the willigess of the HSE to eforce that agreemet. Therefore, this EU move will help keep the pressure o the authorities to meet their obligatios. The HSE uderlied that ogoig progress had bee made i relatio to achievig compliace with the provisios of the EWTD i respect of NCHDs. Data collected by the HSE show that average workig hours for NCHDs have falle sigificatly i the past six years. I 2009, the average was 60 hours per week; this had reduced to 54 hours per week i 2012 ad to 51.1 hours by the fourth quarter of Also accordig to the HSE, by September 2013, less tha 3% of NCHDs were workig more tha 68 hours i a week. Greece ad Italy have also bee referred by the Commissio to the ECJ for ot complyig with the EU rules o limits to workig time for doctors i public health services: i November 2013, Greece was referred for failig to esure that i practice these doctors work o more tha 48 hours per week o average, icludig ay overtime; i February 2014, Italy was referred because its law deprives doctors of their right to a limit o weekly workig hours ad to miimum daily rest periods. Accordig to estimates by doctors represetatives, icludig the Greek Federatio of Hospital Doctors (OENGE), doctors i public hospitals work more tha 64 hours o a weekly basis ad i some cases more tha 90 hours, hece edagerig the health ad safety of both doctors ad their patiets. OENGE, as well as various local doctors uios, has preseted several cases of circumvetig the legal workig time limit before courts ad the Natioal Supreme Court (Court of Auditors) had repeatedly issued relatively ufavourable reports about the situatio. As a cosequece, the Commissio referred Greece to the ECJ (Europea Commissio, 2013). Italy was referred to the ECJ maily because several key rights cotaied i the Workig Time Directive, such as the 48-hour limit to average weekly workig time ad miimum daily rest periods of 11 cosecutive hours, do ot apply to maagers operatig withi the Natioal Health Service. The Directive allows Member States to exclude maagig executives or other persos with autoomous decisio-takig powers from these rights. However, doctors workig i the Italia public health services are formally classified as maagers, without ecessarily ejoyig maagerial prerogatives or autoomy over their ow workig time (Europea Commissio, 2014). I October 2014, the Italia Chamber of Deputies adopted Law No. 161 of 30 October 2014 (the so-called Legge europea 2013-bis ), which repeals the two legislative rules that were icompatible with the EWTD. With this measure, the maximum average workig time of 48 hours, stipulated i Article 4 of the Legislative Decree No. 66/2003, will apply to all atioal health service staff brigig the situatio back i lie with EU law. The o-compliat provisios will oly be repealed i November 2015 to eable the Italia regios to reorgaise their health services to esure the provisio of essetial levels of health services. O the basis of this, the Europea Commissio has withdraw the case from the ECJ ad closed it. Natioal debates I Austria, apart from the issues related to the implemetatio of the Hospital Workig Time Act, there is a debate over the geeral possibility of prologig the maximum daily workig time from 10 to 12 hours. This is maily claimed by the employers represetative orgaisatios but the trade uios have idicated they are ot kee to discuss the possibility. The issue is part of the ogoig egotiatios betwee the social parters ad the govermet regardig a package of modificatios to the labour legislatio. Europea Foudatio for the Improvemet of Livig ad Workig Coditios,

24 Optig out of the Europea Workig Time Directive I Bulgaria, the last quarter of 2014 was marked by several protests by priso guards across the coutry. Some of their mai demads were directly related to the chage of workig hours. Shifts are curretly for 12 cosecutive hours whereas the guards wat to retur to shifts that take ito cosideratio the circadia cycles, that is the atural day cycle of light ad darkess. Priso officials also demaded higher wages ad a icreased umber of staff o each shift curretly some 15 guards for every 500 prisoers. I Germay, a joit tripartite actio brought the potetial health impacts of log workig hours to the top of the ageda. I September 2013, the Miistry of Labour, the Germa Cofederatio of Trade Uios (DGB) ad the Cofederatio of Germa Employers Associatios (BDA) issued a joit declaratio i which the three sides stressed the eed to address ot oly physical but also psychological risks at work. This icluded a commitmet to address health problems related to log workig hours. O 4 December 2014, Reier Hoffma, Chair of the DGB, alog with Jörg Hofma, Deputy Chair of the Germa Metalworkers Uio (IG Metall) ad Michael Vassiliadis, Chair of the Miig, Chemicals ad Eergy Idustrial Uio (IG BCE) preseted the so-called DGB-Idex o decet work, a aual employee survey o workig coditios. Oe of the fidigs was that 62% of employees said they worked more tha 40 hours a week. The three uio represetatives stressed that log workig hours is cosidered a serious problem ad that i particular older workers eeded optios to reduce workig time i order to safely reach the regular retiremet age. I Hugary, the itroductio of a 10-hour workig day i the Prime Miister s Office i 2014 triggered a lively debate about the use of the opt-out clause of the EWTD (Idex, 2014). This was cosidered ulawful by some legal experts but govermet officers say they do ot see ay legal costrait. Although, accordig to official iformatio, the staff at the Prime Miister s Office agreed to the ew work schedule ad the icrease of their workig time, the media