The European Union Working Time Directive: Securing minimum standards, with gendered consequences

Women's Studies International Forum 39 (2013) 30–41

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The European Union Working Time Directive: Securing minimum standards, with gendered consequences Ania Zbyszewska ⁎ University of Victoria, Faculty of Law, PO Box 2400 STN CSC, Victoria, British Columbia, V8W 3H7 Canada

a r t i c l e

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Available online 18 April 2012

s y n o p s i s Working-time regulation never focused on the promotion of equal opportunities. On the contrary, regulation of working hours has tended to reproduce gendered patterns of work. The European Union's (EU) “bifurcated” approach to different aspects of working-time regulation has been noted by feminist scholars. Picking up this critique, the author closer examines the apparent gender neutrality of the EU's foundational working-time instrument, the Working Time Directive (WTD, Directive), vis-à-vis Directives on Part-time Work and Parental Leave. Using the concept “universe of political discourse,” the paper undertakes to look “behind” the regulations, particularly the WTD, to understand more precisely the rationales and assumptions on which they rest, and their gendered consequences. Examination of the EU universe of political discourse on working time reveals that a more egalitarian approach to this area of regulation failed to develop because the EU's institutional framework, competing discourses of flexibility and security, and the political actors with the highest stakes in their respective promotion, have effectively limited or sidelined other rationales for regulation, including those of work-family reconciliation and gender equality. In the end, the legal choices made on the basis of what was politically possible at the time of the WTD's initial adoption and the political pressures surrounding its recent, unsuccessful revision, constrained those actors willing to expand the political discourse and revise the Directive in a way that was more consistent with the promotion of gender equality. © 2012 Elsevier Ltd. All rights reserved.

While much has been made of the political controversies surrounding the European Union's (EU) Working Time Directive (WTD, or Directive), 1 one aspect of this Directive which has not attracted significant attention has been its been apparent gender neutrality. 2 However, neither the standards prescribed by the Directive, nor the forms of working-time flexibility that this Directive promotes are gender neutral. Much like most labour and employment norms that have evolved in relation to the standard employment relationship (SER), the norms the Directive prescribes largely fail to accommodate the daily realities of many workers, most notably women charged with caring obligations. As this paper suggests, this is so because the universe of political discourse surrounding this “core” working-time instrument has been

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dominated by the rationales of productivity, efficiency and growth, checked only by the concern for the preservation of workers’ basic rights to a healthy and secure working environment. While the latter are no doubt important, the tension between them has marginalized work-family reconciliation and the objective of equal opportunities as potential rationales for regulation. This paper critically analyses the EU approach to workingtime regulation through problematizing the WTD's gender neutrality and its consequences. Part one sets out a theoretical framework for the critical gender analysis of working-time norms. Drawing on work of feminist scholars, the paper then considers how the WTD figures in the overall EU working-time regime, particularly how it compares to the approach adopted by the Directives on Part-time Work and Parental Leave, and why the distinct treatment of various aspects of working-time is problematic. 3 Finally, the bulk of

