Important information on the European Working Time Directive

Note of Meeting with Cabinet of Commissioner Marianne THYSSEN, 29 June 2015 Berlaymont, BRUSSELS.

European Working Time Directive

Note of Meeting with Cabinet of Commissioner Marianne THYSSEN

29 June 2015 Berlaymont, BRUSSELS.

Present

European Commission-Inge BERNAERTS Member of Cabinet and Sacha GARBEN Cabinet Legal services with a further work experience colleague;

Fire and Rescue Service Delegation-Chris Addiers: President FEU (B), Finian Joyce: Secretary FEU (IRL), Des Prichard: WTD expert FEU (UK), Paul Walker: CFOA (UK), Dennis Davis: Commission Europe CTIF (UK), Herman Greven: AGBF (D), Christophe Marchal: FNSPF (F) and Maïka Billard: FNSPF (F)

Opening Comments

Inge Bernaerts apologised for the absence of Commissioner Thyssen who had been called into an urgent meeting of Cabinet (it was suggested this related to Greece). She stated that she would report back to the Commissioner who wished to remain alert and informed by stakeholders with ‘her ear to the ground’.

A briefing on the issues of concern and the operational context of the FRS, especially regarding the impacts of the Working Time Directive (WTD) was provided by FEU and CTIF. Care was taken to explain the diversity, distinctly different approaches and cultural roles that the FRS undertakes in Europe. On issues related to the WTD itself the briefing broadly followed a paper submitted prior to the meeting to the Commission by the FEU, a copy of which is attached.

Additional comment from CTIF was made that related to the specific difficulties the WTD can pose for volunteers operating in small or remote units, the professional nature of the FRS, their quantified value to communities, the generally high standard of FRS employers and the mutually shared concern of all parties for the health and well-being of all firefighters.

In addition questions were raised regarding the recent consultation (Review of the WTD 2003/88/EC) that closed on 15 March 2015 and the possibilities of any likely deliverables. The point was also emphasised that whilst both FEU and CTIF are not social partners and therefore not formal consultees it is their members who are directly involved

Discussion

In response IB indicated the wish was to ‘modernise’ the WTD and neither to tighten nor loosen its employment controls. The issues were complex in that it was necessary to prevent ‘self-harm’ by volunteers who did not take care of themselves whilst also allowing flexibility to operate a 24/7 service. Definitions were important: about hour limits, aggregation, scheduling, etc. and advice from DG ECHO via Member State civil protection services had tended to indicate that the FRS was currently managing. Difficulties did exist but the suggestion was this was partly interpretation by Member States of the Directive. IB then asked SG to comment on the legal situation.

SG suggested there were already options to ease the situations that concerned FEU and CTIF. The acid test of whether a firefighter was a ‘worker’ in terms of the WTD were (1) did they have a subordinate role (2) and did they receive remuneration. If the answer to one or the other question was ‘no’ they were excluded. Equally a worker could be automatous under Section 17(1) or collectively opt-out. Reference periods could be aggregated from 6 to 12 months to manage spate or busy periods and the exclusion of crisis periods helped accommodate extension of the 48 hour week period before rest.

The discussion continued with FEU and CTIF offering practical examples of how the current rules were variable between Member States, within States and at the local level. The impact of the Driving Time Directive was cited as an example of how the WTD and DTD clashed and many examples were given of how important scheduling was to maintain overall operational protection for a community. There were discussions on cited legal conditions such as; annual leave not being transferable into aggregated hours, the difficulty of clarifying responsibilities for recoding hours for persons on multiple contracts, how defining standby time might assist and helping resolve when certain provided equipment or vehicles became ‘benefits in kind’ to be counted as remuneration.

In terms of the ongoing WTD consultation IB stated analysis was still under way and that proposals for legislation would not occur before the 2016 planned cycle due to other pressures. The only insight offered was that responses had been of a good level and were diverse in their support for the various options and offered numerous suggestions.

IG indicated that the Commissioner wanted to maintain this type of dialogue and that should legislative proposals emerge she would seek our opinion.

Outcome

The meeting was seen as productive. The initial aim was to ensure continuing dialogue with DG EMPL and this was achieved.