released iformatio showig that some parets with small childre allegedly gave up their jobs because the ew workig time arragemets are ot compatible with the opeig hours of their childre s kidergartes, urseries or schools. I Lithuaia, there are also ogoig debates about extedig the workig week i the cotext of discussios betwee represetatives of employers, trade uios ad policymakers about the liberalisatio of labour relatios. Employers are callig for more flexible labour relatios, icludig more flexible settig of workig hours (i particular, overtime), whereas trade uio represetatives are agaist it. The discussios itesified durig 2014 with the lauchig of the project Creatio of the legal ad admiistrative model of labour relatios ad state social isurace which aims at improvig legislatio goverig employmet ad social security, icludig the Labour Code. Some cotroversy occurred whe, i the cotext of the project, proposals were made to liberalise workig time ad exted the maximum legth of the workig week. Accordig to the Labour Code, workig time i Lithuaia may ot exceed 40 hours per week, ad a daily work period must ot exceed 8 workig hours. I Spai, the mai recet debates cocerig the EWTD affect the Civil Guard. The Europea Commissio cosidered that the Spaish Geeral Order (OG 4/2010) which regulates the Civil Guard workig coditios is icompatible with the EWTD. Some aspects related to workig times, rest times, amog others, were ot clearly specified, ad there were too may refereces to the eeds of the job or the requiremets derived from job resposibilities whe establishig workig times. Curretly, egotiatios are takig place betwee the Public Admiistratio ad the Spaish Associatio of Civil Guards (AEGC). The Public Admiistratio is workig o adaptig the Geeral Order OG 4/2010 to the EWTD, but Civil Guard workers are afraid that the ew order jeopardises some of the rights that were icluded i the previous order (AEGC, 2013). I fact, i Jauary 2014, as idicated o p.16, the Europea Commissio asked the Spaish public authorities to respect the EWTD whe elaboratig the ew Geeral Order, takig ito accout workig times ad miimum rest times for Civil Guard members (particularly for some specific positios i maagemet, research ad educatio) (Europa e breve, 2014). 18 Europea Foudatio for the Improvemet of Livig ad Workig Coditios, 2015

25 Optig out of the Europea Workig Time Directive Durig 2014, the debate i Swede was focused o overtime, i particular cocerig white-collar workers ad the healthcare sector. The Swedish Cofederatio of Professioal Employees (TCO) claims that overtime is becomig icreasigly idepedet of busiess cycles ad that possible solutios to the problem of high levels of overtime iclude compesatig employees with paid leave or reducig the umber of overtime hours per year from 200 to 150. Meawhile, the Swedish Work Eviromet Authority reported the couty of Västerorrlad to the prosecutor after receivig a complait from the Swedish Medical Associatio (Läkarförbudet) cocerig doctors workig more tha 200 hours overtime aually without the couty payig compesatio to the uio. The Swedish Associatio of Local Authorities ad Regios (SKL) claimed that sice overtime was partly regulated i the collective agreemet with the Swedish Medical Associatio, the Workig Time Act was ot relevat i the case. The ivestigatio over the case agaist the coutry cotiues, with the Swedish Medical Associatio hopig that the issue will be resolved through the paymet of compesatio ad evetually through regulatio of overtime i the collective agreemet. I the Uited Kigdom, the opt-out has bee cotroversial sice the adoptio of the EWTD, ad debates about the regulatio of workig time sice the have bee domiated by the log hours issue. Various, ultimately usuccessful, attempts to amed the EWTD, icludig moves to restrict ad/or phase out the opt-out (see UK F ad UK I) have brought the debate i the UK to the fore. I its 2013 publicatio Hazards at work, the TUC uderlied that: the law that protects agaist loger workig hours is weak i the UK; kowledge ad eforcemet of the law is poor; upaid overtime is icreasigly commo i white-collar jobs; there is a culture of log hours which is expected by the employers ad accepted by the employees (TUC, 2013). Impacts of the opt-out Because there are very few data o the extet of the use of the opt-out of the EWTD, it is ot surprisig that specific research about the impact of its use, o workers ad employers, is virtually o-existet. There is little iformatio available o the importace of the opt-out for employers, but there are a cosiderable umber of studies that show a lik betwee log workig hours, particularly over prologed periods, ad egative effects such as icreased rates of accidets ad mistakes (also affectig colleagues ad customers), fallig productivity, icreased difficulties i recocilig work ad family commitmets, stress ad fatigue levels, ad short-term ad log-term health impact (Europea Commissio, 2010a). As explaied above, optig out of the EWTD uder the coditios of its Article 22(1) meas acceptig log workig hours. Therefore, research about log workig hours ca provide some very useful iformatio o what the impacts of the opt-out may be. Impact o employers ad busiess The little evidece about the importace of the opt-outs o employers ad busiess i geeral comes from Malta ad the Uited Kigdom, where the opt-out is of geeralised use. I Malta, social parters have, over the years, cosistetly argued i favour of the opt-out. Employers associatios (icludig the Malta Employers Associatio ad the Malta Chamber of Commerce, Eterprise ad Idustry) believe that the existig derogatio is essetial for Maltese eterprises as it icreases their flexibility to respod to chages i demad, thus maitaiig their competitiveess. The maufacturig, tourism, health, trasportatio ad costructio Europea Foudatio for the Improvemet of Livig ad Workig Coditios,

