Working time in the fire service and the Working Time Directive

1. Working time in the fire service and the Working Time Directive EPSU Firefighters Network Vienna 10-12 June 2010

2. Working Time Directive Consultation • December 2008 – European Parliament voted by large majority in favour of revision of Working Time Directive to abolish the opt-out and recognise on-call time as working time • April 2009 – failure of conciliation process to resolve differences between European Parliament and European Council and so Working Time Directive remains in force unchanged • March 2010 – European Commission publishes new Communication on working time.

3. Working Time Directive Consultation • First phase consultation with social partners has finished and now up to European Commission to decide if action is necessary then it will launch a second-phase consultation over any proposal for legislation • At the same time as the current review the Commission is carrying out an impact assessment of the application of the Directive and a study of the economic and social aspects

4. Commission’s rationale • The Commission’s Communication says that: “The protection of workers’ health and safety must continue to be seen as the primary goal of any working time regulation.’” (our italics) • However, it says the focus of the debate has changed and that there are other goals to consider - “improving productivity, enhancing competitiveness, supporting work-life balance and confronting the growing diversity of preferences and working patterns.” • EPSU would challenge the idea that increased productivity and competitiveness can’t be achieved within the current rules on working time and, in fact, fair competition with the EU requires an abolition of the opt-out.

5. Critique of Communication • Very weak analysis – rag bag of facts to try to justify need to re-evaluate Working Time Directive – wrong on shorter working hours, fails to acknowledge increase in length of working life • Fails to recognise failure of Commission to follow-up implementation issues, publish implementation report or prosecute countries failing to implement the directive • Talks of negotiation but offers absolutely nothing and calls for “balanced and innovative” approach to try to undermine the trade union position on opt-out and on-call time as retrograde

6. Questions asked by the Commission (1) • How could we develop balanced and innovative proposals regarding the organization of working time that move beyond the unsuccessful debates of the last conciliation process? What is your long-term vision for the organization of working time in a modern setting? • Health and safety should remain the central issue even if the idea of a “modern setting” implies the need for greater flexibility. At this stage it remains unclear how broadening the issues under review could help resolve the central conflicts around the opt-out, on-call time and the reference period for calculating the working week. • “Balanced and innovative proposals” could be developed, are being negotiated by EPSU affiliates across Europe, but any initiatives at European level would be on the condition that there is basic legislation that is effectively implemented and protects workers’ health and safety.

7. Questions asked by the Commission (2) What impact do you think that changes in working patterns and practices have had on the application of the Directive? Have any particular provisions become obsolete, or more difficult to apply? • While there may have been a growth in atypical working patterns, it is unclear that these have developed so strongly since the Directive was drawn up or that they require a significantly different approach. • It may be more of a challenge to monitor working hours when there is increased flexibility and work done away from a “normal” workplace but this is neither new nor a reason to dilute the legislation. • Claims about the new flexible working practices of what the Communication describes as “knowledge workers” should not be used to deflect from the need to maintain and improve the protection afforded to millions of “ordinary workers”

8. Questions asked by the Commission (3) What is your experience to date on the overall functioning of the Working Time Directive? What has been your experience regarding the key issues – 48-hour maximum, on-call time, reference period and rest periods? • The Communication says that five countries now make use of the opt-out generally while 10 use it in specific sectors. The spread of the sectoral opt-out is no doubt related to the rulings on on-call time with the opt-out providing a quick and easy solution to what in some circumstances may be the need to make major changes to working patterns and practices. • The fact that five countries use the opt-out more widely raises serious questions about unfair competition – in other areas such as state aid and implementing the internal market, the Commission is insistent on there being a level playing field – why not working time?

9. Questions asked by the Commission (4) Do you agree with the analysis contained in this paper as regards the organization and regulation of working time in the EU? Are there any further issues which you consider should be added? • The Communication talks about “fundamental changes” to working time practices and the reduction, polarization and de-standardisation of working hours. We would question how “fundamental” these have been and whether they justify major changes to the Directive. • The reduction in working hours has not been significant, with very few changes in recent years and some examples of increases in basic working hours. • The notion of polarization really hides the basic fact that one in 10 employees still works on average more than 48 hours a week. • De-standardisation may well be spreading but there is potential for considerable flexibility within framework set by the Directive.

