Reasonable Hours Summit – 4 September 2002, Discussion Paper

Outcome of Reasonable Hours Test Case

On 23 July 2002 the AIRC handed down their decision in the Reasonable Hours Test Case (the Working Hours Decision - Print PR072002). After considering all of the evidence put forward by the ACTU, the Full bench determined that the following should be inserted into awards "that specify hours of work and provide for overtime" (para 278):

1.1 Subject to clause 1.2 an employer may require an employee to work reasonable overtime at overtime rates.

1. any risk to employee health and safety;
2. the employee's personal circumstances including any family responsibilities;
3. the needs of the workplace or enterprise;
4. the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and
5. any other relevant matter.

In reaching their decision, the Commission has limited any concept of "reasonableness" with respect to hours of work to a combination of ordinary plus overtime hours. They have rejected the notion that ordinary hours may, in cases, be unreasonable. As such the Commission rejected the ACTU application to prohibit an employer requiring an employee to work unreasonable hours of work. In addition the Commission rejected a proposition that, where employees are required to work extreme hours they should be provided with additional time off to recover from that work.

[Extreme hours were defined, in summary, as:
an average of 48 hours per week over 12 weeks; or
an average of 54 hours per week over 8 weeks; or
an average of 60 hours per week over 4 weeks.]

In rejecting the ACTU claim for a prohibition on employers requiring employees to work unreasonable hours, the full bench stated that:

[A]wards presently regulate hours of work in various ways, typically, by prescribing a specified number of ordinary hours ... and providing for overtime. ... Most awards specify ordinary hours of 38 per week and employers and their full-time employees are able to plan on that basis. If the subclause were implemented in the terms in which it is sought, the concept of a specified number of ordinary hours for a week's work would be undermined. The certainty and predicability of the normal working week for award employees based on a number of hours would give way to an imprecise and less predictable test based on reasonableness. This would have serious consequences.

It is, we think, inherently inconsistent with the concept of quantified ordinary hours that a requirement to work ordinary hours may render an employer in breach of an award on the basis that the hours are "unreasonable hours of work". For instance, in a case where ordinary hours are quantified at 38 a week, it is, in our view, inappropriate that an employer be at risk of being in breach of subclause 1 because, having regard to, for example, "the employee's social and community life" 38 hours work in that week may be considered unreasonable.

It is apparent from the decision that the Commission was not prepared to countenance any argument that 38 hours per week might be unreasonable. It may be that they considered this a potential back door method for unions to argue for a reduction in ordinary working hours below the current 38 hour standard. The Commission was obviously not prepared to insert into awards any provision that may detract from the clear specification of ordinary hours. This however should not be taken to mean the Commission would not have been prepared to consider changes to ordinary hours or an absolute limit on hours in total. Their commentary with respect to the failure of the ACTU to lodge a claim to set a specific limit on hours hints at this. This does not mean a claim for reduced hours would succeed but it would meet the apparent criteria of clarity the Commission seemed to find lacking in this case.

In rejecting the ACTU claim for additional time off after the working of extreme hours, the Commission stated that:

We, however, are of the view that, if there is a problem of the magnitude contended for by the ACTU, the appropriate course is to fix the problem, not to provide "a beneficial recuperative effect". (emphasis added)

The Commission, in rejecting the notion of time off after working extreme hours indicated that the problem of the long hours themselves needs to be tackled.

Both lines of commentary from the Commission appear to indicate an acceptance of the problem of long working hours in Australia. The message they are sending however is to fix the problem at the root cause. The application of piecemeal solutions is not good enough if the real issue is to be tackled.

The decision's significance

The decision of the Commission was significant in three respects. First, it accepted the evidence that there is a problem in relation to working time in Australia. Second, the decision provides an important right for employees to refuse unreasonable overtime. Finally, the decision represents the most significant arbitrated decision of the Commission since the introduction of the Workplace Relations Act.

In accepting the ACTU's evidence the Commission has accepted that Australia has a problem in relation to the extent of unreasonable hours of work; that this problem is one of the worst in the world; and that the consequences of this problem are significant in terms of the physical and social impact on employees.

That Australia has for the first time through its National Industrial Tribunal acknowledged that it has a problem in relation to working time is an incredibly significant step in the history of hours of work in Australia. Acknowledgment of the problem demands a solution and in the acknowledgment the Commission has also made the demand.

The decision establishes an important employee right which did not previously exist in the award safety net. The decision of the Commission imports a standard of reasonableness in relation to working time which can only apply once an employee works in excess of ordinary hours of work. However, it is quite clear that:

the employees ordinary hours [are] to be taken into account and in deciding whether overtime is unreasonable...

Accordingly, in broad terms the test case standard reformulates the ACTU's claim to put in place a standard of reasonableness in relation to working time however in putting in place this standard it is taken as defined that ordinary hours or less are reasonable.

Finally this decision is significant in the context of the Commission's recent history. It is the first arbitrated test case standard that the Commission has made, other than in the Living Wage Cases, since the introduction of the Workplace Relations Act. It is therefore the first time the Commission has acted in a test case in the context where the Commonwealth Government's submission to the Commission had been to not act. That is, in this case the Commonwealth government asked the Commission to not make any test case standard. In the face of that, however, the Commission did make a test case standard.

What the decision doesn't do

While the decision provides clarity to the right of workers to refuse to work overtime where the working of that overtime would make the total hours worked unreasonable, the decision is limited in its applicability to awards that provide for ordinary time and overtime.