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the paper analyses the universe of political discourse and historic developments surrounding the EU regulation of working time to determine why the WTD has taken this particular shape, and to consider what the consequences of the Directive's framing are and how they limit its potential development in the future. The paper concludes by suggesting that the current approach to working time adopted at the Community-level not only fails to problematize and re-think the very gendered norms which have contributed to women's labour market exclusion, it tends to re-entrench these norms. As such, far from being transformative, this approach may in fact conflict with the current efforts to facilitate better reconciliation of work and family, more equal distribution of responsibilities for care between men and women, and in turn, more equality in the workplace. Gender and the regulation of working time Regulation of working time was never concerned with the promotion of gender equality (Lehndorff, Bosch, & Rubery, 2007). On the contrary, managing and regulating working time has been a decisive factor in reproducing gendered forms of work organization. In industrialized European economies, work patterns and hours have historically evolved in a manner that made the unpaid work of care increasingly incompatible with participation in paid employment. Specifically, the advent of industrialization and the concomitant changes in the tempo and organization of work (Schor, 1991; Thompson, 2001) on one hand, and the shift of the production site away from the home to the factory (Leete, 2000) on the other, made it more difficult to combine the tasks involved in the process of social reproduction with the participation in full, paid employment (Supiot, 2001). Although intensification of work and increases in work hours that accompanied these changes affected all workers, the fact that traditional gender contracts existing in most European countries assigned the bulk of social reproduction work to women meant that it was the women's ability to combine engagement in both spheres that was most affected (Conaghan, 2006; Fudge, 2005; Leete, 2000). Although particular arrangements that were made to support the process of social reproduction varied across contexts (Esping-Andersen, 1992; Lewis, 1992), in most cases the effect of these changes in work organization was to either exclude women from paid employment or to force them to combine both paid and unpaid work at the expense of double burden or severe consequences to social reproduction (Conaghan, 2006; Fudge, 2005). Women's exclusion or marginalization was further cemented through the dominant working-time regimes that emerged across Europe after the Second World War, and the associated standard employment relationship (SER) (Fudge, 2005, 226; Fudge & Vosko 2001, 271; Supiot, 2001, 59), 4 both of which were constructed on presumption of exclusive engagement and therefore best suiting workers unencumbered by other responsibilities (Conaghan, 2006; Fudge, 2005). While these norms meant to protect workers and ensure the stability and efficiency of Fordist-type enterprises and their production processes, these norms also failed to accommodate women's unique schedules, while the family wage made it possible for many women to remain at home.

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Thus, standard norms helped to further institutionalise gender contracts based on the different incarnations of the breadwinner model (Fudge, 2005, 267; Rubery, Smith & Fagan, 1998, 23; Supiot, 2001), and the underling expectations about the appropriate distribution of women's and men's respective responsibilities for paid and unpaid work. In more recent years, the diversification and flexibilization of employment forms and working-time patterns, combined with shifts in social relations and attitudes, led to mass increases in women's labour market participation. While these changes have challenged the primacy of standard norms of working-time and made opportunities for more diverse, wider range of workers, including care-givers (Perrons, 1999; Rubery, Smith, & Fagan, 1998), certain elements of the SER remain deeply embedded and the gendered legacy of working-time standards persists. Comparative studies on the working-time profiles of men and women across Europe shows that more or less significant discrepancies in hours worked continue in most EU countries notwithstanding the measures taken to improve women's access (Fagan, 2001; Figart & Mutari, 1998, 2000; Lewis, Campbell, & Huerta, 2008; Rubery, Smith, & Fagan, 1999). Indeed, these discrepancies persist because the working-time regimes that exist in most EU member states continue to bear the imprint of the traditional employment models based on the quintessential unencumbered worker (Fagan, 1996, 2001; Fudge, 2005; Rubery, Smith & Fagan, 1999). Although the polarization is rarely all or nothing, most contemporary women workers still work shorter hours than their male counterparts, and they sill tend to spend more time on caring/socially reproductive work. The rise of different forms of working-time flexibility has preserved this polarizaition. Contrary to these patterns, researchers have suggested that working time regimes that have least polarization of hours are most egalitarian because they allow for more equal redistribution of paid and unpaid work between men and women (Mutari & Figart, 2001), and thus are most likely to foster gender contracts based on the universal caregiver (Fraser, 1997) or a dual earner/dual carer (Gornick & Meyers, 2003) models of gender relations. What sort of working-time organization does the EU working-time regime promote? The European Union Working Time Directive – Setting the gender neutral foundation for the EU working-time regime As Mutari and Figart (2001) and Golden and Figart (2003) observed, the EU has instituted a bifurcated approach to regulation of working-time and working-time flexibility, with only some of its instruments addressing the gender and family implications of working-time norms. Notably, the WTD does not acknowledge the gender implications of the full-time hours or the overtime regulations that it sets. Originally adopted on 23 November 1993, the WTD is a relatively traditional piece of protective legislation. Adopted under Article 118a (now article 137) of the Treaty of Rome, 5 the WTD aims to “improve the working environment to protect workers' health and safety.” It does so by setting minimum standards by prescribing maximum permissible weekly hours of work (48 hours), daily and weekly rest periods (11 and 35 uninterrupted hours), paid annual leave (four weeks) and special provisions to protect night workers.6 The Directive also invokes the principle of adaptability of work to worker in