26 Optig out of the Europea Workig Time Directive sectors have all bee metioed as beefitig from the curret opt-out clause. Remarkably, the major trade uios i Malta (icludig the Geeral Workers Uio ad the Uio of Uited Workers Uio Haddiema Maghqudi) are also agaist the removal of the opt-out clause, a stace that is diametrically opposed to that of most other Europea trade uios. I essece, the uios coted that workers i Malta should ot have their overtime capped because of their relatively low wages. The uios believe that if workers are allowed to do as much overtime as they wat they are i a better positio to maitai their families stadard of livig. The issue of workers health ad safety appears ot to be give much importace by the social parters. The BIS report otes the importace of the opt-out for the Uited Kigdom by statig that [a] strict limit o workig i excess of 48 hours a week would affect 3.35 millio employees ad place sigificat costs o UK busiess (BIS, 2014). The report also otes that for employers the idividual opt-out is importat because a siged opt-out provides certaity, particularly whe it may be uclear which employees qualify for maagerial derogatios. The aual Cofederatio of British Idustry (CBI) employmet treds survey for 2014 reported that the opt-out is essetial for promotig a flexible labour market (CBI/Acceture, 2014). Some 72% of busiesses said its loss would have a egative impact, with the majority of these sayig the impact would be sigificat or severe. The most commo ways i which a ba o the opt-out would affect busiesses were thought to be a egative impact o employmet relatios (55%) ad reduced ability to respod to growth opportuities (47%). By cotrast, the TUC has cosistetly argued that there is o evidece that workig log hours has produced ay competitive advatage (as cited i the BIS report), ad has argued that there are health ad safety risks which follow from workig log hours (TUC, 2013). Impact o workers Eurofoud has cotributed sigificatly to the research available o the relatioship betwee log workig hours ad workers health ad well-beig. Aalysis of data from Eurofoud s fourth Europea Workig Coditios Survey (EWCS) showed that log workig hours are liked to poor workig coditios. Those who work more tha 48 hours a week are almost twice as likely to cosider that their health ad safety is at risk because of their work, ad that their job affects their health. The impact o work life balace is eve more substatial: three times as may log-hours workers report that their workig hours do ot fit their social ad family commitmets (Eurofoud, 2008 ad 2009). Aalysis of data from Eurofoud s fifth EWCS cofirmed that people who work more tha 48 hours a week report more problems i terms of work life balace ad health tha those who do ot. They are ideed four times less likely to report that they have a good work life balace. Besides health problems associated with workig log hours, people who work 48 hours or more also idicate that they are more exposed to work itesity, thik more ofte that their health ad safety is at risk because of their work ad thik less (albeit ot very much) that they might be able to do the job util they are 60. (Eurofoud, 2012) More recetly, research carried out by Eurofoud i cooperatio with the Europea Agecy for Safety ad Health at Work (EU-OSHA) has show that [i] Europe 25% of workers say they experiece work-related stress for all or most of their workig time, ad a similar proportio reports that work affects their health egatively. Psychosocial risks cotribute to these adverse effects of work (Eurofoud ad EU-OSHA, 2014). There are also may pieces of research coducted i the various Member States which validate ad cofirm these fidigs. The Austria survey of hospital doctors, metioed previously, revealed that 36% of the respodets stated that it was rather improbable ad aother 28% that it was very improbable that they will be able to do their work util the retiremet 20 Europea Foudatio for the Improvemet of Livig ad Workig Coditios, 2015

27 Optig out of the Europea Workig Time Directive age of 65. I other words, early two-thirds of hospital doctors assess their curret workig coditios as ot sustaiable with respect to their health. The exteded workig time is oe, if ot the most importat, factor i this respect. Research studies o the impacts of the derogatio from the maximum workig week i the Czech Republic healthcare sector poit out egative cosequeces o the health of doctors. A survey coverig 7,428 Czech doctors, coducted by the Czech Chamber of Medicie (ČLK) ad the First Faculty of Medicie of the Charles Uiversity i Prague (1.LF UK) i 2013, revealed that every third doctor suffered from bur-out ad 83% of doctors felt threateed by it. The problem was most proouced amog youg medical staff. The time-load was idetified as the most itesive stressor. Doctors also appeared to suffer more ofte from depressio tha the geeral populatio, which accordig to the authors of the study ca be attributed to overall fatigue ad bur-out sydrome. The authors also stress the cosequeces of bur-out o work efficiecy ad commuicatio with patiets (see Ptáček ad Raboch, 2013a ad 2013b). Czech research also uderlied that the reductio i free time obviously impacts egatively o work life balace (for example, Brůha ad Prošková, 2011) ad that log workig hours are also deouced as oe reaso for the ageig workforce i the healthcare