This limitation means that workers who have no specification or regulation of overtime still have no opportunity to say that their hours of work are unreasonable by virtue of additional hours they may be working (see for example teachers). Such employees may now be hit twice - they do not receive pay for the hours they work and they may have no mechanism - now afforded to others - to refuse to work such overtime.

In this respect the decision fails to come to grips with the problem of increasing unregulated hours of work.

The decision also fails to address the problem of extreme hours of work. By refusing the ACTU application, there is no incentive for employers to not work employees extreme hours. The decision does nothing to truly limit the working of long hours or tackle the continued growth in working hours in Australia.

Why we need to continue our campaign

Working hours in Australia will only be reduced if we take the initiative to limit the total number of hours worked. This is achievable though it will take time and will require unions to be prepared to discuss the issue with members.

A reduction in ordinary hours for workers will not, in itself, lead to a reduction in total hours. It will do no more than alter the mix of ordinary hours to overtime hours (whether these overtime hours are paid or not).

There are a range of initiatives that unions and their members can undertake to bring about a reduction in hours . While these will bring about some reduction in hours they will not bring about a limitation on the total number of hours being worked without an absolute limit being placed on those hours.

In embarking on the Reasonable Hours Test Case it was accepted that even a decision fully in our favour would not fix the long working hours problem in Australia. No matter which way the problem is considered, Australia continues to have some of the longest working hours in the OECD. That the USA may be worse does not making working hours in Australia OK.

Over the last few years different ACTU research into workplace issues has found the same thing: long hours and the increasing intensification of work is the overwhelming primary concern of workers. While issues such as changes to the WRA, the Building Royal Commission and living wage increases are at the centre of media, political and union debate, they barely register on the radar of working people. What our research does reveal is the sense of self-destruction that many people feel about work and its increasing intensity. Working hours does evoke passion across all demographics - blue collar/white collar, young and old, men and women. It is anticipated that the 2002 workplace survey will continue to reflect working hours as a critical workplace issue.

There are many complex reasons for longer working hours: increasing competitive pressures, changes in the nature of work, outsourcing, deregulation. The complexity of the reasons for long hours tells us that there is probably no simple solution. We should not however let this dissuade us from looking for neat solutions. What we need to do is recognise that working hours is a central issue for workers and we have a responsibility to address the issue. The ACTU's Reasonable Hours case is the first time in half a century that we have put the issue of hours before the AIRC as a defining issue. We've neglected our responsibility to defend what we'd already won. It's time to take that responsibility up again.

Ironically facing up to our responsibilities to our members over long hours will also give us unlimited opportunities to organise. Employers and the Federal Government deny the problem even exists. This flies completely in the face of what our workplace feedback is telling us. This issue isn't going away.

Data soon to be published from the Household, Income and Labour Dynamics in Australia (HILDA) Survey shows that more than half of those working more than 49 hours per week would prefer to work fewer hours - and that is without asking them about the effect this may have on their pay. It is anticipated that detailed information from HILDA will be available in October of this year.

Our Options

If we accept that working hours - and long working hours - remains a critical issue for our members today and we acknowledge that, while the Reasonable Hours Test Case put the issue on the table it will not solve the long working hours problem for working people, the question remains: what are we going to do to address the issue on a long term sustainable basis?

There are a number of options open to us:

1. The do nothing option.

This is, of course, the easiest of the options. If we say we have done all we can then we are abrogating our responsibility to provide leadership, to listen to what our members are saying and to tackle the hard issues.

To do nothing leaves the issue of long working hours as a workplace issue to perhaps be resolved in bargaining but also to be dealt with in a piecemeal approach.

This is the lazy option.

2. Run another test case

To run another test case in the Commission will not allow unions to walk away from the difficult decisions that need to be made about working hours - that is, are we this time prepared to argue for a limit on the total number of hours allowed to be worked in any one week? It will however, allow us to just hand the issue over to the Commission and walk away from the problem.

In addition, the last case took over 12 months to run and involved thousands of pages of research and submissions. The case came down to the advocacy skills of a small number of people. In that respect it lacked the passion of a public debate being put forward by a diverse range of individuals and organisations.

Any claim in the Commission to limit working hours will generate massive opposition. The debate will occur within the confines of the Commission and this is the limitation of this course. It will not engage members or involve them. It will give unions the opportunity of opting out.

What is apparent is that we need to be able to put forward a comprehensive strategy that will, within a determined time frame, achieve an outcome which we all agree is worth pursuing.

3. Seek a legislated outcome

This proposal seeks to build on the achievements made to date in the reasonable hours case and the work already undertaken overseas. What the European experience tells us is that it is possible to legislate to establish a limit on working hours. It is of value for us to consider such an option here in Australia.

Should we go down this path we are not going to achieve success over night. What we do have the opportunity to do however is determine a timetable and structured implementation of such a cap.

The introduction of a cap on total working hours is not new. The ETU in Victoria have had a cap on total working hours for some time. That cap is now accepted and the battle would be in attempting to take such a cap away.

How it might work:

• Seek a legislative cap on total working hours of (say) 48 hours per week.
• Allow for the averaging of hours over a specified period - eg 8 weeks.
• Provide for exemptions to the averaging - ie allow for longer periods in specified industries/areas where there is a demonstrable need.
• Provide for emergency relief from the cap but only in conjunction with time off to recover from the additional hours (similar to the extreme hours relief sought in the Reasonable Hours Test Case).
• Allow for the phasing in of the new hours regime over a period of years to enable industries and/or enterprises to develop new rostering arrangements, recruit and train additional staff etc or negotiate appropriate agreements with unions.
• Allow for exemption of owner/managers, senior administrators (how do we define)
• Link to improvements in health and safety
• Seek a reduction in ordinary hours.
• The possibility of requiring employees to take annual leave as it accrues as the non-taking of annual leave adds to the working hours problem.

