Overtime: Re-Interpreting the opt-out derogation

The 2003/88/EC Working Time Directive limits maximum weekly working time to 48 hours per week and establishes minimum daily rest periods of 11 hours. Article 22 thereof allows Member States to opt-out of the 48-hours limitation, thus limiting daily working hours to 13, subject to the respect of the general principles of the protection of the health and safety of workers and to employees’ consent. This article attaches great weight to Member States’ obligations to respect the General Principles, which include, inter alia, the protection of workers’ health and safety; workers’ right to reasonable working hours and to dignity; and the notion of adapting work to workers. It refers to empirical research exposing the distinctly negative implications of work lasting more the 12 daily hours on both workers’ health and safety. It suggests that the limitation of working hours should be treated as equivalent to the supplying of employees in industrial plants with protective equipment. It regards employers’ duty to adapt work to workers as having double meaning: first, longitude of hours worked should fit the physical and mental limitations characterising the human body; second, workload should be adapted to employees’ physical and psychological limitations vis-à-vis work hours. The article concludes that it is doubtful whether allowing regular working hours of up to 13 hours complies with the General Principles; proposes to interpret the derogation as limiting regular daily working hours to 12; and to amend the derogation accordingly. It further concludes that the Directive rightly prioritises workers’ health and safety over economic considerations. Indeed, workers are not a means to achieve employers’ goals; rather, they are human beings whose physical and psychological well-being must be respected in the context of working hours and must prevail over commercial interests. Further, commercial interests actually call for the limitation of working hours to up to 12 on a regular basis. The derogation is also subject to workers’ consent and thus reflects their rights to autonomy in the workplace and to free choice of occupation. Hence, employees should be treated as (part) authors of their own work environments and should therefore have the power to shape the length of their overtime. However, their right to autonomy may be hindered by direct or indirect pressures, especially as they have little bargaining powers and alternatives. In order to achieve actual autonomy in the workplace, this article suggests that: employers inform employees as to their freedom to choose whether or not to opt-out and of the risks to health and safety emanating from overtime; consent be written; and that overtime performed beyond 48 weekly hours without free and informed consent be regarded as unconsenting and deserving of reparation.