sector ad a permaet lack of suitable staff with fewer job opeigs ad fewer youg doctors eterig the sector (Kubek, 2014). May stakeholders (icludig employer ad worker represetatives) however poit to advatages for idividual employees i the healthcare sector. For may doctors, the mai beefit of extesive overtime is additioal pay that appears to compesate for otherwise iadequate salaries, ad this is particularly relevat for youg doctors with lower wages. Moreover, log workig hours eable youg doctors to obtai practice ad experiece much faster tha without overtime. A recet study by the Fiish Aalto Uiversity ad the Cofederatio of Uios for Professioal Maagerial Staff (Akava, 2014) shows that for may highly educated employees, work spills over ito their persoal lives. Accordig to the study, about 15% of work is beig doe outside office hours, with, i most cases, the workig day beig exteded ito the eveig. Whe all the time used for work is added, the average workig time for the employees i the survey was over 43 hours. Akava fids that the curret Workig Hours Act, which is based o a 8 to 4 workig culture should be reewed. The 1,677 respodets i the survey represeted six of Akava s member uios. A epidemiological study by Fiish researchers also foud that people who worked 11 or more hours per day compared with those who worked a ormal, eight-hour day had a 60% higher risk of heart-related problems such as death due to heart disease, o-fatal heart attacks ad agia (Virtae et al, 2010). Recurret studies by the Federal Istitute for Occupatioal Safety ad Health (BAuA) i Germay show that workig very log hours carries cosiderable risks for the health of workers. At its 23rd Coferece o Occupatioal Health i November 2014, i Dresde, Saxoy, BAuA preseted fidigs from its 2012 employee survey. More tha oe-fifth (22.3%) of those with a cotractual weekly workig time of betwee 40 ad 47 hours effectively worked 48 hours or more. Those workig 48 hours per week or more reported more frequet health problems ad felt more ofte uder stress tha those with fewer workig hours. I Hugary, various studies show that there are several reasos why people work very log hours. Self-motivatio may lead to excessive work, but exteral factors such as work schedule, fiacial rewards, career opportuities ad market competitio ca also force people to work more tha would be advisable. Some of the harmful cosequeces of workig log hours idetified iclude complaits about fatigue, axiety disorder, paic attacks ad depressio, ad reports of sleepig ad restig less tha would be ecessary. I October 2014, the Spaish Trade Uio Cofederatio of Workers Commissios (CCOO) published a report o illegal overtime i the fiacial sector. Accordig to this report, o-paid overtime is commo i the Spaish fiacial Europea Foudatio for the Improvemet of Livig ad Workig Coditios,

28 Optig out of the Europea Workig Time Directive sector, ad the proportio of o-paid overtime has icreased durig the crisis years. Some 70% of the staff work overtime. The report estimates that betwee 2008 ad 2013 the lack of social security cotributios ad tax paymets liked to illegal overtime led to losses amoutig to 2.3 billio of public icome. The report also liks illegal overtime to egative effects o occupatioal health ad o work life balace (CCOO, 2014). Several surveys i differet fiacial groups (such as Barclays, Sabadell, Citibak, Bakia ad La Caixa) carried out by CCOO idicate the worseig of workers health, reflected i paic or axiety disorders ad stress, liked to too much work pressure. I 2006, a Swedish experimetal study o log workig hours was coducted by dividig 18 office workers ito two groups that worked 40 ad 60 hours durig oe week respectively. The study cocluded that oe week of very log workig hours resulted i icreased sleepiess ad fatigue, but did ot have ay major effect o physiological stress markers such as cortisol, heart rate ad blood pressure (Dahlgre, 2006). Later, i 2010, the Swedish Stress Research Istitute (Stressforskigsistitutet) published a research review o the effect of workig hours o health. The study was fiaced by the employer associatio SKL ad the Swedish Associatio of Health Professioals (Vårdförbudet). It cocluded that workig very log hours (defied as over 10 hours a day) icreases risks to safety ad the icidece of disease, ad that the upper safety ad health limit of weekly workig hours for a job with a moderate workload was hours. Above that limit, the workig time starts cuttig dagerously ito rest time, causig icreased safety ad health risks. The research review cocluded that the effect depeds o idividual factors such as sex, age ad family status, ad that there is a eed for more quatitative research that better cotrols for cofoudig factors (Kecklud et al, 2010). The safety ad health paradox From the employer s poit of view, the use of the idividual opt-out ca be see as a factor cotributig to icreased orgaisatioal flexibility i dealig with variatios i demad for goods ad services. Therefore, it ca play its part i the compaies ability to compete i the market or to esure the cotiuity of the provisio of importat, ofte public, services such as medical care or emergecy support. However, apart from the fact that the levels of workers productivity ted to decrease aturally the loger the workig hours, log hours do ot seem to be ecessarily associated with the best performig coutries or sectors of activity i the EU, or do they cotribute to icreased productivity of workers. O the cotrary, it seems that some of the most productive coutries ad sectors of activity i the EU are those where collectively agreed weekly workig time is defied