What will this achieve?

• Will bring about a real reduction in working hours from the current level of 41.5 hours.
• Will reduce the number of workers working more than 50 hours per week.
• Will limit, in some instances, the income earning capacity of some workers.
• Will increase the time people have to participate in activities outside the workplace.

How do we go about achieving this?

• Start a process of political campaigning
• Form alliances with key community groups
• Get it onto the ALP platform
• Educate members, have the discussion with members. Most workers feel powerless to say no to the demands made by the employer to work excessive hours. A legislated entitlement will empower them.
• Make sure we have buy in to the strategy from all unions. To do so we have to understand and address their concerns or determine how the strategy may need to be adapted.
• In addition to buy in, we need all unions spruiking the message.

Next Steps

Develop an agreed unions' position arising from this and the next meeting of affiliates to take to a proposed summit. A small working group may need to be established to do this.

This position can then be taken to a National Hours Summit. The participants in the Summit would include unions but would also include government, political parties, employers, employer organisations, and community groups.

The purpose of the summit is to kick off the national debate. It will allow the union movement to continue to lead the agenda on an issue where it has largely already set the agenda. All sorts of interests in the community would be coming together at the behest of the union movement to try and come up with a solution to a now universally recognised problem.

To that end the summit has the ability to publicly confirm the findings of the Commission that working time in Australia is a problem which demands a solution.

The Summit will also provide a public platform for the union movement to air its proposed new hours position whatever that position may be. In that way we can continue the process of leading the debate.

International Experience

The Full Bench, in their decision on the ACTU application noted the breadth of material which examined overseas experiences. They also noted that the overseas regulation is based on a limitation on the total number of hours worked.

While they were dismissive, to a degree, of the UK material because of the opt out provisions contained in the UK legislation, no evidence was put to the Commission that would indicate that there is a high take up rate of the opt out provisions.

The European Working Time Directive of 23 November 1993 as amended includes that, subject to certain exceptions and averaging provisions, the number of hours worked is not to exceed 48 a week. The regulation in France to which the ACTU points is a 35 hour week. The form of regulation in the United Kingdom to which the ACTU refers is The Working Time Regulations 1998, which fix an average of 48 hours as the maximum number of hours that may be worked in a week (subject to various exceptions). The ACTU is not claiming a 48 hour week maximum or a 35 hour week. In these circumstances, we find the information and views about the regulation of hours in the European Union of limited relevance.
We also note the evidence that a number of countries outside the European Union have regulated the maximum number of hours that may be worked (for example, Norway and Turkey). None of the regulation we have been referred to, however, is the same as that sought by the ACTU. On the other hand, we note that there is evidence that a number of countries have not legislated for a maximum working week (for example, the United States and New Zealand).

Material relating to the provisions as they apply in France, the UK and the European Directive form part of this documentation.

UK WORKING TIME REGULATIONS - Explanatory Material

SECTION 2: WORKING TIME LIMITS

Workers cannot be forced to work for more than 48 hours a week on average. Working time includes travelling where it is part of the job, working lunches and job-related training.

Working time does not include travelling between home and work, lunch breaks, evening classes or day-release courses.

The average weekly working time is normally calculated over 17 weeks. This can be longer in certain situations (26 weeks) and employers can agree to extend it (up to 52 weeks).

Workers can agree to work longer than the 48-hour limit. An agreement must be in writing and signed by the worker. This is called an opt-out. It does not need to be renewed.

An employer need only maintain a record of workers who have signed an opt-out. No further records for these workers are required.

Workers can cancel the opt-out agreement whenever they want, although they must give their employer at least seven days' notice, or longer (up to three months) if this has been agreed.

The working time limits do not apply if workers can decide how long they work.

Employers must check:

• What counts as working time.
• How much time each worker spends working.
• If a worker is working more than an average of 48 hours a week, how you can reduce his or her hours or whether the worker wishes to sign an opt-out from the working time limit
• What records need to be kept.

More Detailed Information

If you are an employer, you must take all reasonable steps to ensure that workers are not required to work more than an average of 48 hours a week, unless they have signed an opt-out.

What is working time?

The Working Time Regulations state that working time is when someone is "working, at his employer's disposal and carrying out his activity or duties".

This includes:

• Working lunches, such as business lunches. When a worker is doing job-related training that is directly related to his or her job.
• Time spent abroad working if a worker works for an employer who carries on business in Great Britain.

This does not include:

• Routine travel between home and work.
• Rest breaks when no work is done.
• Time spent travelling outside normal working time.
• Training such as non-job-related evening classes or day-release courses.

On 3 October 2000 a judgment was passed at the European Court of Justice in a case concerning the status of 'on-call' time .* The judgement relates to doctors employed in primary health care teams though a similar approach may now be taken in other areas. It indicates that 'on-call' time will be working time when a worker is required to be at their place of work. When a worker is away from the workplace when 'on-call' and accordingly free to pursue leisure activities, on-call time is not 'working time'.

How is the average weekly working time calculated?

The number of hours worked each week should be averaged out over 17 weeks or however long a worker has been working for their employer if this is less than 17 weeks. This period of time is called the 'reference period'.

