Why the EU Should Not Re-Integrate Sunday into the Working Time Directive

(European flags in front of the European Parliament, Brussels – TPCOM/Flikr – Creative Commons)

The European Union presently has a Working Time Directive  (2003/88/EC), passed in 2003, which requires member countries to guarantee the following rights for all workers:

• a limit to weekly working hours, which must not exceed 48 hours on average, including any overtime
• a minimum daily rest period of 11 consecutive hours in every 24
• a rest break during working hours if the worker is on duty for longer than 6 hours
• a minimum weekly rest period of 24 uninterrupted hours for each 7-day period, in addition to the 11 hours’ daily rest
• paid annual leave of at least 4 weeks per year
• extra protection for night work, e.g.
  • average working hours must not exceed 8 hours per 24-hour period,
  • night workers must not perform heavy or dangerous work for longer than 8 hours in any 24-hour period,
  • night workers have the right to free health assessments and, under certain circumstances, to transfer to day work.

On March 2, 2015, the European Sunday Alliance, an alliance of labor unions, religious organizations, and other interested groups, continued ongoing efforts to ask the European Union to recognize that Sunday is the appropriate 24 hour weekly rest period, stating,

“People usually work on Sundays or at irregular hours out of financial necessity rather than by choice. Work-free weekends traditionally support the independence of persons from a purely economic-driven lifestyle. Sundays are the reference for the time organisation of state and society. The Directive 94/33/EC acknowledges Sunday as the weekly rest day for young people. It is important to enable families to enjoy a proper family life. In times of growing individualism collective spare time becomes more important. Only a well-protected common weekly day of rest as requested in the European Social Charter enables citizens to enjoy full participation in cultural, sports, social and religious life.” 

See http://www.europeansundayalliance.eu/site/newsevents/breakingnews/article/170.html?SWS=dbae9e610163c0355990d1cff713d8d0

The Alliance called for action on March 3, 2015 (PDF), stating, “We believe that the current working time directive does not adequately address the issue of balancing work and private life. Nor does it provide sufficient guarantee that workers across Europe can enjoy a common weekly day of rest. This makes it urgent to take an active role to ensure that EU citizens work life balance is protected and enhanced.”

“So act now and in the context of the review let’s together promote and re-integrate the Sunday as the common weekly day of rest within the EU and underline the importance of decent working conditions for all!”

While supportive of the workers’ rights, Dr. Brighton Kavaloh, the Founder and Director of the Adventreligio-legal Perspectives, a religious educational organization located in the United Kingdom, expressed support for the Working Time Directive as written while opposing the reintegration of Sunday into the directive.

The following is Dr. Kavaloh’s response:

The EU Commission Public Consultation on the Review of the Working Time Directive

(WTD2003/88/EC)

Impact of the Working Time Directive

Following the European Parliament and the Council’s failure to reach agreement in April 2009 and subsequently the European Social Partners two-stage consultations in accordance with Article 155 of the TFEU Treaty ended in a stalemate in December 2012, I welcome the effort of the Commission through this public consultation to review the current Working Time Directive (WTD2003/88/EC).

However, I fully agree that the Working Time Directive enhances as it were, the worker’s health and safety at their work place and also fulfils the provision for reconciliation of work and private life. Therefore I call upon the Commission not to officially reintegrate “Sunday as the commonly weekly day of rest”^[1] within the European Union. There are three legal reasons for this, in that, such a measure is:

1.  UNLAWFUL

When a similar Working Time Directive 93/104/EC of 23 November 1993 had in principle Sunday as a weekly rest day enshrined into the European Community Law, the European Court of Justice (ECJ) annulled it after a legal challenge on 12 November 1996. The court’s ruling to the Council was as follows;

“However, the connection between the health and safety of workers and the requirement that the weekly rest period ‘shall in principle include Sunday’, in the second sentence of Article 5 of the Directive, had not been established. There was no explanation why Sunday, as a weekly rest day, is more closely connected with the health and safety of workers than any other day and, accordingly, that sentence would be annulled.”^[2]

The court has since not revoked its decision. It was unlawful for Sunday legislation to be enshrined in the Working Time Directive 93/104/EC, and so will it be for the current Working Time Directive 2003/88/EC. No new legal reasons or arguments have been put before the ECJ. My conclusion is that it was previously unlawful and so it is today.

1.  UNCONSTITUTIONAL

In response to a previous attempt to position Sunday as an official weekly rest day in the current Working Time Directive 2003/88/EC, the EU Commission issued a communiqué based on the principle of subsidiarity, that such a measure at EU level would be inappropriate. It argued:

“The question of whether weekly rest should normally be taken on a Sunday, rather than on another day of the week, is very complex, raising issues about the effect on health and safety and work-life balance, as well as issues of a social, religious and educational nature. However, it does not necessarily follow that this is an appropriate matter for legislation at EU level: in view of the other issues which arise, the principle of subsidiarity appears applicable.”^[3]

The Commission has not said anything to the contrary other than affirm that the above statement was a matter that fell within the Member States competence.

In addition I would like to draw to the Commission’s attention Laslor Andor’s assertion that many people in Europe had argued “against a work free Sunday being regulated by Brussels, deploying the EU principle of subsidiarity that requires that decisions should be taken at the closest government level to the citizen as appropriate.”^[4]

1.  INDIRECT DISCRIMINATION

Religious discrimination is prohibited by the European Community law. According to Case 13/63 Italy v Commission “Discrimination may consist not only in treating like cases differently but also in treating different cases alike.”^[5]

And as such to enact a law that treats minority groups, who worship on alternative days such as Fridays and Saturdays or non believer or worshippers in the same way as those who worship on Sundays is to discriminate against those minority groups.

Footnotes:

1. CALL FOR ACTION – www.europeansundayalliance.eu ↑
2. Case -84/94 United Kingdom v Council of the European Union, Industrial Relations Law Reports, Vol. 26, No.1, January [1997] IRLR 32. ↑
3. Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and the Committee of the Regions. Reviewing the Working Time Directive. COM (2010)801 final. Brussels. p.11 ↑
4. www.eu-observer.com/851/29763 See also Nigel Forster, EU treaties and legislation 2011 – 2012 (Blackstone’s statutes – 2011), p.2 ↑
5. Case 13/63, Italy v Commission [1963] ECR 165 and also Case 130/75, Vivien Prais v Council of the European Communities [1976] ECR 1 – 1592 and 1 – 1593. ↑