Additionally the discussion with the cabinet legal services had explored new ideas and areas that might be exploited to the benefit of firefighters and it was agreed with IG to continue this work. The agreement was that Des Pritchard (FEU) would assemble a series of questions and points for possible clarification and forward this to Sacha Garben. She would respond and this would allow the Commission, FEU and CTIF to continue exploring how the WTD impact might be made more manageable. Dennis Davis would work with DP and the FNSPN to assemble specific CTIF points for inclusion within the submission.

The meeting lasted just over 1 hour.

Dennis Davis

Vice President

European Working Time Directive

Meeting with Commissioner Marianne Thyssen - 29th June 2015

Delegation representing FEU (Federation of the European Union Fire Officers Association), International Technical Committee for the Prevention & Extinction of Fire (CTIF), AGFB (Arbeitsgemeinschaft der Leiter der Berufsfeuerwehren) and FNSPF (Fédération Nationale Sapeurs Pompiers de France)

The Federation of European Union Fire Officers Association  (FEU) represent Fire & Rescue Services/Civil Emergency Services in 23 European countries.  The FEU is a long established pan-european organisation with the membership drawn from Chief Officers from across Europe.

For a number of years, the FEU supported by our colleagues in the CTIF have discussed the European Working Time Directive(WTD),  and its impact on the work of Fire & Rescue Services/Civil Emergency Services across Europe.  Our discussions have considered the impact of the WTD on the effectiveness of operations, the impact on our staff, recruitment and retention and terms and conditions of service.

The key areas for consideration have focussed on the following matters:

• The 48 hour week and night working
• The impact on part time workers
• The impact on volunteers
• The definition of working time for firefighters and emergency service workers
• The definition of standby time for firefighters and emergency service workers
• The place where firefighters take standby
• The aggregation of hours for firefighters who have other jobs
• Responsibilities of employers where firefighters have more than one job

The 48 hour week and night working.

Due to the very nature of emergencies, firefighters may have to work longer hours than would be usually planned for.  Unlike an employee who works in a factory, a shop, commercial premise  or an office with regular start and finish times, a firefighter may be required to remain at an emergency beyond their normal contracted hours.  This may result in the firefighter having to forgo their normal rest breaks; it may result in firefighters who are working night shifts not being able to have an 11 hour break before returning to work.  The Fire & Rescue Services/Civil Emergency Services senior managers  will always consider the health and welfare of firefighters as being of primary importance and may be able to provide for compensatory rest prior to the start of the next working day.  However, circumstances may mean that the firefighter is not able to take compensatory rest.  For fighters who have more than one employer, they may be called out to an emergency during the night and then have to report to their other employment in the morning without immediately taking compensatory rest.  In such circumstances, who would be responsible for collating the hours worked, would it be each individual employer and if so, how would the employer know how many hours the firefighter has worked for the other employer.

The impact on part-time workers.

In many European countries, the Fire & Rescue Service/Civil Emergency Service is made of  full time firefighters and part-time firefighters.  Many of the part-time firefighters have other employment which is often their primary employment.  In their primary employment they may work between 35 hours and 48 hours per week.  If the hours that constitute the 48 hour week as specified in the WTD are a maximum of the hours aggregated between more than one employer, then this would significantly limit or restrict the ability of Fire & Rescue Services/Civil Emergency Services to recruit firefighters from the general workforce.  It is vitally important to recognise that the majority of European countries rely on a Fire & Rescue Service/Civil Emergency Service made up of full and part-time firefighters. If there were any restrictions on the number of hours that a part-time firefighter could work due to the hours they worked for their primary employer, this would severely impact upon the operational effectiveness of Fire & Rescue Services/Civil Emergency Services across Europe and in some countries, could result in the Fire & Rescue Service/Civil Emergency Service not being able to function effectively.

The impact on volunteers.

Across the EU Fire & Rescue Services/Civil Emergency Services there are many volunteer firefighters who make up a key part of the individual country’s  operational emergency response service. Volunteers may work entirely without any form of remuneration, some may receive incidental expenses for travel, personal equipment etc., and some may receive an annual fee for their availability or other form of small remuneration. They are designated as ‘volunteers’ within  the individual Member State, and are considered different in employment contractual terms from full time paid employees or part-time paid employees. Such volunteers will almost certainly have full time paid employment elsewhere for the purposes of the WTD. They also give up a great deal of their time for the local Fire & Rescue Service/Civil Emergency Service and this includes for training, maintaining equipment and responding to emergency calls. It is vital that the WTD recognises such volunteers as being separate from the paid employed workforce.  These volunteers provide a similar role to the person who runs a local sports club outside their normal paid work or runs a scout group or similar youth group outside their normal paid work. If the hours that ‘volunteer’ firefighters are designated to be working time for the purposes of the WTD, then this would have a significant negative impact on the capability and capacity of many Member States to be able to run their Fire & Rescue Service/Civil Emergency Service.