Workers and employers can agree to calculate the average weekly working time over a period of up to 52 weeks under a workforce or collective agreement. The reference period may also be extended to 26 weeks in other circumstances [more].

The average weekly working time is calculated by dividing the number of hours worked by the number of weeks over which the average working week is being calculated, for example 17.

When calculating the average weekly working time, if the worker is away during the reference period because he or she is taking paid annual leave, maternity leave, or is off sick you will need to make up for this time in your calculation. Do this by adding the hours worked during the days which immediately followed the 17-week period - use the same number of days as those when work was missed.

Example 1:

A worker has a standard working week of 40 hours and does overtime of 12 hours a week for the first 10 weeks of the 17-week reference period. No leave is taken during the reference period.

The total hours worked is:

17 weeks of 40 hours and 10 weeks of 12 hours of overtime

(17 x 40) + (10 x 12) = 800

Therefore their average (total hours divided by number of weeks):

800 /17= 47.1 hours a week

The average limit of 48 hours has been complied with.

Example 2:

A worker has a standard working week of 40 hours (8 hours a day) and does overtime of 8 hours a week for the first 12 weeks of the 17-week reference period. 4 days' leave are also taken during the reference period.

The total hours worked in the reference period is:

16 weeks and 1 day (40 hours a week and 8 hours a day) and 12 weeks of 8 hours of overtime

(16 x 40) + (1 x 8) + (12 x 8) = 744

Add the time worked to compensate for the 4-day leave, taken from the first 4 working days after the reference period. The worker does no overtime, so 4 days of 8 hours (4 x 8 = 32 ) should be added to the total.

Therefore their average is (total hours divided by number of weeks):

(744 + 32) /17 = 45.6 hours per week

The average limit of 48 hours has been complied with. What if a worker agrees to work longer hours?

An individual worker may agree to work more than 48 hours a week. If so, he or she should sign an opt-out agreement, which they can cancel at any time. The employer and worker can agree how much notice is needed to cancel the agreement, which can be up to three months. Otherwise the worker needs to give a minimum of seven days' notice.

Employers cannot force a worker to sign an opt-out. Any opt-out must be agreed to. Workers cannot be fairly dismissed or subjected to detriment for refusing to sign an opt-out.

Employers must keep a record of who has agreed to work longer hours.

Opt-out agreement - Working Time Regulations
I (name) agree that I may work for more than an average of 48 hours a week. If I change my mind, I will give my employer (amount of time - up to three months) notice in writing to end this agreement.

Signed....................

Dated........................

European Union Directive

Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time.

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 118a thereof, Having regard to the proposal from the Commission(1) , In cooperation with the European Parliament(2) , Having regard to the opinion of the Economic and Social Committee(3),

Whereas Article 118a of the Treaty provides that the Council shall adopt, by means of directives, minimum requirements for encouraging improvements, especially in the working environment, to ensure a better level of protection of the safety and health of workers;

Whereas, under the terms of that Article, those directives are to avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings;

Whereas the provisions of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work(4) are fully applicable to the areas covered by this Directive without prejudice to more stringent and/or specific provisions contained therein;

Whereas the Community Charter of the Fundamental Social Rights of Workers, adopted at the meeting of the European Council held at Strasbourg on 9 December 1989 by the Heads of State or of Government of 11 Member States, and in particular points 7, first subparagraph, 8 and 19, first subparagraph, thereof, declared that:

'7. The completion of the internal market must lead to an improvement in the living and working conditions of workers in the European Community. This process must result from an approximation of these conditions while the improvement is being maintained, as regards in particular the duration and organization of working time and forms of employment other than open-ended contracts, such as fixed-term contracts, part-time working, temporary work and seasonal work.

'8. Every worker in the European Community shall have a right to a weekly rest period and to annual paid leave, the duration of which must be progressively harmonized in accordance with national practices.

'19. Every worker must enjoy satisfactory health and safety conditions in his working environment. Appropriate measures must be taken in order to achieve further harmonization of conditions in this area while maintaining the improvements made.';

Whereas the improvement of workers' safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations;

Whereas this Directive is a practical contribution towards creating the social dimension of the internal market;

Whereas laying down minimum requirements with regard to the organization of working time is likely to improve the working conditions of workers in the Community;

Whereas, in order to ensure the safety and health of Community workers, the latter must be granted minimum daily, weekly and annual periods of rest and adequate breaks; whereas it is also necessary in this context to place a maximum limit on weekly working hours;

Whereas account should be taken of the principles of the International Labour Organization with regard to the organization of working time, including those relating to night work;

Whereas, with respect to the weekly rest period, due account should be taken of the diversity of cultural, ethnic, religious and other factors in the Member States; whereas, in particular, it is ultimately for each Member State to decide whether Sunday should be included in the weekly rest period, and if so to what extent;

Whereas research has shown that the human body is more sensitive at night to environmental disturbances and also to certain burdensome forms of work organization and that long periods of night work can be detrimental to the health of workers and can endanger safety at the workplace;

Whereas there is a need to limit the duration of periods of night work, including overtime, and to provide for employers who regularly use night workers to bring this information to the attention of the competent authorities if they so request;

Whereas it is important that night workers should be entitled to a free health assessment prior to their assignment and thereafter at regular intervals and that whenever possible they should be transferred to day work for which they are suited if they suffer from health problems;

Whereas the situation of night and shift workers requires that the level of safety and health protection should be adapted to the nature of their work and that the organization and functioning of protection and prevention services and resources should be efficient;