below the limits established i the EWTD. For example, i Demark, where the opt-out from the EWTD is ot allowed, the agreed weekly workig time i the Daish idustry agreemet, which is the followed by the agreemets i the other sectors, has bee 37 hours per week sice Nevertheless, optig out of the EWTD to be able to work more hours ca be see by workers as a meas to icrease their icome or simply to icrease their chaces of beig promoted or gaiig the experiece required to get a differet job. This raises a umber of importat questios, for example i relatio to whether wages are set at such a level that people must have two jobs (or more) just to make eds meet. Or whether the way workers are evaluated to progress i their career values ad rewards a variety of elemets ad ot just the umber of hours worked. All thigs cosidered, if the mai purpose of the EWTD is to establish miimum safety ad health requiremets for the orgaisatio of workig time, icludig by guarateeig to all workers i the Europea Uio the right to a limit to weekly workig hours (which might ot exceed 48 hours, o average), it seems paradoxical that the directive cotais i itself a mechaism which eds up allowig behaviours that put workers safety ad health at risk through deviatios from the weekly workig time limit of 48 hours. 22 Europea Foudatio for the Improvemet of Livig ad Workig Coditios, 2015

29 Optig out of the Europea Workig Time Directive Coclusios The Europea Workig Time Directive (EWTD) 2003/88/EC lays dow miimum safety ad health requiremets for the orgaisatio of workig time ad applies to all sectors of activity, public ad private, with few exceptios. The mai objective of this report was to describe how the Member States make use of oe of those exceptios, amely the possibility of optig out of the maximum weekly workig time o the basis of a agreemet betwee idividual workers ad employers, as established i Article 22, paragraph 1 of the EWTD. The geeral cofiguratio across the EU is virtually the same as five years ago with three distict groups of coutries. I five coutries Bulgaria, Cyprus, Estoia, Malta ad the UK the opt-out is of geeralised use, regardless of the sector of activity or occupatio cocered. I a secod group of 11 coutries Belgium, the Czech Republic, Frace, Germay, Hugary, Latvia, the Netherlads, Polad, Slovakia, Sloveia ad Spai the opt-out is limited to specific sectors or occupatios, maily i the health sector or jobs requirig workers to be o call. I the third group Austria, Croatia, Demark, Filad, Greece, Irelad, Italy, Lithuaia, Luxembourg, Portugal, Romaia ad Swede the opt-out was origially ot allowed. Austria itroduced the possibility to deviate from the EU rules through the Hospital Workig Time Act at the begiig of The itetio is to progressively reduce the maximum weekly workig hours allowed to the EU rule of 48 hours by Because of icreasig umbers of complaits to the Europea istitutios, Greece, Irelad ad Italy, which had also formally decided ot to allow the opt-out, have bee referred to the Europea Court of Justice (ECJ) recetly for ot complyig with EU rules o limits to workig time for doctors i public health services. So far, oly Italy has acted successfully to brig the cotetious legislatio i lie with EU law by November 2015, leadig the Europea Commissio to withdraw the case. I the Czech Republic ad Spai, the existig provisios for departig from the maximum weekly workig time i the health sector were oly trasitioal ad expired i However, the available evidece shows that i both coutries the practice of workig log hours i the sector cotiues ad that the authorities are strugglig to maage the situatio i order to comply with EU regulatios. More tha 20 years after Coucil Directive 93/104/EC came ito force, there are almost o data available o the extet of use of the idividual opt-out how may workers ad compaies or orgaisatios use it. Eve less is kow about the characteristics ad cotet of the opt-out agreemets what kid of workers ad compaies use them; why they use them; for how log the opt-out agreemet will be i effect; ad uder what coditios these agreemets are siged. The iformatio available shows that the opt-out is mostly see by employers as a way of gaiig the flexibility ecessary to cope with variatios i demad ad sustaiig their competitiveess ad, i priciple, they do ot support its elimiatio. Yet, there is a vast body of studies ad research showig the egative effects of workig log hours, especially over log periods of time, o workers, cliets, patiets ad cosequetly o employers. However, if the positive aspect of the opt-out is just to obtai flexibility i workig time arragemets which ca be beeficial for both employers ad workers, the the idividual opt-out is ot the best optio. All thigs cosidered, there are strog reasos to thik that time limits are beeficial for everyoe: workers see their safety ad health safeguarded, patiets ad cliets do ot risk beig submitted to icreased levels of stress or fatigue o the part of the workers dealig with them, ad employers beefit from a more efficiet use of resources ad avoid the Europea Foudatio for the Improvemet of Livig ad Workig Coditios,

