Position De L UEAPME

23/06/04

UEAPME Position

on the communication of the Commission concerning the revision of directive 93/104/CE on certain aspects of the organisation of working time

Second stage consultation

On 25 May 2004, the European Commission launched the second stage consultation of the social partners according to article 138 of the Treaty.

In this second stage consultation the Commission invites the social partners:

• To forward an opinion or, where appropriate, a recommendation on the objectives and the content of the envisaged proposal in accordance with Article 138(3) of the EC Treaty;
• To notify the Commission, where applicable, of their intention to initiate the negotiation process on the basis of the proposals put forward in this document, in accordance with Article 138(4) and 139 of the EC Treaty.
• Furthermore, the Commission asks the social partners to include with their opinions or recommendations, where appropriate, an assessment of the impact of the proposed measures, and of any alternative put forward.

The measures put forward concern:

• the opt-out provided for in article 18.1 (b)(i)
• the definition of working time
• the derogations to the reference periods (Article 17.4)
• the compatibility between work and family life.

I – General remarks

As we have already expressed in our response to the first consultation, UEAPME wishes to recall how vital the flexibility of the organisation of working time is for the capacity of adaptation of SMEs and therefore the guarantee of their productivity and their competitiviteness on the world market.

Furthermore, flexibility is not only appreciated by enterprises, but also by workers, whose lifestyles have evolved greatly and are very individualised.

Generally, UEAPME welcomes the willingness of the Commission to adopt a global and coherent approach which will allow a new balance to be found between the protection of health and safety of workers on the one hand, and the necessary flexibility in the organisation of working time on the other hand.

II - Responses to the elements of the Commission

1 - Opt-out provided for by article 18.1 (b) (i)

The Commission proposes to:

-tighten the conditions of application of the individual opt-out provided for in article 18.1 (b)(i), in such a way as to consolidate its voluntary nature and prevent abuse;

-Permit exemptions from the maximum weekly working time only through collective agreements or agreements between the social partners;

-Provide that derogations from article 6.2 would only be possible by means of collective agreements or agreements between social partners. In enterprises without such applicable agreement and no representation of workers, the individual opt-out under tighter conditions would remain applicable.

-Revise the individual opt-out, with a view to its phasing out as soon as possible. In the meantime, tighten the conditions of application of the individual opt-out provided for in article 18.1(b)(i), in such a way as to consolidate its voluntary nature and prevent abuse.

Comments:

UEAPME is of the opinion that the individual opt-out must remain applicable, in particular for SMEs. The flexibility which allows workers and enterprises to have recourse to an individual agreement in order to work more than 48 hours per week must be maintained.

Nevertheless, in order to avoid misabuse, UEAPME can understand that the necessity to tighten certain conditions of application could be reformulated as proposed by the Commission:

-separation in time between the individual consent and the signature of the employment contract,

-an obligation to regularly review the individual consent,

If UEAPME understands the necessity of reframing the obligations which arise from the use of the individual derogation, it is on the express condition that these do not create too heavy and, as the Commission says “unreasonable” constraints for SMEs.

On the other hand, UEAPME has many reservations concerning the fixing of a cap on the maximum number of working hours permitted, in the sense that it will clearly limit the flexibility of this derogation. if this limit is too low, there is the risk of seriously limiting the advantage of the opt-out.

What do you think? Could you accept the idea of limiting the number of maximum hours for the opt-out?In principle yes but only under the condition that this maximum is set at a very generous level (between 60 to 70) hours per

UEAPME is particularly concerned by the two following proposals and their combination, which according to UEAPME run clearly against SMEs:

• On the one hand the proposal foresees that the derogation from article 6.2 (the length of working time can exceed 48 hours per week) should only be possible by means of collective agreements or agreements between social partners, where enterprises do not have such agreements or representation of workers, which means principally SMEs, the individual opt-out, with tighter conditions, will continue to be applicable.

• On the other hand, the proposal suggests revising the individual opt-out, with a view to its phasing out completely.

On this point, UEAPME reiterates its demand which is that the individual exemption (individual opt-out) must be complemented by the possibility of a derogation by way of collective agreement or agreement between management and labour at a lower level, and that these two possibilities can apply indifferently to all enterprises, large, medium, small and micro.

In this respect equal treatment of enterprises irrespective of their size is particularly important for SMEs as it determines their position in the competition for qualified workers.

Finally, UEAPME is firmly opposed to the idea of a new revision of the individual opt-out with a view to its phasing out completely as soon as possible as proposed by the Commission.

Such a decision would be extremely damaging to a great number of SMEs in terms of flexibility and therefore in terms of jobs.

2 - The definition of working time

Following the interpretation of the directive by the European Court of Justice, UEAPME fully shares the opinion of the Commission that it is necessary to create another type of time which is between “working time” and “rest time”.

We therefore want the principle of a new concept comprising the characteristics of the two existing categories.

This all the more necessary because this new definition of working time does not affect solely the medical profession, but also many other sectors such as care services, care-taking services for buildings, internal security of enterprises, certain transporters, etc…

Nevertheless, the name “inactive part of on-call time” could lead to confusion in the sense that it could be interpreted as only the non-working part of on-call time.

In order to avoid all ambiguity, UEAPME feels it isdesirable to find a different name for this clearconcept of “on-call time”, which should cover the entire period on-call time, whether the person is active or inactive during this time.

This would also resolve the question of compensatory rest which by definition are already included in on-call time. Furthermore the general provisions on daily and weekly rest will apply as well to the new category of “time”.

This new category of time should only be applied in the case of “on call” time, when the worker is at a place defined by the employer and at his/her disposal to take up work.

This new category of time should be clearly distinguished from tThe situation where the employee is free to choose the place to stay but has to take up work within a reasonable delay, defined in French as “temps d’astreinte” or in German as “Rufbereitschaft”. The "Temps d'astreinte" or "Rufbereitschaft" should be clearly excludednot be included in from the current solution proposed for the “on call time”.

The definition of this new category of time should leave enough room for maneuvre so that practical implementation could be defined at national and/or sectoral level by means of collective agreement or by agreement between management and labour at a lower level.

Furthermore, UEAPME reiterated its call for the application of the principle that this new “third category” of time is not included in the weekly 48 hours.

Moreover UEAPME considers it necessary to increase significantly the maximum working time for this new category of available time above the 48 hours of at least up to 60 hours per week on averageThis would also resolve the question of compensatory rest which by definition are already included in on-call time. Furthermore the general provisions on daily and weekly rest apply as well to the new category of “available time”In this context, UEAPME also asks for a flexible solution in terms of the integration of the third type of time in the weekly 48 hours. NO! This third type of time has to be EXCLUDED from the 48 hours – this was also asked for by UEAPME in its reply to the first consulta, mainly due to the fact that this “third category” of availabletime contains by definition always parts of inactive time.

In practical terms, the choice of integrating this third type of time in the 48 weekly hours or not must be left to the Member States, be it by means of legislation or agreement between the social partners, in order to decide how to best manage on-call time

Finally, UEAPME stresses that the creation of this new category of time must not lead to additional administrative burdens for SMEs due to new record keeping obligations, etc.

Position of CGPME: the decision to include the third type of time in the 48 must be made case by case:

Justification: in certain activities, on-call time constitutes the major part of working time, eg: care for people at home, childcare, care for handicapped people … and therefore it is necessary to preserve a certain flexibility regarding the inclusion in the 48 hours or not.

What is your position on this question? See remark above – No inclusion in the 48 hour week (see Austrian legislation where available time can be carried out for 60 hours per week on average)

3 - Derogations to the reference periods (Article 17.4)

The annualisation of working time has become a more and more necessary practice in order to cope with the variations of activity ien particular in SMEs, where the internal possibilities for adaptation are very limited.

UEAPME is therefore very positive towards the principle of extending the reference period via legislation and/or regulation.

As we have already expresseds in our response to the first stage of consultation, UEAPME considers that Article 16.2 should be revised in order to fix the reference period at 12 months as a general rule for the calculation of the 48 hours per week.

Furthermore, the Member States should give the social partners the possibility to extend the reference period further by way of collective agreement or agreement between management and labour at a lower level.

In this context, this would allow Article 17(4) to be amended by deleting the explicit mention of objective and technical reasons or reasons concerning the organisation of work.

CGPME wants a extension to 6 months as a general rule and 12 months by collective agreement.

4 - Reconciliation of work and family life

As we already stated in our response to the first consultation, UEAPME considers that the aspect of reconciliation of work and family life does not belong in the framework of the directive on the organisation of working time, for which the legal base is the protection of the health and safety of workers.

Furthermore, the measures which could contribute to a better reconciliation of work and family life are generally to be found in a much more satisfactory manner at the level of the enterprise or the local level and outside of the legislative framework.

5 - The question of negotiations between social partners

In accordance with article 138 of the Treaty, the social partners have the possibility during the second consultation to engage in negotiations.

The Commission has declared itself very much in favour of the social partners deciding to open negotiations on certain aspects of the organisation of working time, as described in the consultation.

The issue of the organisation of working time is a central issue of the social dialogue, which must logically lead to negotiations with a view to reaching an agreement of the social partners.

However, the current situation in which the social partners find themselves is somewhat particular.

The existence of the directive 93/104/CE, in which numerous parameters have already been determined (maximum weekly duration of working time, rest time, annual holiday), reduce the chances of success in achieving a compromise acceptable to both parties.

Finally, the positions of the two parties (employers and trade unions) are at this point divergent on the fundamental questions of the debate, (increase flexibility on the one side and reduce working time on the others), that it does not appear desirable to UEAPME and its members to engage in such negotiations at European level on the three main issues proposed by the Commission (opt-out, definition of working time, reference period).

Question:

Do you agree with my arguments for justifying our refusal to negotiate?

Yes!

Conclusions:

Given the different elements presented above,

• UEAPME is in favour of adapting the directive 93/104/EC.

• UEAPME does not intend to engage in negotiations at European level on this subject.
• UEAPME expressly demands that all modifications which take place in the context of a revision of the directive take into account their impact on SMEs.
• UEAPME therefore demands:

-that the revision of the directive should be obligatorily accompanied by an in-depth impact study for SMEs and craft enterprises,

-and that all new measures modifying the directive 93/104/CE go in the direction of a simplification of the legislation on the organisation of working time and avoidance of new red tape for businesses.

Brussels, 2917/06/04

Other questions:1 –Do you have some elements of impact assessment of the above measures?2 –Do you think we should propose some other changes in order to modify some articles of the current directive in addition to our proposal to modify Article 17.4 with the deletion of «for objective or technical reasons or for reasons or reasons concerning the organisation of work».

At this stage we do not believe it is necessary to go further as the most important aims – like simplification of the legislation and the avoidance of new red tape are mentioned in the text.

1