Whereas specific working conditions may have detrimental effects on the safety and health of workers; whereas the organization of work according to a certain pattern must take account of the general principle of adapting work to the worker;

Whereas, given the specific nature of the work concerned, it may be necessary to adopt separate measures with regard to the organization of working time in certain sectors or activities which are excluded from the scope of this Directive;

Whereas, in view of the question likely to be raised by the organization of working time within an undertaking, it appears desirable to provide for flexibility in the application of certain provisions of this Directive, whilst ensuring compliance with the principles of protecting the safety and health of workers;

Whereas it is necessary to provide that certain provisions may be subject to derogations implemented, according to the case, by the Member States or the two sides of industry; whereas, as a general rule, in the event of a derogation, the workers concerned must be given equivalent compensatory rest periods,

HAS ADOPTED THIS DIRECTIVE:

SECTION I SCOPE AND DEFINITIONS

Article 1

Purpose and scope

1. This Directive lays down minimum safety and health requirements for the organization of working time.
2. This Directive applies to:

minimum periods of daily rest, weekly rest and annual leave, to breaks and maximum weekly working time; and

certain aspects of night work, shift work and patterns of work.

3. This Directive shall apply to all sectors of activity, both public and private, within the meaning of Article 2 of Directive 89/391/EEC, without prejudice to Article 17 of this Directive, with the exception of air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training;
4. The provisions of Directive 89/391/EEC are fully applicable to the matters referred to in paragraph 2, without prejudice to more stringent and/or specific provisions contained in this Directive.

Article 2

Definitions

For the purposes of this Directive, the following definitions shall apply:

1. working time shall mean any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice;
2. rest period shall mean any period which is not working time;
3. night time shall mean any period of not less than seven hours, as defined by national law, and which must include in any case the period between midnight and 5 a. m.;
4. night worker shall mean:

1. on the one hand, any worker, who, during night time, works at least three hours of his daily working time as a normal course; and
2. on the other hand, any worker who is likely during night time to work a certain proportion of his annual working time, as defined at the choice of the Member State concerned:

1. by national legislation, following consultation with the two sides of industry; or
2. by collective agreements or agreements concluded between the two sides of industry at national or regional level;

5. shift work shall mean any method of organizing work in shifts whereby workers succeed each other at the same work stations according to a certain pattern, including a rotating pattern, and which may be continuous or discontinuous, entailing the need for workers to work at different times over a given period of days or weeks;
6. shift worker shall mean any worker whose work schedule is part of shift work.

SECTION II MINIMUM REST PERIODS - OTHER ASPECTS OF THE ORGANIZATION OF WORKING TIME

Article 3

Daily rest

Member States shall take the measures necessary to ensure that every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24-hour period.

Article 4

Breaks

Member States shall take the measures necessary to ensure that, where the working day is longer than six hours, every worker is entitled to a rest break, the details of which, including duration and the terms on which it is granted, shall be laid down in collective agreements or agreements between the two sides of industry or, failing that, by national legislation.

Article 5

Weekly rest period

Member States shall take the measures necessary to ensure that, per each seven-day period, every worker is entitled to a minimum uninterrupted rest period of 24 hours plus the 11 hours' daily rest referred to in Article 3.
The minimum rest period referred to in the first subparagraph shall in principle include Sunday.
If objective, technical or work organization conditions so justify, a minimum rest period of 24 hours may be applied.

Article 6

Maximum weekly working time

Member States shall take the measures necessary to ensure that, in keeping with the need to protect the safety and health of workers:

1. the period of weekly working time is limited by means of laws, regulations or administrative provisions or by collective agreements or agreements between the two sides of industry;
the average working time for each seven-day period, including overtime, does not exceed 48 hours.

Article 7

Annual leave

1. Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.
2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

SECTION III NIGHT WORK - SHIFT WORK - PATTERNS OF WORK

Article 8

Length of night work

Member States shall take the measures necessary to ensure that:

1. normal hours of work for night workers do not exceed an average of eight hours in any 24-hour period;
2. night workers whose work involves special hazards or heavy physical or mental strain do not work more than eight hours in any period of 24 hours during which they perform night work.
   For the purposes of the aforementioned, work involving special hazards or heavy physical or mental strain shall be defined by national legislation and/or practice or by collective agreements or agreements concluded between the two sides of industry, taking account of the specific effects and hazards of night work.

Article 9

Health assessment and transfer of night workers to day work

1. Member States shall take the measures necessary to ensure that:

1. night workers are entitled to a free health assessment before their assignment and thereafter at regular intervals;
2. night workers suffering from health problems recognized as being connected with the fact that they perform night work are transferred whenever possible to day work to which they are suited.

2. The free health assessment referred to in paragraph 1 (a) must comply with medical confidentiality.
3. The free health assessment referred to in paragraph 1 (a) may be conducted within the national health system.

Article 10

Guarantees for night-time working

Member States may make the work of certain categories of night workers subject to certain guarantees, under conditions laid down by national legislation and/or practice, in the case of workers who incur risks to their safety or health linked to night-time working.

Article 11

Notification of regular use of night workers

Member States shall take the measures necessary to ensure that an employer who regularly uses night workers brings this information to the attention of the competent authorities if they so request.

Article 12

Safety and health protection

Member States shall take the measures necessary to ensure that:

1. night workers and shift workers have safety and health protection appropriate to the nature of their work;
2. appropriate protection and prevention services or facilities with regard to the safety and health of night workers and shift workers are equivalent to those applicable to other workers and are available at all times.