30 Optig out of the Europea Workig Time Directive risk of losig clietele because of reduced quality of service, productio losses ad waste associated with overworked staff, or eve the risk of icreased umbers of accidets at work. Because there is too much at stake i deviatig from the existig limits o workig time, ay discussio about the subject should be fully iformed. This modest report has show there are still some importat kowledge gaps that should be addressed with further research to achieve a more comprehesive uderstadig of the matter. Oe of the most importat topics to be studied further is the extet to which the provisios for idividual optig out at atioal level are adequate ad i lie with the mai priciples of the EWTD. It is particularly importat to make such a assessmet i the cotext of the iterplay betwee the differet forms of derogatio foresee i the EWTD which exist i each Member State ad i the cotext of the varied employmet cotracts available owadays (for example, zero-hours cotracts). It would also be importat to look at the trade-offs ivolved i the decisio-makig of workers ad employers whe cosiderig the possibility of optig out ad assess to what extet health ad safety is, i fact, take ito cosideratio. Fially, it would also be beeficial to kow more about the meas ad resources available to the competet authorities to keep track of existig opt-out agreemets, ad the extet to which they are able to eforce ad esure compliace with legislatio ad provide iformatio to employers ad workers about the provisios i place. Bibliography All Eurofoud publicatios are available at Akava (2014), Työpaikat hajautuvat ja työajat läikkyvät asiatutijatyössä [Jobs ad workig hours are fluid for professioals], Akava website, 26 November. Asociació Española de Guardias Civiles (AEGC) (2013), Resume de la reuió del grupo de trabajo jorada y horario del Cosejo de la Guardia Civil de 24/09/2013, available at reuio GT jorada pdf. Barard, C., Deaki, S. ad Hobbs, R. (2004), Optig out of the 48-hour week Employer ecessity or idividual choice? A empirical study of the operatio of Article 18(1)(b) of the Workig Time Directive i the UK, Workig Paper No. 282, ESRC Cetre for Busiess Research, Uiversity of Cambridge. BIS (2013), The 2011 Workplace Employmet Relatios Study: First fidigs, UK Departmet for Busiess, Iovatio ad Skills, Lodo. BIS (2014), The impact of the workig time regulatios o the UK labour market: A review of evidece, BIS aalysis paper umber 5, UK Departmet for Busiess, Iovatio ad Skills, Lodo. Brůha, D. ad Prošková, E. (2011), Zdravotická povoláí [Medical professios], Wolters Kluwer, Prague. CBI/Acceture (2014), Growth for everyoe: CBI/Acceture employmet treds survey 2014, CBI ad Acceture, Lodo. CCOO (2014), CCOO reclama u cambio ormativo para luchar cotra las horas extras ilegales [CCOO calls for regulatory chage to combat illegal overtime], available at cotra_las_horas_extras_ilegales. 24 Europea Foudatio for the Improvemet of Livig ad Workig Coditios, 2015

31 Optig out of the Europea Workig Time Directive Dahlgre, A. (2006), Work stress ad overtime work effects o cortisol, sleep, sleepiess ad health, PhD thesis, Stockholm Uiversity, Stockholm. Eurofoud ad EU-OSHA (2014), Psychosocial risks i Europe: Prevalece ad strategies for prevetio, Publicatios Office of the Europea Uio, Luxembourg. Eurofoud (2008), Revisios to the Europea workig time directive: recet Eurofoud research Backgroud paper, Dubli. Eurofoud (2009), Workig coditios i the Europea Uio: Workig time ad work itesity, Publicatios Office of the Europea Uio, Luxembourg. Eurofoud (2012), Fifth Europea Workig Coditios Survey, Publicatios Office of the Europea Uio, Luxembourg. Eurofoud (forthcomig), Workig time developmets ito the 21st cetury, Publicatios Office of the Europea Uio, Dubli. Europa e breve (2014), Reclamació a españa por el tiempo de trabajo para guardias civiles [Request for Spai to respect workig time of the Civil Guard], No. 668, 3/14, Delegació de la Abogacía Española e Bruselas [Delegatio of Spaish lawyers i Brussels], Brussels. Europea Commissio (2004), Proposal for a Directive of the Europea Parliamet ad of the Coucil amedig Directive 2003/88/EC cocerig certai aspects of the orgaisatio of workig time, COM(2004) 607 fial, Brussels. Europea Commissio (2010a), Detailed report o the implemetatio by Member States of Directive 2003/88/EC cocerig certai aspects of the orgaisatio of workig time ( The Workig Time Directive ), Commissio staff workig paper, COM(2010) 802 fial, Brussels. Europea Commissio (2010b), Report from the Commissio to the Europea Parliamet, the Coucil, the Europea Ecoomic ad Social Committee ad the Committee of the Regios o implemetatio by Member States of Directive 2003/88/EC ( The Workig Time Directive ), COM(2010) 802 fial, Brussels. Europea Commissio (2013), Workig time: Commissio refers Greece to Court for ot respectig EU rules i public health services, press release, Brussels, 20 November. Europea Commissio (2014), Workig time: Commissio refers Italy to Court for ot respectig EU rules i public health services, press release, Brussels, 20 February. Europea Parliamet (2007), Workig time directive: Impact of Simap/Jaeger rulig o o-call time, DG Iteral Policies Departmet, Brussels. Gozález Sáchez, J. M. (2014), El tiempo de trabajo del persoal estatutario co jorada complemetaria. La guardia y la salida de guardia [Workig time of health workers: O-call work ad exitig o-call work], Derecho y Salud, Vol. 24 Extraordiario XXIII Cogreso Europea Foudatio for the Improvemet of Livig ad Workig Coditios,