The definition of working time and standby time for firefighters and emergency service workers

Firefighters across many  of the member states work duty systems that may require them to be on the fire station for up to 24 hours at a time.  During this 24 hour period and usually in the night time hours, firefighters are allowed to rest and to sleep and are not required to do any work unless they have to respond to an emergency call.  This period when firefighters can rest and sleep is often termed ‘standby time’.  Other groups of firefighters, specifically Officers and  part-time firefighters may be on-call from their home. When they are at their home they are not required to work, but they have to be available to respond to an emergency call if required.  We would ask that the WTD acknowledges how the Fire & Rescue Service/Civil Emergency Service works in practice and that some degree of flexibility is provided to permit standby time not being considered as working time, and that the WTD recognises the differences in the way  Fire & Rescue Services/Civil Emergency Services operate compared to the more general employment practices found in offices, shops, factories etc., where employers have a much greater degree of control over their employees working routines and working  hours.  The Fire & Rescue Service is a different type of workplace where employees are not required to work throughout a 24 hour period, but are required to be ‘available to work’ in response to an emergency situation.

The place where firefighters take standby time

Across the EU member states, all Fire & Rescue Services/Civil Emergency Services provide an operational response capability in the event of an emergency, 24 hours per day, 7 days per week, 365 days per year.  In the larger towns and cities, this emergency response will be provided primarily by full time firefighters (in some cases this will be supplemented by part-time firefighters and volunteers), and in smaller towns, rural communities and villages, the emergency response service will be provided by part-time firefighters and volunteers.  Firefighters may be required to remain at their place of work, but be able to rest or sleep as part of the emergency response service; firefighters may be able to rest at a location within the boundary  but separate from the fire station, and be immediately available to respond to an emergency call; firefighters may be able to rest away from the fire station, at their home or elsewhere, but also available to respond immediately to an emergency call.  The key factor in all these cases is that the firefighter is not required to undertake any work and that they can rest and sleep, but they must be available and able to respond to an emergency call; the difference is the location where the firefighter can take this rest; it may be on the fire station, it may be away from the fire station but within the fire station boundary or it may be at the firefighters home or elsewhere.  There is general agreement from FEU members that if the firefighter is not required to work and can rest and sleep, then these hours should not be classified as working time under the WTD and should not constitute working hours for aggregating the 48 hour maximum working week.

The aggregation of hours for firefighters who have other jobs

Many firefighters have other paid employment. Some full time firefighters have other paid  employment on their days off; this is not unlike other sectors where employees who have a full time job during the day may drive a taxi or work in a bar during their time away from their full time employment.  Many part-time or volunteer firefighters have a full time job away from the Fire & Rescue Service/Civil Emergency Service.  In such cases part-time or volunteer firefighters may be working approximately 40 hours per week with their full time employment, and in some circumstances they may exceed this number of hours if they work overtime.  Part-time or volunteer firefighters are required to attend regular training sessions with their Fire & Rescue Service/Civil Emergency Service; they may be required to attend their local fire  station to maintain their equipment and they will be required to respond to emergency calls.  Part-time and volunteer firefighters will work a varied number of hours but if this is added to and aggregated with their full time employment, then the total may exceed 48 hours in any working week.  Similarly, full time firefighters may work approximately 40 hours per week for their Fire & Rescue Service/ Civil Emergency Service and may also work in excess of 10 hours per week in another job i.e. driving a taxi, working in a bar etc.     The WTD is unclear on aggregation of hours if an employee has more than one form of paid employment, who is responsible for collating the hours an employee may work if they have more than one employer and the consequences of aggregated hours exceeding 48 in such circumstances.  The FEU would wish to make clear to the Commissioner that the capability and capacity of Fire & Rescue Services/ Civil Emergency Services across the EU is dependent on a mixture of full time part-time and volunteer firefighters.  Any restrictions on the ability of firefighters to have more than one employer and to exceed 48 hours when all employments are aggregated, would significantly impact on the operational effectiveness of all Fire & Rescue Services/Civil Emergency Services, in every Member State.