Article 13

Pattern of work

Member States shall take the measures necessary to ensure that an employer who intends to organize work according to a certain pattern takes account of the general principle of adapting work to the worker, with a view, in particular, to alleviating monotonous work and work at a predetermined work-rate, depending on the type of activity, and of safety and health requirements, especially as regards breaks during working time.

SECTION IV MISCELLANEOUS PROVISIONS

Article 14

More specific Community provisions

The provisions of this Directive shall not apply where other Community instruments contain more specific requirements concerning certain occupations or occupational activities.

Article 15

More favourable provisions

This Directive shall not affect Member States' right to apply or introduce laws, regulations or administrative provisions more favourable to the protection of the safety and health of workers or to facilitate or permit the application of collective agreements or agreements concluded between the two sides of industry which are more favourable to the protection of the safety and health of workers.

Article 16

Reference periods

Member States may lay down:

1. for the application of Article 5 (weekly rest period), a reference period not exceeding 14 days;
2. for the application of Article 6 (maximum weekly working time), a reference period not exceeding four months.
   The periods of paid annual leave, granted in accordance with Article 7, and the periods of sick leave shall not be included or shall be neutral in the calculation of the average;
3. for the application of Article 8 (length of night work), a reference period defined after consultation of the two sides of industry or by collective agreements or agreements concluded between the two sides of industry at national or regional level.

   If the minimum weekly rest period of 24 hours required by Article 5 falls within that reference period, it shall not be included in the calculation of the average.

Article 17

Derogations

1. With due regard for the general principles of the protection of the safety and health of workers, Member States may derogate from Article 3, 4, 5, 6, 8 or 16 when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves, and particularly in the case of:

1. managing executives or other persons with autonomous decision-taking powers;
2. family workers; or
3. workers officiating at religious ceremonies in churches and religious communities.

2. Derogations may be adopted by means of laws, regulations or administrative provisions or by means of collective agreements or agreements between the two sides of industry provided that the workers concerned are afforded equivalent periods of compensatory rest or that, in exceptional cases in which it is not possible, for objective reasons, to grant such equivalent periods of compensatory rest, the workers concerned are afforded appropriate protection:

2.1. from Articles 3, 4, 5, 8 and 16:

1. in the case of activities where the worker's place of work and his place of residence are distant from one another or where the worker's different places of work are distant from one another;
2. in the case of security and surveillance activities requiring a permanent presence in order to protect property and persons, particularly security guards and caretakers or security firms;
3. in the case of activities involving the need for continuity of service or production, particularly:

1. services relating to the reception, treatment and/or care provided by hospitals or similar establishments, residential institutions and prisons;
2. dock or airport workers;
3. press, radio, television, cinematographic production, postal and telecommunications services, ambulance, fire and civil protection services;
4. gas, water and electricity production, transmission and distribution, household refuse collection and incineration plants;
5. industries in which work cannot be interrupted on technical grounds;
6. research and development activities;
7. agriculture;

1. where there is a foreseeable surge of activity, particularly in:

1. agriculture;
2. tourism;
3. postal services;

2.2. from Articles 3, 4, 5, 8 and 16:

1. in the circumstances described in Article 5 (4) of Directive 89/391/EEC;
2. in cases of accident or imminent risk of accident;

2.3. from Articles 3 and 5:

1. in the case of shift work activities, each time the worker changes shift and cannot take daily and/or weekly rest periods between the end of one shift and the start of the next one;
2. in the case of activities involving periods of work split up over the day, particularly those of cleaning staff.

3. Derogations may be made from Articles 3, 4, 5, 8 and 16 by means of collective agreements or agreements concluded between the two sides of industry at national or regional level or, in conformity with the rules laid down by them, by means of collective agreements or agreements concluded between the two sides of industry at a lower level.

   Member States in which there is no statutory system ensuring the conclusion of collective agreements or agreements concluded between the two sides of industry at national or regional level, on the matters covered by this Directive, or those Member States in which there is a specific legislative framework for this purpose and within the limits thereof, may, in accordance with national legislation and/or practice, allow derogations from Articles 3, 4, 5, 8 and 16 by way of collective agreements or agreements concluded between the two sides of industry at the appropriate collective level.

   The derogations provided for in the first and second subparagraphs shall be allowed on condition that equivalent compensating rest periods are granted to the workers concerned or, in exceptional cases where it is not possible for objective reasons to grant such periods, the workers concerned are afforded appropriate protection.

Member States may lay down rules:

• for the application of this paragraph by the two sides of industry, and
• for the extension of the provisions of collective agreements or agreements concluded in conformity with this paragraph to other workers in accordance with national legislation and/or practice.

4. The option to derogate from point 2 of Article 16, provided in paragraph 2, points 2.1. and 2.2. and in paragraph 3 of this Article, may not result in the establishment of a reference period exceeding six months.

However, Member States shall have the option, subject to compliance with the general principles relating to the protection of the safety and health of workers, of allowing, for objective or technical reasons or reasons concerning the organization of work, collective agreements or agreements concluded between the two sides of industry to set reference periods in no event exceeding 12 months.

Before the expiry of a period of seven years from the date referred to in Article 18 (1) (a), the Council shall, on the basis of a Commission proposal accompanied by an appraisal report, re-examine the provisions of this paragraph and decide what action to take.

Article 18

Final provisions

1. Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive by 23 November 1996, or shall ensure by that date that the two sides of industry establish the necessary measures by agreement, with Member States being obliged to take any necessary steps to enable them to guarantee at all times that the provisions laid down by this Directive are fulfilled.
2. (i) However, a Member State shall have the option not to apply Article 6, while respecting the general principles of the protection of the safety and health of workers, and provided it takes the necessary measures to ensure that:

   • no employer requires a worker to work more than 48 hours over a seven-day period, calculated as an average for the reference period referred to in point 2 of Article 16, unless he has first obtained the worker's agreement to perform such work,

   • no worker is subjected to any detriment by his employer because he is not willing to give his agreement to perform such work,

   • the employer keeps up-to-date records of all workers who carry out such work,

   • the records are placed at the disposal of the competent authorities, which may, for reasons connected with the safety and/or health of workers, prohibit or restrict the possibility of exceeding the maximum weekly working hours,

   • the employer provides the competent authorities at their request with information on cases in which agreement has been given by workers to perform work exceeding 48 hours over a period of seven days, calculated as an average for the reference period referred to in point 2 of Article 16.

Before the expiry of a period of seven years from the date referred to in (a), the Council shall, on the basis of a Commission proposal accompanied by an appraisal report, re-examine the provisions of this point (i) and decide on what action to take.

1. (ii) Similarly, Member States shall have the option, as regards the application of Article 7, of making use of a transitional period of not more than three years from the date referred to in (a), provided that during that transitional period:

   • every worker receives three weeks' paid annual leave in accordance with the conditions for the entitlement to, and granting of, such leave laid down by national legislation and/or practice, and

   • the three-week period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

2. Member states shall forthwith inform the Commission thereof.

2. When Member States adopt the measures referred to in paragraph 1, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member states.
3. Without prejudice to the right of Member States to develop, in the light of changing circumstances, different legislative, regulatory or contractual provisions in the field of working time, as long as the minimum requirements provided for in this Directive are complied with, implementation of this Directive shall not constitute valid grounds for reducing the general level of protection afforded to workers.
4. Member States shall communicate to the Commission the texts of the provisions of national law already adopted or being adopted in the field governed by this Directive.
5. Member States shall report to the Commission every five years on the practical implementation of the provisions of this Directive, indicating the viewpoints of the two sides of industry.

   The Commission shall inform the European Parliament, the Council, the Economic and Social Committee and the Advisory Committee on Safety, Hygiene and Health Protection at Work thereof.

6. Every five years the Commission shall submit to the European Parliament, the Council and the Economic and Social Committee a report on the application of this Directive taking into account paragraphs 1, 2, 3, 4 and 5.

Article 19

This Directive is addressed to the Member States.
Done at Brussels, 23 November 1993.
For the Council
The President
M. SMET

The law on negotiated workweek reduction in France

• General introduction to the law
• The 5 main provisions of the law
• The negotiated reduction in working time as at 21/05/2001

General introduction to the law

Workweek reduction : more free time and more jobs

Efforts to reduce the workweek - a major tool for stimulating job growth - have been both flexible and firm : firm, because the 13 June 1998 law capped weekly hours at 35 ; flexible, because the method proposed relies on negotiations - one company and one branch at a time - to work out the nuts and bolts of reducing work hours.

Though the spark for much controversy and debate, the 13 June 1998 law has also triggered unprecedented levels of communication between business and labour, organizational innovations and negotiations. The CEOs, labour union representatives and employees invited to negotiate demonstrated realism and innovative flair in devising a wide range of "customized" means for achieving their goal while respecting both the aspirations of employees and the needs of companies.

Fuller employment

Workweek reduction has substantially eased the precariousness of employment by making it possible for workers to move from interim or fixed-term contracts to permanent positions, and by promoting voluntary part-time work. A significant proportion of young people and hard-to-place unemployed adults have benefited from the new hiring. Finally, the shorter work hours have increased the versatility and skills of workers and spurred new progress in skills-enhancement training.

Decentralized negotiations gave rise to improvements that were generally considered satisfactory by both sides, while offering flexibility to all parties and creating specific solutions in every case.

Agreements offer new flexibility for both employees and companies

Negotiations have focused more sharply on ways to reconcile work schedules with social, family and school-related demands. Employee surveys conducted after workers have had a chance to adjust to the new hours indicate widespread satisfaction : 85% of employees report that the shift to a 35-hour workweek was a good thing for them personally, improving their personal and family life (86%), allowing them more time for personal growth and development (74%), helping them better organize their schedules (68%) and creating better morale at work (50%).

For companies, the ability to factor in fluctuations and seasonal changes in demand has enabled them to tailor the organization of their business to customer needs. 84% of chief executive officers who signed a work hour reduction agreement under the first law of 13 June 1998 are satisfied with the results : 81% report that the shorter workweek has resulted in better labour relations in their company and 65% believe it has improved the way they organize their work.

The 19 January 2000 law incorporates innovations and extends and expands negotiations. At the same time it reflects the government's desire to continue implementation of a balanced social pact, one that fuels advances for employees and competitiveness for companies.

A law based on negotiated agreements, to win the support of all parties

As promised by the French government, most of the provisions of the second law are based on the negotiations held over the last two years. The law proposes a coherent framework for implementing work hour rules for all types of employees (managers, part-timers, etc.). It features simplified tools (annualization, etc.) tailored to the needs of production and service businesses. The law introduces new options for flexibility and new guarantees for companies and employees.

Drawing on successful employment agreements, the second law is designed to facilitate new negotiations and the creation or preservation of hundreds of thousands of jobs over the next few years. Social security tax breaks are contingent on the negotiation and signature of agreements by dominant labour unions or labour unions approved by the majority of employees.

An adjustment period allows time for the completion of negotiations under optimal conditions, while leaving the 35-hour cap firmly in place.

Three objectives

The current economic climate increasingly forces businesses and employees to innovate, notably in terms of how they organize their work. With the introduction of the 35-hour workweek, changes will be made with the aim of achieving three objectives:

• job creation
• competitiveness
• improved working conditions and a better balance between career and personal life.

The people who have already negotiated agreements have paved the way for shorter work hours. The second law both consolidates their accords and provides new options and guarantees. In addition to helping finance workweek reduction through permanent social security tax breaks, the law favours economic and social balance in agreements, supports competitiveness and promotes employment.

Because it affects the way companies function, the way work is organized and the daily lives of employees, the reduction of the workweek to 35 hours is a major challenge for everyone. Those who have already signed an agreement must, of course, put it into practice and adapt their accord as needed to the new possibilities offered by the second law. Those who have not yet signed one must begin negotiating now. The most thorough, direct and concrete support system possible has been set up for assistance:

• The labour office in each French administrative department or region is available to negotiators, to inform them and support them throughout their discussions ;
• Consultants, co-financed by the government, are available as needed to help negotiators diagnose their situation, find solutions tailored to their company and facilitate the establishment of a 35-hour week ;
• A telephone information service (16,000 calls a month) and a question & answer section on the Internet site (1,600 messages a month) are available to answer questions and supply exact, personalized information ;
• Finally, a French-language guide entitled Everything you need to know about workweek reduction, can be downloaded from our Web site. It is designed to be both clear and exhaustive and to answer the questions of everyone who may be involved in negotiations.

The 5 main provisions of the law

1. The law confirms a new, legal workweek limit of 35 hours

   Effective 1 January 2000 for companies with more than 20 employees and 1 January 2002 for all others, the new legal workweek is set at 35 hours. In addition, the law specifies an annual work hour total that is equivalent to an average of 35 hours, based on the number of weeks worked. Theoretically, the total should not exceed 1,600 hours. This annual figure applies when work hours are calculated on a yearly basis.

2. The law spells out the rules governing overtime

   Weekly overtime begins accruing with the 36th hour of work. For annualised employment contracts entered into after 1 February 2000 overtime begins with the 1,600th hour. The law specifies the impact of overtime on both companies and employees.

3. The law sets forth new arrangements for organizing work hours

   The above arrangements, which can be worked out through collective bargaining and which meet the needs of companies while strengthening guarantees for employees, include the following: annualization of work hours ; the reduction of the number of days worked per week; various types of part-time options ; intermittent work; work-hour savings accounts ; specific arrangements for managers, based on how independently they function ; and provisions for skills-enhancement training, to be dispensed in part during the hours freed up by the 35-hour workweek.

4. The law introduces new tax breaks on employer contributions

   The new tax breaks on employer contributions not only attempt to balance the burden of financing the transition to a 35-hour workweek ; they also aim to lower the cost of employing low- and medium-paid personnel, in order to stimulate job growth. Companies can also negotiate these tax breaks.

5. The law creates a wage guarantee system for minimum-wage employees

   The guarantee aims to prevent any decline in the compensation of minimum-wage employees whose work hours are reduced and to raise their purchasing power in the long run.

   The negotiated reduction in working time as at 21/05/2001

   On the 21 May 2001 the DARES (Department for Co-ordination and Statistical Research) numbered 184,543 establishments which had moved over to 35 hours. These were grouped into 73,419 companies, with 6,805,704 employees, and have forecast creating or preserving 356,822 jobs.

   Out of the 63,112 companies which have benefited from assistance:

   • 31,855 companies claimed in terms of the first law on the reduction of working time within the framework of the law of 13th June 1998,
   • 29,330 within the framework of the second law on the reduction of working time. Out of these 767 are new companies created after the 31st December 1999, with 6,210 employees.

   Small companies (20 employees or less) represent 48.7 % of the total, 4.4 % of the personnel employed and 8.4 % of the forecast creation of jobs. They are more numerous amongst those having moved to 35 hours since 2000 (60.6 %) than amongst the companies which had reduced working time prior to that date (38.4 %).

   The tertiary sector dominates with two companies out of three. A little less than a quarter of the companies that have moved over to 35 hours are industrial and 8.5 % are from the construction sector.

   Nine times out of ten, the new working hours are 35 hours exactly, when this is defined on a weekly basis or lies between 1560 and 1600 hours if it is calculated over the full year.

   More than two companies out of three have reduced working time by means of a company agreement, the others (35.5 %) within the framework of an extended branch agreement looking to "direct access". This latter procedure is, naturally, much more widespread amongst small companies and, in particular, where their working time was reduced from 2000, thus, benefiting from incentive assistance, 72.3 % of the total. In general, it is more frequent for the move to 35 hours to have been carried out within the framework of the second law on the reduction of working time (RTT) (53.1 % of the companies) than within that of the first law (21.9 %).

   The approval procedure by referendum is, also, increasing: close to two thirds of the companies having moved to 35 hours went by this route from 2000, as against 37.7 % previously.

   Undertakings in terms of jobs divides up as follows: 74.6 % forecast creating jobs, 19.7 % preserving jobs and 5.7 % both creating and preserving jobs. These proportions are de 61.3, 32.0 and 6.7 % respectively amongst those companies moving to 35 hours from 2000.

   Finally, according to the Acemo survey, at the end of the first quarter of 2001, over 60 % of the full time employees of companies with more than 10 employees were working less than 36 hours per week as against 42.5 % one year previously.