Definition of "on call" work
In some countries, there appears to be an increasing use of ‘on-call’ work or duty arrangements. Generally speaking, this is work done on an ‘as-needed basis’, whereby workers must be available at certain times to be called into work when required by their employer. It thus involves unpredictable or irregular working hours for the workers involved. In 2007, the working time review devotes a special section to this issue, examining how on-call work is understood and defined in each country, its regulation and extent, and the nature of any court cases that have dealt with the matter.
Some aspects of on-call work are particularly topical at present. In its judgements in the Simap and Jaeger cases, in 2000 and 2003 respectively, the European Court of Justice ruled that all time spent on call should be classified as working time, even where the employer provides a place to sleep while the employees are not actively engaged in their duties. Both cases referred to doctors’ on-call periods. The rulings have had an effect at national level, as the legislation in many Member States does not – or did not at the time of the rulings – regard all time spent on call as working time. At EU level, conforming with the judgements was one of the key issues in the European Commission’s proposed revision of the working time Directive which remains deadlocked in the Council.
EC launches public consultation
Following a number of legal judgements by the European Court of Justice (ECJ), the DG Employment and Social Affairs launched ’Phase 1’ of a public consultation and review process on the Working Time Directive (EWTD) in early 2004.
The European Commission issued a Communication on the review of the Directive which analysed the opt-outs and derogations in different Member States, summarised recent case law concerning the definition of working time and the qualification of time spent "on-call" and set out the framework for a public consultation on the implementation of the Directive.
’Phase 1’ of the consultation was closed on 31 March 2004 and comments were proposed on the following issues:
The length of reference periods (currently four months, with certain provisions allowing for 6 months or a year);
The definition of working time following recent European Court of Justice rulings on time spent ’on call’
The conditions for the application of the opt-out - Measures to improve the balance between work and family life
How to find the best balance of these measures.
On 19 May 2004, DG Employment announced ’Phase 2’ of the consultation. Based on the results of ’Phase 1’, the EC identified specific areas that workers’ and employers’ representatives ("social partners") should negotiate on.
EC publishes new proposed EWTD
The European Commission anounced on 23rd September 2004 its controversial proposal to update the 1993 working time Directive.
In its proposal, the EC has kept the individual opt-out from the 48 hour week, although it has included stricter conditions for it (EPHA members can read EPHA’s briefing on the opt-out).
Member States would be given the possibility to extend the reference period for calculating the 48-hour maximum working week from 4 months to a year. Time spent on call that is not worked would not be counted as working time, with compensatory rest granted within 72 hours.
The proposal was sent to the Council and the European Parliament for agreement.
The Health Council met on 4th October 2004 in Luxemburg and this issue was discussed. Please read EPHA’s related article "Health Council discusses health care" for more information.
Commission’s press release, 23/09/04
June 2006: latest developments
The 08-09 December 2004 Employment, Social Policy, Health and Consumer Affairs Council was not able to reach an agreement on the WTD, given the differences in the labour market. The key issues that blocked the discussion remain: ie the opt-out provision and the question on the whether the maximum weekly working time is calculated per contract or worker.
Again, the Council of Ministers failed to agree on a revision of the EU’s working time directive in June 2006. The stalemate still centres on the opt-out clause. This may force the European Commission to take legal action against Member States that are currently violating European Court of Justice rulings over on call time.
The Finnish presidency will put the issue on the agenda of Ministers during Fall 2006.
November 2006: The Finnish Presidency fails to secure an agreement
Despite an attempt from the Finnish Presidency to end the stalemate on the working time directive, the Council of Ministers have failed once again to arrive at an agreement in their extraordinary meeting which was held on 7 November 2006.
Tarja Filatov, the Finnish Labour Minister proposed a compromised text which, if adopted would have imposed stricter conditions for the UK’s opt-out clause, and would have reduced the average weekly working hours in a 3 month period from 65 to 60.
However no majority could be obtained on the Finnish amendments due to major disagreements surrounding the opt-out clause and as a result of different labour market situations.
France, Italy and Spain proposed an amendment for the future abolition of the opt-out clause which was inevitably refused by the UK with the support of Germany and several other Eastern European countries.
As a result of the lack of agreement from member states,the Commission has asserted that the 23 member states failing to meet the requirements of the directive will soon face infringement proceedings.
December 2007: The Council agreed to postpone a decision in order to further pursue the dialogue
The Employment, Social Policy, Health and Consumer Affairs Council met on 5 December 2007 in Brussels. Among other issues, the Council sought to reach political agreement on two draft Directives, the first one aimed at amending Directive 2003/88/EC concerning certain aspects of the organisation of working time, the second one aimed at establishing working conditions for temporary agency workers.
After extensive bilateral consultations with different member states and the Commission, the EU rotating Presidency held by Portugal in December, decided to present compromise proposals for both directives. Given the difficulties in finding isolated solutions for each of the files, the Presidency decided that there would be added value in working on a simultaneous and integrated solution, thus allowing member states to find a balance between the two directives that would be acceptable from the political point of view.
The connection between the two directives, and more specifically the proposals presented by the Presidency, was considered a solid and viable basis for negotiation towards an agreement in both.
Having in mind the fact that this proposal is still very recent, as well as the sensitive nature of these directives to some Member States and the importance of exploring all attempts to reach an agreement as large as possible before final decision, the Council agreed that the best option at this moment was to postpone a decision, in order to further pursue the dialogue.
Nevertheless, the Presidency noted that a vast majority of Member States had spoken in favour of an integrated solution for the directives, building a global equilibrium between the two, and that many Member States had pressing needs to address labour market regulation problems which depend on a solution to these files. Achieving results in the short-term is therefore of utmost importance for the EU as a whole.
Related documents
ECJ to rule on UK’s implementation of the European Working Time Directive
The ECJ considers on-call duty as working time
New ECJ judgement: emergency workers cannot exceed 48 hour working week