Responsibility of employers where firefighters have more than one job

This point is linked to the previous comment in circumstances where firefighters have more than one job.  In such circumstances, a firefighter may exceed 48 hours per week without any of the individual employers being aware of this fact.  If a firefighter has more than one employer and all working hours have to be aggregated for the purposes of the WTD, this will undoubtedly present significant difficulties for proper and effective recording of hours.  It may cause employers of part-time and volunteer firefighters to remove their permission for their staff to undertake firefighting and emergency service duties in their spare time, or it may cause employers to restrict the hours their employee can devote to fire and rescue service activities.

CTIF Working Time Directive Position Statement (2011) Reinforced Belgrade 2014

-In view of the fact that over 2.7 million individuals within the European Union are freely engaged in duties to protect their fellow citizens at times of peril and at the considerable personal risk;

-In view of the conclusion of the gathering of the European Commission of the C.T.I.F. (International Technical Committee of Prevention and Fight against Fire) organized in Paris on the 8th of March 2008;

-In view of the Proposal for Action produced by C.T.I.F members in June 2008 and approved at the C.T.I.F Europe Commission held in Colmar (France) on the 19th September 2008;

-In view of the decision to continue to vigorously seek recognition of firefighters as workers in Europe reached by the C.T.I.F Europe Commission held in Ostrava (Czech Republic) on the 22nd July 2009;

-In view of the final declaration of the European Conference of Fight against the Fire concerning the creation of a European Conference of European Organizations adopted in Leipzig (Germany) on the 10th of June 2010;

-In view of the decision by the European Commission to promote the case of volunteers and their activities of active citizenship in the Year of Volunteers 2011;

-In view of the communication of the European Commission of the 21st of December 2010, starting the 2nd phase of the consultation of the European social partners concerning the review of the 2003/88 European Parliament Directive and the Council of the 4th of November 2003 concerning certain aspects of the working hours schedule.

The European Organizations of firefighters

have approved the following common positions:

1. Acknowledge with satisfaction the taking in account by the European Commission

• Of the special constraints of exercising the duties of professional firefighter concerning the hours on watch.
•  Of the acknowledgement of the special status of voluntary firefighters, who as free citizens are involved in serving the security of the population.

2. Underline the necessity of preserving within all Member States Members the diverse national models of the firefighter’s organizations (corps, brigades, firefighting and rescue services) so that they may continue their public service of protecting, at a reasonable cost upon public finances on a daily and in time of crisis, local populations from routine and major risks, to mitigate the heavy human and financial consequences of disasters.
3. Ask for an exception to the Working Time Directive referring to the respective national laws scheduling the firefighters working and active hours, respecting their health and security, because of the

• urgency of their mission of civil protection,
• constraining night and day schedules required of fire and rescue services to protect communities,
• organizational and functional requirements demanded of firefighters by Member States (recognizing these services are at the same time composed of professional, part time and voluntary firefighters),
• necessity to preserve every European Union Member State’s capacity to respond to their human, property and environmental protection duties.

4. Ask for (in the event that such a solution cannot be accepted so placing the requirements of the Working Time Directive on firefighters and an obligation on legal Courts to consider the Directive’s application on firefighters)

• the exclusion of firefighters from the field of the Directive, in case of exceptional disasters.
• the inclusion of special discounting of working hours for those working as firefighters where this work is their primary employment in the form of:

- balancing the time spent on various duties with equivalent working conditions

- accepting variations in time between  the active and inactive part of shifts

- fixing time for compensatory periods of rest.

• The exclusion of those firefighters who undertake this work as secondary employment in a part time or voluntary way - in adoption of the principles  - foresighted by the communication of the 21st December for the field of the directive in the eventual options n° 1 or n° 2 – that the work being a free or compensated civic service, active, intermittent, eventual, marginal and subordinate to the duty of protecting the citizens, their belongings, and the environment, different to an ordinary worker’s activity.

5. Decide to;

- continue to communicate to those officials leading the second phase consultation the;

- diverse nature of systems of duty and tasks undertaken by firefighters and rescue workers in Europe and,

- the possible negative and unintended consequences arising from the Directive;

- agree, as a team, to impress upon the European Commission, Parliament, Council, Committees and Member States National and Public Powers our common positions.