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Europaudvalget 2003-04
EUU Alm.del Bilag 737
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fejl.

Arbejdsmarkedsudvalget

(Alm. del - bilag 328)

(Offentligt)

Folketingets Arbejdsmarkedsudvalg

Christiansborg

1240 København K

Ved Stranden 8

1061 København K

Tlf. 33 92 59 00

Fax 33 12 13 78

[email protected]

www.bm.dk

SE-nr. 10 17 27 48

Besvarelser til Kommissionen vedrørende arbejdstidsdirektivet

Under henvisning til udvalgets spørgsmål nr. 60 og 61 af 21. januar 2004 og

besvarelserne heraf vedlægges den danske regerings besvarelse af Kommis-

sionens spørgsmål om virkningerne af SIMAP og Jaegerdommene og den

danske regerings svar på Kommissionens meddelelse Kom (2003) 843 af 30.

december 2003. En dansk oversættelse er under udarbejdelse og vil blive ef-

tersendt.

Vores sag

6309-0001

Bilag

Claus Hjort Frederiksen

Einar Edelberg

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[email protected]

The Danish Government’s comments to the Communication from the

Commission concerning the Re-exam of the Directive 93/104/EC con-

cerning certain Aspects of the organization of working time

Introduction

Denmark welcomes the Commission’s initiative which on the one hand aims

to consider and solve the difficulties the 2 ECJ rulings (the Simap and Jaeger

cases) have caused in the member states, and on the other hand fulfils its re-

vision’s obligations according to article 17 and article 18 of the Working

Time Directive 93/104/CEE (WTD).

Seen from a Danish perspective it is imperative that a sustainable solution on

working time in general is found that respects the employee’s health and

safety, society’s need for a well-functioning labour market, and the em-

ployer’s interest in flexible and definite legislation.

The Danish Government welcomes the Commission’s initiative including the

use of Article 138. The Communication in itself, and the Commission’s han-

dling of the question at the Employment Council at the 4 March indicate that

the Commission is fully aware of the substantial problems the present legal

situation creates for the member states, and is committed to find a legislative

solution to the problem.

The five issues listed in the Communication

Re.: Reference periods

Even though the majority of the labour force is covered by collective agree-

ments in Denmark thus having the possibility to prolong the reference period

up till 12 months cf. art. 17, the Danish Government believes it could be use-

ful to allow for a legislative possibility to prolong the reference period for up

till 12 months. Part of the labour market requires more flexibility than the

existing legislation permits. Extending the reference period up to 12 months

will facilitate the work organization in general. This is i.a. the case for em-

ployees who are not covered by a collective agreement.

March 29, 2004

Our ref.

6309-0001

2/13

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Re.: The Court of Justice’s interpretation of the concept of working time

in the SIMAP and JAEGER cases

The 2 cases have an impact on the future work organization on the Danish

labour market in relation to on-call duty and compensatory rest.

On-call duty in the health sector

The Health sector is affected because of the frequent use of on-call duty on

the work place. This concerns mainly doctors because of their work organi-

zation. Bringing doctors’ working time in line with the rulings would require

a reorganization of their working time, and estimated up 80 additional doc-

tors, mostly senior doctors. However, the hiring of doctors is difficult, since

Denmark suffers from a shortage of doctors.

On–call duty in other sectors

Approximately 3000 teachers at continuations schools are affected. A reor-

ganization of their working time is not sufficient to solve the impact of the

rulings. Hiring of additional staff is therefore necessary, but will cause diffi-

culties.

According to the Kriminalforsorgen 655 employees working in Danish pris-

ons will be affected. The impact of the 2 rulings might be eliminated by re-

organizing their schedules. However, a reorganization of the working time

will create problems in the sector.

According to the Government’s information sectors operating in the field of

IT-surveillance, telecommunication, guard and security are facing problems.

Also the service industry and production industry in general have special

functions where on call duty is a part of the working time schedule.