32 Optig out of the Europea Workig Time Directive Idex (2014), 10 órás mukaap? Simá be lehet vezeti! [Ca a 10-hour day be itroduced smoothly?], Idex web page 27 November, available at Kecklud, G., Igre, M. ad Åkerstedt, T. (2010), Arbetstider, hälsa och säkerhet e uppdaterig av aktuell forskig [Workig hours, health ad safety A update of curret research], Swedish Stress Research Istitute, Stockholm Uiversity, Stockholm. Kubek, M. (2014), Za 7,5 proceta HDP elze zajistit dostupost kvalití a bezpečé péče [It is ot possible to assure availability of high-quality ad safe healthcare for 7.5% of GDP], Tempus medicorum, Vol. 23, No. 4, pp Ptáček, R. ad Raboch, J. (2013a), Diagóza českého zdravotictví Z 73.0? Stres a vyhořeí lékařů českých [Diagosis of the Czech healthcare sector Z 73.0? Stress ad bur-out of Czech doctors], Tempus medicorum, Vol. 22, No. 9, pp Ptáček, R. ad Raboch, J. (2013b), Míra vyhořeí v jedotlivých lékařských oborech [Bur-out levels i idividual medical sectors], Tempus medicorum, Vol. 22, No. 11, p. 26. Sidicato Médico Adaluz (2013), La jorada laboral e Europa cotiúa si acuerdo después de casi 10 años de egociació [Workig hours i Europe ot agreed after almost 10 years of egotiatios], available at Sidicato Médico de Sevilla (2014), Posicioamieto del SMS sobre la Jorada complemetaria localizada [Positioig of SMS i relatio to reachable o-call work], available at SNPHAR (2004), Workig time & medical o-calls, Sydicat Natioal des Praticies Hospitaliers Aesthésistes Réaimateurs, Paris. TUC (2013), Hazards at work, Trades Uio Cogress, Lodo. UK Govermet (2015a), Maximum weekly workig hours, available at UK Govermet (2015b), Drivers hours, available at Virtae, M., Ferrie, J. E., Sigh Maoux, A., Shipley, M. J., Vahtera, J., Marmot, M. G. ad Kivima ki, M. (2010), Overtime work ad icidet coroary heart disease: the Whitehall II prospective cohort study, Eur Heart J, Vol. 31, No. 14, pp Europea Foudatio for the Improvemet of Livig ad Workig Coditios, 2015

33 Optig out of the Europea Workig Time Directive Aexes Aex 1: Questioaire: Questios o the use ad impact of the opt-out from the Europea Workig Time Directive Derogatios from maximum workig week Oe of the mai provisios of the Workig Time Directive 2003/88/EC is a maximum average workig week of 48 hours (icludig overtime, calculated over a four-moth referece period). The directive establishes, however, some possibilities for Member States of ot applyig the 48-hour weekly workig limit. These are derogatios from the Directive. Article 22 of the Workig Time Directive determies that, uder certai coditios, Member States ca decide for ot applyig the weekly maximum of 48 hours provided that the priciple of protectio of workers health ad safety is guarateed ad there is a agreemet betwee the employer ad the worker cocered. I this situatio, the Directive does ot provide, however, a explicit ceilig to the maximum hours that could be worked. There are opposig perspectives i relatio to the use of these derogatios ad, i particular, the idividual agreemet betwee employer ad worker. O the oe had, some advocate that employers eed some flexibility while idividual workers should have a choice o their maximum workig hours. O the other had, some stakeholders the idividual opt-out as a threat to health ad safety which exploits workers' uequal bargaiig positio. It is kow that some Member States curretly allow the use of this opt-out possibility (but ot all) ad that the coditios uder which this possibility ca be used vary sigificatly from coutry to coutry. However, very little is kow about its use ad its impact o employers ad workers. 1.1 Is there a possibility for ot applyig the 48-hour weekly workig limit i your coutry? Please briefly describe if ad how the possibility of ot applyig the weekly maximum of 48 hours has bee trasposed ito atioal legislatio, metioig its rage of coverage (whole ecoomy or just i some sectors or occupatios) ad the mai coditios uder which it ca be resorted to by employers ad workers. 1.2 Is there atioal data available o the use of derogatios from the 48-hour weekly workig limit? Please report about the most recet data available o the extet of use of the possibilities to derogate from the weekly maximum of 48 hours i your coutry. If available, please iclude breakdows by sex, age, occupatio, educatioal level, sector of activity, or other relevat variables which may help to characterise ad uderstad better the pheomeo. If these derogatios are ot a possibility i your coutry, please report about the most recet data o very log workig hours (i.e., more tha 48 hours per week, icludig overtime), icludig, if possible, breakdows by sex, age, occupatio, educatioal level, sector of activity, or other relevat variables which may help to characterise ad uderstad better the pheomeo. 1.3 What are the mai impacts of the derogatios from the 48-hour weekly workig limit for employers ad workers? Please report about the fidigs of research articles or studies o the advatages ad disadvatages or o the impact(s) of the use of these derogatios for employers ad/or for workers. If these derogatios are ot a possibility i your coutry. If these derogatios are ot a possibility i your coutry, please report about the fidigs of most recet research fidigs about workig very log hours data (i.e., more tha 48 hours per week, icludig overtime). Europea Foudatio for the Improvemet of Livig ad Workig Coditios,