10. Questions asked by the Commission (5) • Do you consider that the Commission should launch an initiative to amend the Directive? If so, do you agree with the objectives of a review as set out in this paper? What do you consider should be its scope? • EPSU still believes that the Directive should be amended in order to abolish the opt-out and define on-call time at work as working time and welcomes the opportunity to have a further debate on the importance of protecting workers against the dangers of long working hours. • Health and safety has to remain the primary goal along with consistent implementation of working time rules across the EU. • This consistency cannot be guaranteed in the long term if the opt-out remains in place. • Greater flexibility for workers to improve their work-life balance is certainly on the negotiating agenda for our member organizations and any significant initiatives at European level could be discussed as long as the basic legislation is there to protect against long working hours.

11. Questions asked by the Commission (6) • Do you think that, apart from legislative measures, other action at European Union level would merit consideration? If so, what form of action should be taken, and on which issues? • EPSU would not rule out other action at European Union level that would contribute to improving workers’ protection in terms of working time and access to improved work-life balance, but would be concerned at this stage if any such measures were put forward as an alternative to ensuring an amended and effectively implemented Directive.

12. Questions asked by the Commission (7) • Do you wish to consider initiating a dialogue under Article 155 TFEU on any of the issues identified in this consultation? If so, on which ones? • EPSU would not propose to initiate any dialogue at the moment that might distract from working towards a better and more effective Working Time Directive which we see as a central piece of legislation to protect workers’ health and safety. • Before any negotiations can be considered, governments would have to withdraw the full and partial opt-outs which have been imposed.

13. EPSU and ETUC responses • Directive should be amended to: • End individual opt-out • Clarify that on-call time at work should be calculated as working time • Directive should be not be changed to allow longer reference periods without collective agreements • Health and safety must remain overriding aim • Need to emphasise that it is also a question of safety for those receiving services – patients etc. • Necessary to restrict some individual rights in order to ensure effective implementation of safety laws • EPSU final response: http://www.epsu.org/a/6584 • (First response translations: http://www.epsu.org/a/6422 • ETUC response: http://www.etuc.org/a/7352

14. Problems for the health and social services sector • Issue of on-call time has posed a major problem for hospitals and provision of social care • Immediate reaction of employers and some professional bodies was extreme difficulty (cost) in complying with directive • But progress has been made where employers and trade unions have been able to consider new arrangements for work time • This week report commissioned by the UK government has concluded that training for doctors can be delivered within 48-hour week in contrast to claims by some professional bodies

15. Challenges for the Fire Service • Article 6: maximum of average 48-hour week (averaged over a maximum of 12 months by collective agreement) • Article 3: daily rest period of 11 consecutive hours in 24-hour period • Article 8: night work maximum of average of eight hours in 24-hour period • (Derogations possible from these two articles where continuity of service required as in fire service or where negotiated by collective agreement) • European Court of Justice rulings (SIMAP, Jaeger) that on-call time at work should be treated as working time

16. Working Time in the Fire Service • Information from survey and earlier surveys by EPSU (2006) and FEU indicate wide range of working time arrangements • These can vary also within countries as different shifts are worked depending on if they are set or negotiated at local, regional or national level • 8, 9, 12, 15 and 24-hour shifts are used in various combinations • Changes have been introduced in the Netherlands and Germany (regional level) in response to the Working Time Directive • But discussion in network in 2006 did not reveal major problems with Directive or on-call issue

17. Complying with the directive • Responses from recent survey indicate that working time arrangements do not comply with the Directive in: • Finland, Denmark, Slovakia, France and Italy • (also Austria) • But working time is in line with Directive in Netherlands, Belgium and Croatia • Clarification needed on Spain and Estonia • Particular issue of part-time/volunteer firefighters who might exceed 48-hour week if hours in normal job are added to hours spent as firefighter

18. What now? • Are there currently any negotiations to resolve working time issues? Particularly on-call time? • EPSU will be work with ETUC to coordinate their responses in the next phase of consultation and the starting point will be phasing out of the opt-out and recognition of on-call time at work as working time • Part of current demands are also that the directive should cover all a workers’ working time from different contracts • If there are serious reservations about the EPSU position then they need to be communicated to standing committee and executive committee • Does network want to take any kind of advisory position in the lead up to the second phase of consultation?