Finally, the Danish Government finds it relevant to add that some employees

find on-call duty as a work organizing instrument very attractive. This is due

to the fact that the full time employee’s

presence

at the work place with on

call duty in reality is limited. The reason for this is the fact that the employee

that can spread his/her working time over a limited number of days per week.

If a reorganization of the working time is required as a result of the ECJ’s

rulings, some employees will feel that they lose an important work benefit

that until now has giving them flexibility in their daily life.

The Danish Proposal for solving the problems related to on call duty

The Danish Government believes that it is necessary to find a legal solution

to the problems related to the ECJ’s interpretation of the working time con-

cept. The Danish Government suggests amending the working time defini-

tion e.g. by introducing a new time concept in the directive “in-active time”.

3/13

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This should permit a certain period of time where the employee’s presence at

the work place do not count as neither working time nor as resting time, if

the employee is not required to carry out his/her activities or duties, and is

free to sleep/rest.

Compensatory rest periods in the health sector

The most serious impact of the 2 cases, seen form a Danish perspective, is

the limitations the ECJ sets up in the Jaeger-case regarding the postponing of

compensatory rest periods. The guidelines for the handling of compensatory

rest is set up in item 94, which states the following: “Such rest periods must

therefore follow on immediately from the working time which they are sup-

posed to counteract in order to prevent the worker from experiencing a state

of fatigue or overload owing to the accumulation of consecutive periods of

work.”

According to the relevant health authorities the ruling will create problems,

because the different occupational groups according to their collective

agreements to a large extent postpone a part (up to 3 hours) of their resting

time to some later point in time, thus not meeting the criteria of the ruling. In

the health sector such occupational groups as doctors, nurses, midwives and

care assistants are concerned.

Depending on the occupational group the problem can only partly be solved

by reorganization and will in any case require hiring of additional staff. Ac-

cording to the relevant authorities the rulings cause even greater problems in

relation to compensatory rest than on-call duty where the estimate was up 80

additional doctors. It is unfortunately not possible to give a more precise es-

timate. As mentioned above the hiring of additional doctors is problematic,

since there is a shortage of doctors.

The recruitment situation is also critical for nurses and midwives who also

will be affected if the present work organization cannot be upheld.

Compensatory rest periods in other sectors

Even though the 2 ECJ´s rulings concerns doctors, and thus the focus of the

implications of the 2 rulings has been on the health sector, the Danish Gov-

ernment is deeply concerned of the impacts the rulings may/will have in

other sectors, where employees work in shifts with on call duty and where

presence is required 24 hours.

The examples in the text below show how far reaching the rulings are for so-

ciety in general. For some sectors it possible to solve the problems caused by

the strict interpretation of the working time concept, for others it is not pos-

sible because of recruitment problems or the need for human contact with the

same employee for the longest period possible.

4/13

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Firefighters: estimate 1200 workers and autonomous workers will be af-

fected.

Educationalist in kindergartens etc. and teachers in the county schools

(55,000 teachers) will to some extent be affected because of various activi-

ties e.g. meetings with parents, annual camps and excursions which are a

normal and important part of their employment, and the education of the

children.

Educationalists working with people with special needs: As a starting point a

reorganization of their schedule is possible. However, from an educational

and emotional point of view a reorganization of the working time could have

a negative effect on the individual, because the individual would have to be

confronted with more staff members during a week. Depending on the indi-

vidual this could have serious impact for his or her well-being.

The care sector: Staff helping and participating in excursions with elder citi-

zens living in residential homes will be affected.

The Danish proposal for solving the problem with compensatory rest

It is the Danish Government’s opinion that there is an evident need for pre-

serving the existing working time organization thus allowing work places to

continue using on-call duty combined with ordinary shifts. An amendment of

the directive permitting a postponing of the compensatory rest period within

e.g. 72 hours of the missed daily break would solve the problem.