34 Optig out of the Europea Workig Time Directive 1.4 Please briefly report about ay relevat debates o the use of these derogatios durig 2014 i your coutry, without forgettig to metio the actors/orgaisatios ivolved ad their positios i that debate. If these derogatios are ot a possibility i your coutry, please report about ay relevat debates o workig very log hours (i.e., more tha 48 hours per week, icludig overtime), durig the year of 2014 i your coutry, without forgettig to metio the actors/orgaisatios ivolved ad their positios i that debate. Aex 2: Summary of atioal provisios of idividual opt-outs as per Article 22(1) of the EWTD Coutry Austria Belgium Bulgaria Croatia Cyprus Czech Republic Demark Estoia Filad Frace Germay Hugary Irelad Italy Latvia Lithuaia Luxembourg Malta Netherlads Norway Polad Portugal Romaia Slovakia Sloveia Spai Swede Brief descriptio Austria is formally oe of the Member States that have ot allowed the use of the opt-out clause i its legislatio. I practice, the opt-out has bee available to hospital doctors sice Jauary 2015 uder the Hospital Workig Time Act. Sice December 2010: doctors, detists, veteriarias, cadidate doctors i traiig, cadidate traiee detists ad studet iters; cap at 60 hours per week; also i the public sector, for emergecy workers (such as medical staff ad firefighters). Yes, irrespective of the sector or occupatio; cap at 13 hours per day. Not allowed. Yes, irrespective of the sector or occupatio. Temporary provisio i the Labour Code betwee October 2008 ad December 2013 for medical staff i the healthcare sector; opt-out for o loger tha 52 weeks. Not allowed. Yes, irrespective of the sector or occupatio; cap at 52 hours o average over a period of 4 moths. Not allowed. Allows excess hours to be worked o a volutary basis by doctors ad pharmacists i public health services, but there is ot always a legal requiremet of advace idividual coset. Workig Time Act (Arbeitszeitgesetz) allows for opt-out whe substatial amout of o-call or emergecy service time exists o a regular basis ; it is applied i various collective agreemets, otably i the health sector; cap at 54 ad 58 hours, depedig o the workload. Same provisios apply to civil servats with a cap at 54 hours per week. Applicable per worker. Provisios for the healthcare sector sice 2003, i the Healthcare Act (ameded i 2004, 2007, ad 2012 Act LXXXIX); cap at maximum 12 hours per day. Not allowed. Not allowed. Provisios i Medical Treatmet Law (ameded i 2009 ad 2012); applicable to medical ad o-medical emergecy service team members; cap at 60 hours per week/240 hours per moth. Not allowed. Not allowed. Yes, irrespective of the sector or occupatio; o cap; applicable per employmet cotract. Applicable to jobs which make use of o-call time, such as health service workers ad firefighters; cap at 60 hours. Not allowed. Act o Medical Activities, of 2011; medical doctors; applicable per employmet cotract. Not allowed. Not allowed. Provisios i the Labour Code for healthcare workers; cap at 400 hours of overtime per year; applicable per employmet cotract. Provisios i the Medical Services Act, of 2004, for medical workers i hospitals or health cetres. Provisios i Framework Statute of statutory staff i health services, Law No. 55/2003; trasitioal provisio which expired i December 2013; it was applicable per employmet cotract. Not allowed. Uited Kigdom Yes, irrespective of the sector or occupatio; o cap; applicable per worker. Source: Eurofoud Network of Europea Correspodets 28 Europea Foudatio for the Improvemet of Livig ad Workig Coditios, 2015

35 Optig out of the Europea Workig Time Directive Aex 3: Authors of the atioal cotributios Austria: Mafred Kre, FORBA Belgium: Carolie Vadermeere, Uiversity of Leuve Bulgaria: Vassil Kirov ad Daiela Vreskova, ISSK-BAS Croatia: Irea Klemečić ad Predrag Bejaković, Istitute of Public Fiace Cyprus: Eva Soumeli, Cyprus Labour Istitute Czech Republic: Štěpáka Lehma, Research Istitute for Labour ad Social Affairs (RILSA) Demark: Carste Jørgese, FAOS, Uiversity of Copehage Estoia: Märt Masso, Praxis Filad: Lisa Töes Löroos, Oxford Research Frace: Sebastia Schulze-Marmelig, IR Share Germay: Heier Dribbusch, Istitute of Ecoomic ad Social Research (WSI) Greece: Pey Georgiadou, Labour Istitute of GSEE (INE/GSEE) Hugary: Pál Belyó, Policy Ageda Irelad: Roisi Farrelly, IRN Publishig Italy: Feliciao Iudicoe, Fodazioe Giacomo Brodolii Latvia: Raita Karite, EPC Ltd. Lithuaia: Rasa Zabarauskaite, Lithuaia Social Research Cetre (LSRC) Luxembourg: Fay Etiee-Robert, CEPS/INSTEAD Malta: Mawel Deboo ad Aa Borg, Uiversity of Malta (UoM) Netherlads: Robbert va het Kaar, AIAS Polad: Barbara Surdykowska, Istytut Spraw Publiczych Portugal: Reihard Nauma, DINÂMIA-CET Romaia: Raluca Dimitriu, Europea Istitute of Romaia Slovakia: Ludovit Cziria, Istitute for Labour ad Family Research Sloveia: Barbara Luzar, Uiversity of Ljubljaa, Faculty of Social Scieces Spai: Jessica Durá, Ikei Swede: Emilia Johasso ad Petter Daielsso, Oxford Research Uited Kigdom: Duca Adam, Uiversity of Warwick Norway: Kristi Alsos, Fafo Europea Foudatio for the Improvemet of Livig ad Workig Coditios,

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37 EF/15/27/EN

38 TJ EN-N The Europea Workig Time Directive lays dow miimum safety ad health requiremets for the orgaisatio of workig time i the EU by, for example, establishig that all workers have the right to a limit to weekly workig time of 48 hours. However, it also cotais the possibility for Member States to allow for the optig out of that maximum as log as the idividual workers agree. This report looks at how the Member States make use of the possibility of optig out, the extet of its use ad its mai impacts. Although atioal data about its use are scarce, the opt-out ad log workig hours cotiue to be the subject of heated debates ivolvig govermets ad social parters across the EU. Accordig to the research curretly available, there are strog reasos to thik that the limitatio of workig time is beeficial for everyoe, icludig workers, employers, patiets ad cliets. The Europea Foudatio for the Improvemet of Livig ad Workig Coditios (Eurofoud) is a tripartite Europea Uio Agecy, whose role is to provide kowledge i the area of social ad work-related policies. Eurofoud was established i 1975 by Coucil Regulatio (EEC) No. 1365/75, to cotribute to the plaig ad desig of better livig ad workig coditios i Europe. doi: /380 ISBN: