Projet De Position De L UEAPME

UEAPME Position

on the proposal for a directive of the European Parliament and the Council modifying directive 2003/88/CE concerning

certain aspects of the organisation of working time

UEAPME has taken note of the new proposal to revise the directive on working time adopted by the European Commission on 22 September 2004.

According to the Commission, this proposal aims to update certain essential aspects of the directive on working time, whilst preserving the first objective of the directive – the health and safety of workers – and responding to the needs of a modern economy.

UEAPME considers that this new proposal does not in general take enough account of the needs of enterprises for flexibility in order to facilitate their capacity for adaptation and thereby preserve their competitiveness.

By tightening up the rules of access and the application of the opt-out, by deciding not to introduce the extension of the reference period to 12 months for the calculation of the weekly 48 hours as a general rule and by making the compensatory rest period obligatory within 72 hours, and by making more complex the legislation on managing executives and on family workers, the Commission continues to restrain the possibilities for organising working time, which are so essential to SMEs in order to adapt themselves to the fluctuation of demand.

1. The definition of “on-call time” and of “the inactive period of on-call time”

The Commission proposes to add two new concepts to Article 2 of the directive, that of on-call time and that of the inactive period of on-call time.

Points 1 a, 1 b :

Generally UEAPME considers it positive that on-call time has been limited to the period during which the worker is obliged to be available at the workplace in order to intervene, at the employer’s request, to carry out his activity or duties.

However, for UEAPME, this definition cannot be acceptable unless it is completed by the new concept of «inactive period of on-call time», «period during which the worker is on call within the meaning of Point 1a, but not required by his employer to carry out his activity or duties » and above all that this inactive period of on-call time is not considered as working time.

In order to make this concept more practical UEAPME strongly suggests to amend the definition of on-call time as follows:

”...to be available at the workplace in order to intervene, at the employers request or according to the need to carry out his activity or duties.”

Furthermore, UEAPME prefers that the definition of the inactive part of on-call-time is amended in order to ensure that on-call time is in general regarded as inactive time.

Article 2 a:

“The inactive period of on-call time shall not be regarded as working time, unless national law and/or practice, a collective agreement or an agreement between the two sides of industry decides otherwise.

The period during which the worker carries out his activity or duties during on-call time shall always be regarded as working time”.

For UEAPME, this definition of the inactive period of on-call time as not being working time is essential. It must not be called into question by dispositions of national law, collective agreements or agreements between the social partners.

This is why UEAPME demands that the first sentence of Article 2 a be modified as follows:

Article 2 a

On-call time

“The inactive period of on-call time shall not be regarded as working time.”

The period during which the worker carries out his activity or duties during on-call time shall always be regarded as working time”.

This proposal from UEAPME regarding the definition of the inactive period of on-call time, which cannot be modified by law or collective agreements at national level, aims to respond to the difficulties met by Austria, and its current collective agreements.

Can you accept it with regard to your national situation?

Finally, whilst recognising that the current proposal contributes to resolving the question of on-call time, as raised by the decisions of the European Court of Justice, UEAPME warns of the practical difficulties of implementation and the burden of administration of this new concept for small enterprises.

In fact, the exact calculation of working time and the inactive period of on-call time risks becoming very difficult and could be the origin of several disagreements.

This is why, on the basis of the current proposals, UEAPME strongly recommends that sectoral solutions more adapted and simpler in terms of administration be found at national level either by law, by collective agreement or by agreement between the social partners.

Furthermore the directive should state clearly, that in the case of regular and considerable on-call-time the maximum weekly working time of 48 hours shall not be applied.

1. The reference period

Article 16 – reference period

According to the new proposal of the Commission, the reference period for the calculation of weekly working time remains 4 months, but the Member States can extend this to 12 months by way of legislation or regulation.

UEAPME has clearly demanded that the Commission introduce an extension of the reference period to 12 months as a general rule in the new proposal, and that this period can be extended further than 12 months by collective agreement.

This demand rests on the real practice of SMEs, which function more and more frequently on the basis of an annualisation of working time.

This mode of functioning of enterprises is explained by the need to adapt to the increasingly rapid fluctuations in demand, to the specific constraints of seasonal activities, to work organisation constraints when one has only a limited number of workers, as is the case for the great majority of SMEs which are small and micro-businesses.

UEAPME is very disappointed about the fact that the Commission has maintained the reference period at 4 months for the calculation of the maximum weekly duration of working time, even if it welcomes the new possibility to allow Member States to extend the reference period to 12 months.

A reference period of 12 months as a general rule inscribed in the directive would respond to the real conditions of the functioning of enterprises and would simplify the organisation of working time particularly in small enterprises.

1. The compensatory rest periods in case of a derogation or of on-call time

Article 17 – Paragraph 2 and Article 18

UEAPME does not welcome the new proposal of the Commission which imposes compensatory rest periods within 72 hours following working time.

For UEAPME, this new restriction of flexibility in the organisation of working time cannot be justified.

UEAPME therefore proposes that the directive be worded as follows:

“on the condition that the equivalent periods of compensatory rest are given to workers in reasonable time according to national law and/or practice”.

Liliane: das ist aus meiner Sicht notwendig um sicherzustellen, dass der EuGH nicht wieder bei einem künftigen Anlassfall zum Schluss kommt, dass es unbedingt 72 Stunden sein müssen.

In fact, it seems more appropriate that the time limit for taking compensatory rest in the case of a derogation be defined in accordance with national legislation and/or practices.

1. Derogations and exceptions

Article 17 – Paragraph 1

UEAPME is particularly concerned by the new proposal in Article 17-Paragraph 1 which foresees that in future the following categories:

a)Managing executives or other persons with autonomous decision-taking powers;

b)Family workers; or

c)Workers officiating at religious ceremonies in churches and religious communities

the Member States cannot derogate from the whole of article 16 (reference periods) as is currently the case, but only from Article 16(a) and (c).

This means that they must still be subject to Article 16(b), a reference period of 4 months (possibly 12 months if the Member State so decides) for the calculation of the average weekly working time.

Practically, if the Member States have already derogated from Article 6 (limited average weekly working time) for these categories of workers, it is very unclear how the reference period foreseen in Article 16(b) can be applied.

This is why this new clause will therefore result in an unacceptable supplementary restriction for enterprises in terms of flexibility of organisation of working time for managers and above all for family workers, a workforce which is mainly present in SMEs and craft enterprises.

Therefore, UEAPME expressly demands that the reference to 16a) and 16c) be deleted in order to return to the current existing situation , which refers to the whole Art. 16 (possible derogation from the whole of Article 16).

Will be subject to a reference period of 4 months (possibly 12 months if the Member State so decides) for the calculation of the average weekly working time, whilst according to the current directive they are not subject to any limitation of weekly working time.

This new clause will therefore result in an unacceptable supplementary restriction for enterprises in terms of flexibility of organisation of working time for managers and above all for family workers, a workforce which is mainly present in SMEs and craft enterprises.

This is why UEAPME expressly demand that the reference to 16a) and 16c) be deleted in order to return to the current situation, which refers to the whole Art. 16 .

1. The opt out (general derogation)

Article 22

UEAPME cannot accept the current proposal which tightens the conditions of access and the utilisation of the general derogation.

The double condition for having access to the opt out - existence of a collective agreement or an agreement between social partners and individual agreement – is not acceptable. This new limitation could result in the creation of two categories of SME, those covered by a collective agreement run the risk of being penalised.

Furthermore, the double condition, the tightening of the conditions of application of the individual opt-out, for which the aim is to prevent abuse, will inevitably create an increase in bureaucracy for SMEs who wish to use it.

In order to simplify, the necessity of renewing the individual agreement every year could very well be done in a tacit manner, without further formality.

Is it necessary to add another paragraph on the limitation to maximum 65 hours in the case of application of the opt out?No!

UEAPME repeats its position, that the derogation must be possible by individual agreement as well as by collective agreement and not by the double condition of both collective and individual agreement. Furthermore, the choice must be left to the Member States at the time of implementing the directive.

L’UEAPME tient à rappeler sa position, selon laquelle la dérogation doit être possible aussi bien par accord individuel que par convention collective et non satisfaire à la double condition accord collectif et individuel. En outre, ce choix doit être laissé aux Etats membres lors de la mise en œuvre de la directive.

1. Implementation report

Article 24 a

UEAPME does not consider it justified to foresee a gradual suppression of the disposition on the opt out at the time of the drafting of the implementation report foreseen 5 years after the adoption of the revision of the directive.

1. Conclusion

UEAPME considers that the new proposal of the Commission on the organisation of working time does not take sufficient account of the current real situation of European enterprises, which need more flexibility to guarantee their competitiveness.

Too restrictive proposals of regulation like this one contribute to the unsatisfactory framework conditions for enterprises that hinder the EU in achieving the objectives set out in the Lisbon strategy.

Brussels, 2904/10/04

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