An amendment in this direction could ensure flexibility in general and limit

the main impacts of the rulings namely recruitment problems and the eco-

nomic consequences.

Re.: The conditions of application of Article 18.1 (b) (i) (opt out)

The opt out clause has not been implemented in Danish legislation; however,

the Danish Government fully recognizes other member states’ need for this

provision, and with the ECJ’s strict interpretation of the (WTD), Denmark

cannot exclude that the opt out clause might be interesting for the social

partners.

The opt out clause provides flexibility for the benefit of both the employee

and the employer. The provision is far reaching in that respect that the em-

ployee renounces his/her weekly working time protection. The reasons for

this renunciation can be various, but it is up to the individual to take that de-

cision. The important thing in this respect is to ensure that the employee is

secured an adequate protection, when he or she decides to activate the opt

out clause. The present wording of the opt out does not qualify conditions

which have to be observed in order to conclude an opt out clause.

5/13

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The Danish Government proposes the following amendments/clarifications

to the opt out provision:

1. The conclusion of an opt out agreement has to be in writing

and separated from the conclusion of the employment contract.

2. An opt out should be limited in time.

3. The opt out agreement has to include a paragraph allowing

the employee to withdraw his/her consent to opt out. The notice

period should not exceed the notice period in the employment

contract.

4. Taken into account that the collective agreements - espe-

cially in the health sector - are used in a substantial number by

the member states, the Danish Government believes it would

be a useful possibility to link and opt out agreement to the con-

clusion of a collective agreement.

Re.: Measures aiming at improving the reconciliation between work and

family life

The social partners have a long tradition for negotiating solutions that respect

the 2 sides of industry’s different interests. On a European level this is illus-

trated with the framework agreement on parental leave concluded by UNICE,

CEEP and the ETUC, which was transposed to directive 96/34/EC of 3 June

1996. the framework agreement on part-time work concluded by UNICE,

CEEP and the ETUC, which was transposed to directive 97/81/EC of 15 De-

cember 1997, and the framework agreement on telework.

On a national level the social partners also take on the responsibility for im-

proving the reconciliation between work and family life. The examples are

various, but just to illustrate the initiatives the social partners have taken the

following examples should be mentioned:

The first day your child is ill the employee is entitled to be absent

from work.

In case of serious illness in the family absence from work is allowed

for 8 days.

Care days depending on the collective agreement between 2 days up

till 10 days. Care days entitle an employee to stay at home with out

prior notice and gives thus flexibility especially for employees with

minor children.

Salaried maternity leave between 14 and 26 weeks depending on the

collective agreement.

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5 days of extra holiday.

The examples above show that the social partners have taken initiatives

which to a large extent reconcile work and family life.

It is the Danish Government’s firm conviction that the reconciliation be-

tween work and family life to the largest extent possible should be handled

by the social partners. However, the Danish Government is aware of its re-

sponsibility and do if it finds it necessary take legislative initiatives, improv-

ing the flexibility for employees on the labour market. The amendment to the

law on part-time work from September 2002, where the employer and the

employee can agree on part time work irrespective a prohibition of part time

work in a collective agreement, illustrates this.

This spring the Danish Government has taken the initiative to set up a com-

mittee of ministers aiming at improving the conditions for reconciling family

life and work life. The problems the families are facing differ of course, but a

general need for flexibility in relation to work time organization, access to

day care facilities and telework would be an improvement for a lot of people.

The examples described above show that the social partners are aware of

their responsibility on both European and national level. The present word-

ing of the directive allows for national differences. The Danish Government

believes that the present directive should continue to focus on the regulation

of the workers health and safety in relation to working time at the work

place, and not expanding its scope to more general working conditions.

Re.: Whether an interrelated approach to these issues would allow for a

balanced solution capable of meeting the criteria set above

Based on the Danish experience it is possible to establish a balanced solution

which takes into account both health and safety of the concerned, and the

demands for a well-functioning labour market including the safety of and the

considerations to the patients and other groups.

The Danish Government believes that an amendment of the directive is nec-

essary, which on the one hand respects/safeguards the employee’s health and

safety, and on the other hand enables a work organization that takes into ac-

count that some occupational sectors and professions are obliged to use on

call duty, and to postpone compensatory rest periods. The reasons for this are

both linked to the nature and purpose of the work concerned, to recruitment

problems in various sectors and to the economic consequences. The Danish

Government asks the Commission to recognize these facts. Compliance with

the ECJ’s rulings is simply not a possibility in some sectors. It is the Danish

Government’s opinion that an amendment of the directive should secure an

adequate level of protection for the benefit of all parties involved.

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7/13

Yours sincerely

Mr Einar Edelberg

Deputy Permanent Secretary

AIC/Labour Law Division

+45-3392 9959

[email protected]

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8/13

European Commission

Employment and Social Affairs DG

Responses to the questionnaire on the impact of the case law of the

Court of Justice in cases SIMAP and Jaeger

On 26 February 2004 the Danish Government obtained a small respite re-

sponding to the questionnaire on SIMAP and Jaeger, since it was very diffi-

cult to collect precise information concerning the various sectors of the la-

bour market.

The Danish Government appreciates the indulgence on behalf of the Com-

mission and regrets that it has not been possible to forward more accurate in-

formation on the impact of SIMAP and Jaeger than the following:

March 15, 2004

Our ref.

6309-0001

1. Legal impact

1.1. Did the rulings in cases SIMAP and Jaeger lead to amendments of

the legal rules or could this be the case in the future?

The cases SIMAP and Jaeger have not lead to amendments of the legal rules

in Denmark up to now. Some amendments of the legal rules on working

time in Denmark may be necessary in the future, if the impact of SIMAP and

Jaeger is not neutralized by adjustments of the Working Time Directive.

1.2. Have the rulings of the Court in cases SIMAP and Jaeger had any

impact on collective agreements or other agreements between social

partners or on national practices concerning working time?

The cases SIMAP and Jaeger have not had any impact on collective agree-

ments or other agreements between social partners up to now. If the cases

have had any impact on national practices up to now it is only on workplace-

level.

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It can be foreseen, however, that quite a few collective agreements covering

many workers in several sectors must be revised, especially with regard to

the timing of rest periods, if the Working Time Directive is not adjusted ac-

9/13

cordingly. One such agreement between the public employers and a multi-

tude of trade unions covers around 300.000 workers in

inter alia

the health

and care sectors.

1.3. Do you consider that this case law of the Court will impact on sec-

tors other than the health sector?

The cases SIMAP and Jaeger will affect various sectors other than the health

sector if the Working Time Directive is not adjusted. In some sectors it may

be possible to deal with the impact by rearranging, while it will be necessary

to recruit additional personnel in other sectors. Some examples of sectors or

jobs generally affected (with number of potentially affected workers in

brackets where possible) are:

Fire fighters

Rescue services

Care sector

Animal husbandry

Prison service (650 workers)

Continuation schools (3000 teachers)

It must be underlined that this is not at all an exhaustive list of generally af-

fected sectors or jobs.

Additionally it must be mentioned that some sectors or jobs will be partly af-

fected, for instance longer school camps in the education sector seem virtu-

ally impossible to carry out unless the Working Time Directive is adjusted.

2. Impact on human resources

2.1. In order to maintain the same level of services, does this case law

require the recruitment of additional staff?

In some sectors other than the health and care sectors it will probably be pos-

sible to deal with the impact of the cases SIMAP and Jaeger by rearranging,

but e.g. in the case of continuation schools a substantial amount of additional

teachers will have to be recruited. An amount of additional herdsmen will

also be in demand.

The health sector

On call (maximum 48 hours a week)

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In the health sector recruitment of additional staff is definitely required. With

regard to the on call-issue and the 48 hour weekly maximum 60-80 addi-

tional doctors, mostly senior doctors, are considered necessary, if the Work-

ing Time Directive is not adjusted.

10/13

Compensatory rest

The impact of the cases SIMAP and Jaeger is considered even more severe

with regard to compensatory rest, but an estimate of the need for additional

staff in that respect has not yet been worked out.

The local agreements between the social partners in the health sector mostly

allows for a reduction of rest periods from 11 to 8 hours, but how much rest

periods actually are reduced locally in a way not in accordance with the Jae-

ger ruling is not clear. The reduction of rest periods can be part of a duty ros-

ter, but is also very common in case of illness, vacancies etc., and this is not

supervised centrally in any way.

The local agreements cover doctors, nurses, midwives etc. and, accordingly,

recruitment of additional staff will be necessary with regard to all kinds of

personnel within the health sector.

In Denmark some counties estimate that they will be able to solve the issue

of compensatory rest by rearranging, while others envisage an urgent need

for substantially more manpower in the health sector.

Similar collective agreements apply in the care sector and timing of the com-

pensatory rest in accordance with Jaeger will therefore require recruitment of

additional staff.

2.2. If additional staff is required, are the workers available on the na-

tional labour market?

In some of the sectors other than the health and care sector the additional

workers are not readily available in Denmark. Difficulties recruiting the nec-

essary teachers for continuation schools, the additional herdsmen and fire

fighters are for instance envisaged.

In the health sector there is an overall shortage of skilled workers in Den-

mark, especially with regard to doctors and trained nurses. There is no obvi-

ous solution to the shortage of manpower in this field. A possible, but not

satisfactory measure could be increased use of those temporary employment

agencies that are already today an important factor countering the shortage of

mainly trained nurses. Increased use of these agencies will, however, not in

any way reflect generally improved health and safety standards in the health

sector, because it will mostly be the same nurses and doctors just working for

another employer, but not working less or having longer rest periods. If the

Working Time Directive is not adjusted with regard to compensatory rest it

is envisaged that by increasing the use of temporary employment agencies

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the allocation of medical personnel will pass off in a more disorganized and

more expensive manner with a notable decrease in the quality of the health

service as the inevitable result.

11/13

In the care sector it is also envisaged that the increased use of temporary em-

ployment agencies will result in additional costs, worse service and no im-

provement in relation to rest periods.

3. Financial Impact

3.1. Please specify, as precisely as possible, the additional costs directly

attributable to the SIMAP and Jaeger case law, broken down by sectors

and professions.

In the health sector the cost of the additional doctors needed to comply with

the on call issue is estimated at around 50 million DKK. Since it is not pos-

sible to estimate the impact in relation to necessary additional staff in the

health sector with regard to compensatory rest, it is not yet possible to esti-

mate the additional costs in this respect. It is for instance not clear exactly

how much the use of temporary employment agencies will be necessitated. It

is, however, the assumption that the additional costs will be substantial and

surpass the above mentioned 50 million DKK.

This is also the case in the care sector.

The additional costs with regard to fire fighters are estimated at around 50

million DKK. Substantial additional costs are also envisaged in relation to

animal husbandry, especially with regard to smaller employers.

Exact information concerning additional costs in other sectors is regrettably

not available.

4. Miscellaneous.

Unfortunately there is no more firm information available on the impact of

the rulings in cases SIMAP and Jaeger. It must be underlined, however, that

the shortage of information should not be mistaken for lack of impact.

Furthermore, it must be emphasized that the exact scope of the Jaeger ruling

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with regard to impact of Jaeger cannot be forwarded without making a infor-

mation on the compensatory rest is not well-defined and, accordingly, reser-

vation in this respect.

Yours sincerely

12/13

- 13 -

Einar Edelberg

Deputy Permanent Secretary

(+45) 33929959

[email protected]

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(Løbenr. 15228)