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its article 13, which obligates the member states to take necessary measures to ensure that any changes in the patterns and organization of work do not have undesired consequences for the health and safety of workers. However, the principle of adaptability is limited to “alleviating monotonous work and work at the predetermined work-rate, depending on the type of activity, and of safety and health requirements, especially as regards breaks during working time” (art. 13). Notwithstanding its protective functions, the WTD also provides for considerable flexibility in organization of workingtime to allow for more efficient and effective deployment of labour at the enterprise level. Working-time flexibility in this context, is achieved predominantly through working-time extensions. Extensions beyond the 48-hour norm are possible either within the limits set – for instance by extensions of reference periods for the calculation of the weekly averages – or beyond these limits – through a series of derogations and exceptions from the average maximums for particular categories of workers 7 or specific sectors.8 Although overtime hours must be balanced with time off for the average 48-hour maximum to be respected, the relatively long reference periods for the calculation of this average mean that these time extensions can be potentially carried over significant periods of time. Other extensions of work time are permitted on a more permanent basis, as is the case with the article 18 “opt-out” provision. This last, most controversial of the derogations prescribed by the Directive, makes it possible for member states to include provisions in their national working-time regulations that allow individual employees to “sign off” on their right to be covered by the weekly maximum standard. The Directive's tendency to extend work hours – either collectively, through extended reference periods, or individually, through the opt-out – has been a source of considerable critique and controversy (Barnard, Deakin & Hobbs, 2003; Figart & Mutari, 1998; Kenner, 2004; Supiot, 2001) not the least because it directly conflicts with the overriding objectives of health and safety. Extending working hours that are already based on the male-employment norm is also clearly problematic from the perspective of equality (Mutari & Figart, 2001). As Golden and Figart (2003) have noted, the Directive lacks strong language on reduction of hours – a necessity for a more equal participation of women in standard work – and the language of the Directive is completely silent on its gender and family implications.

work as a solution for those workers unable to engage in fulltime work or seeking a better balance between work and other responsibilities, and for the employers interested in more flexible deployment of labour based on the particular enterprise needs. 9 To address the problems associated with part-time work (low pay, few advancement opportunities, marginalization) the Part-time Work Directive protects parttime workers via the non-discrimination principle. Part-time Directive's promotion and protection of workingtime flexibility via part-time work, and justifying this aim on the basis of work-family reconciliation, stands in stark contrast to the approach adopted by the WTD, wherein standards continue to be set in a seemingly neutral manner for all workers, and the possibilities for flexibility via work-hours extensions abounds. This kind of approach to working-time lacks overall coherence, instead forming a bifurcated regulatory framework (Mutari & Figart 2001, Golden & Figart 2003), which encourages a regime characterized by the polarization of working hours – precisely the sort of working time regime that neither promotes gender equality nor can facilitate better of work-family reconciliation for all workers with caring responsibilities. If the bifurcation of working time discussed above serves as one illustration that EU policy seems to be replicating a working-time regime consistent with a standard, if somewhat modified employment relationship, and the underlying assumptions about women and men's respective roles, the Directive on Parental Leave takes a more egalitarian approach through a more explicit concern with gender equality and social change. Like the Directive on Part-Time Work, the Parental Leave Directive and the framework agreement that it implemented, also cite the Social Charter and invoke principles of equal treatment and reconciliation of “occupational and family obligations”. More emphasis is placed on ensuring that the Directive applies to men and women equally: for instance, the non-transferability clause that ensures that the entitlement to leave cannot be transferred between parents, and the Directive makes several references to guaranteeing equal opportunities for both men and women to take advantage of the leave provisions. This gender equality-based approach is an important step, although one which continues to be limited to parents of young children. A gender-neutral foundation for the gendered working-time regime

Regulating other aspects of working time By contrast with the gender neutral approach adopted in the WTD, the instruments which regulate particular, nonstandard aspects of work time and make special accommodations for workers – the Directives on Part-time Work and Parental Leave – are more explicitly gendered. Adopted at the end of 1997, the Directive on Part-Time Work implements the framework agreement on the protection and promotion of part-time work concluded by the social partners on 6 June 1997. Echoing the agreement, the Directive invokes the principles of improvement of living and working conditions, elimination of all forms of discrimination and promotion of equal opportunities. Thus, by contrast with the standard-setting/preserving aim of the WTD, the Directive on Part-time Work actively promotes part-time

The EU's approach to working time is uneven, with equality and reconciliation principles making their way into some Directives and not others. While some aspects of workingtime regulation are clearly “gendered”, such as part-time work or parental leave, gender focus is entirely absent from the instrument dealing with basic, or standard workingtime norms, the WTD. This approach appears to suggest that the standard work-week protected by the WTD and the long-hours culture which its various derogations enable, are presumed to be the gender-neutral norm ideal workers are expected to fit into, while the other two Directives provide for the gendered “special accommodations.” At the very least, this approach enables continued polarization of working-hours because it promotes different types of working-time flexibility through different instruments

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(Golden and Figart 2003). What can explain this bifurcation? Why has the WTD and the standards it prescribes been so tenuously connected with the promotion of equal opportunities and work-family reconciliation when these goals have featured so prominently in other regulations dealing with specific aspects of working time? I suggest that the absence of focus on gender and equal opportunities in the approach to working-time embodied by the WTD can be in part explained by considering the evolution of the working time universe of political discourse at the EU-level. As the next section will show, the EU approach to working time is, in part, a product of the historic changes in the EU's institutional architecture, the allocation of power between different actors with the influence over the political discourse and the manner in which issues of working-time have been framed (legally and otherwise) and negotiated. The EU universe of political discourse on working time Legal standards, including the norms that regulate hours of work, are constitutive of social relations, which, according to Jane Jenson, are (re)produced through struggles over meaning, representation, power and legitimacy within the “universe of political discourse” (Jenson, 1986, 1989). Although always in the state of flux, these relations can become stabilized, if temporarily, when a compromise or consensus is reached among the social actors who shape this universe (Jenson, 1989, 236). Given the dynamic nature of this process, even this consensus – or the hegemonic paradigm that it produces – however, tends to be temporary and is always up for renegotiation. Social actors are central to this process, but according to Jenson the extent to which they are able to influence this process of renegotiation and reshaping of the hegemonic paradigm depends on their relative power and representational reach. All hegemonic paradigms inevitably subordinate or exclude some identities and alternative competing meanings which too are present within the universe of political discourse. Nonetheless, as Jenson posits, the dynamism of this process means that opportunities do arise for even the subordinated identities to extend their representational reach and strength. Such opportunities surface particularly during periods of “crisis”, which occurs when the hegemonic paradigm's ability to absorb its internal contradictions becomes compromised (Jenson, 1989, 239). The concept of the universe of political discourse, provides a useful framework for understanding the processes through which certain rationales, such as those that justify policy choices and legislative activities, become dominant or hegemonic. In the context of EU working-time policy and regulation, the universe of political discourse has been shaped by the key institutional and political actors like the European Commission, the Council, the European Parliament, the individual member states which comprise the Community, but also by the European social partners (employer organizations and trade union confederations acting at the EU-level) and various lobby groups with the stakes in the issue of working time. Beyond their specific interests in the promotion and institutionalization of particular working-time norms and patterns and forms of work organization, how these actors conceive of the purpose of regulation, whether they seek to expand or limit EU competency, and indeed, how they

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conceptualize the EU itself are all important factors which shape the universe of political discourse, and on which these actors’ interests converge or diverge. Inevitably, this process tends to privilege those rationales around which consensus forms and which are politically possible within the institutional framework of the EU, while subordinating those that are more marginal. As the following section will demonstrate, since at least the 1970s, the key terms of the working-time debate at the European level, have been security and flexibility – (1) the security to maintain existing standards and limit work hours to protect workers health and safety and their right to leisure, and (2) the flexibility to increase or decrease work-hours in a manner suitable for the most economically efficient running of firms. These rationales polarized the political discourse in effect subordinating other considerations, including work-family reconciliation or the gendered consequences of hours regulation. While these latter considerations found expression in the context of agreements and Directives on Part-time Work and Parental Leave, broadening the political discourse around the WTD to include them has proven more difficult. As a result, the workingtime regime that currently exists at the EU level tends to promote those working-time arrangements and patterns that are largely in conflict with the EU's equality objectives. Background: Working-time discourse and regulation since the Treaty of Rome The evolution of the WTD and the EU approach to workingtime needs to be contextualized within the broader trends around working-time regulation, particularly the shift from progressive reductions in work hours to the flexibilization and diversification of working-time arrangements (Bosch, 1995, 1999, 2004; Bosch, Dawkins & Michon, 1994). While interest in more flexible organization of working time was already prominent in the late 1960s (Bosch, 1995; Moffat, 1997; OECD 1973a, 1973b) it was not until the OPEC oil shocks in 1974 that flexibilization began to attract widespread attention. Indeed, according to Graham Moffat (1997), the post-OPEC crisis economic downturn marked the shift in EU working-time flexibility discourse away from the focus on improving working conditions to improving work organization and economic growth. Although the promotion of these goals, particularly those of job creation and addressing unemployment, was initially explored through the prism of working-time reductions (for instance, through job sharing and work redistribution), there was a growing consensus that greater flexibility, including working-time flexibility was indeed the only way to achieve these goals (Bosch, Dawkins & Michon, 1994; Bosch, 1999, 2004; OECD 1995; Strzeminska, 2008). Indeed, experiments with flexibility were already taking place in some national contexts (Bosch, 1995; Bosch, Dawkins & Michon, 1994). The consensus around working-time flexibility was further cemented by other developments in the late 1980s and 1990s. Introduction of new modes of production, spread of information technologies, and the globalization of markets exacerbated the tensions already felt after the oil shocks, causing general pessimism across Europe (Kenner, 2003). Loss of manufacturing jobs due to the dropping demand and migration of firms to the developing countries on one hand, and the privatization of publically-run enterprises and sectors on the other

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(Standing, 2009), meant losses in union membership in most member states of what was then still known as the European Economic Community (EEC). The weakening position of the labour unions increasingly shifted the power over the workingtime agenda towards the business (Bosch, 1994, 1995). The shift towards service-based, 24-hour economy, and the influx of women into the labour market also meant different staffing and organizational demands (Anxo et al., 2004). Consequently, through the 1980s, concessions on working time were made in various national contexts (Bosch, Dawkins & Michon, 1994; Bosch, 1995).10 These concessions were in turn reflected in new national working-time laws that included “longer daily and weekly maximum hours, longer periods of variability, widened possibilities for Sunday work and night work for women and greater derogation from legal minimum standards through collective agreements” (Bosch, 2004 at 26–27). According Bosch (2004, 27) these national developments were being “coordinated” by governments of the EEC, “probably […] to generate a new and more flexible regulatory framework for employers in the more competitive EEC internal market.” Indeed, at the EEC-level, working-time regulation was being debated in these terms. The working-time discussion at the European-level reflected the pressures from above and below. From above the pressure came from the dominant institutions, such as the Organization for Economic Cooperation and Development (OECD), which prescribed deregulation and flexibility of Europe's labour markets as the cures for “eurosclerosis”, high unemployment and lagging performance (Ashiagbor, 2004). This agenda was in line with that of powerful states like the United Kingdom (UK), which were keen to see removal of economic barriers but not in support of any harmonization of “social” standards at the European-level (Adnett & Hardy, 2001; Barnard, Deakin & Hobbs, 2003). The UK's opposition to the 1989 Community Charter of Fundamental Social Rights for Workers (Social Charter) 11 or the Social Chapter (Social Policy Protocol and Social Policy Agreement) of the 1992 Amsterdam Treaty12 exemplified its attempts to thwart the more progressive elements in the EU social agenda at the time (Kenner, 2003). The issue of working time, also embedded in the EU's social agenda, attracted particular opposition of the UK. The 1993 Working Time Directive In 1990, the European Commission proposed a Communitywide Directive the purpose of which would be to secure minimum standards and protections for workers, justified on the basis of health and safety. This proposal was a culmination of nearly two decades of recommendations and negotiations on working-time, none of which were previously successful because the competence to regulate in this area remained with the individual member states until the late 1980s (Kenner, 2004; Moffat, 1997). In 1983, for instance, the European Commission proposed a draft Recommendation on the reduction of work hours, which although aimed at reorganization of work and reduction of unemployment also appeared to advance a broad, more socially attuned approach to working time and working-time flexibility.13 Specifically, the 1983 Recommendation made reference to both, working-time limits and flexibility as also significant from the perspective of workfamily reconciliation and promotion of equal opportunities.

However, with limited competence (hence, the Recommendation approach) and no consensus between the member states and the social partners on the proper approach to this area of regulation, the European Commission's efforts in the 1980s proved futile. One of the key reasons for the lack of consensus among the member states during the 1980s had to do with the broader political-economic trends and outlooks. While the notion that more flexibility was necessary had by then become widely shared, how flexibility should be achieved remained a key point of contention. There were significant differences between the continental European approach and that championed by the consecutive Conservative UK administrations since the end of the 1970s (Hepple, 1990). While on the continent, the minimum standards were not seen as an obstacle to flexibility per se, the UK perceived them as a source of rigidity and pursued the policy of deregulation as the best way of achieving flexibility (Ashiagbor, 2004; Brunn & Hepple, 2009; Deakin & Wilkinson, 1994; Hepple, 1990). Unsurprisingly, the UK disputed whether any working-time regulation was appropriate at the Europeanlevel (Ashiagbor, 2004; Deakin & Wilkinson, 1994; Kenner, 2003). Thus when the WTD was proposed in 1990, it caused significant controversy and invited UK opposition. What made the Directive within reach at this point in time, however, were certain changes in the EU's institutional architecture and the legal and ideological context – mainly, the recent amendment of Article 118a of the EC Treaty (Treaty of Rome) by the 1986 Single European Act 14 and the adoption of the Social Charter in 1989. The first provided the EU with the competence to regulate on matters pertaining to health and safety and, importantly, made matters falling within the ambit of Article 118a subject to the qualified majority voting (QMV) rule. The second, although itself non-binding on the member states, was nonetheless an important symbolic nod towards Europe's “social dimension” and, as such, was crucial in shaping the universe of political discourse. Together, these changes made possible the proposition of EU-wide protective measures on health and safety in the European Commission's 1989 Social Action Programme, and the re-characterization of working time as a matter of health and safety in the European Commission's 1990 draft Directive. Regardless of the UK's continued resistance, the application of the qualified majority voting rule meant that this initiative could be, and indeed, was passed without the UK support in 1993. The legitimacy of the Directive, particularly the health and safety grounds for its adoption, was confirmed in 1996 when the European Court of Justice (ECJ) rejected the UK's challenge to the Directive's legality. 15 However, the political opposition which the UK government managed to mount during the Directive's negotiations proved to exert strong and lasting influence on the universe of political discourse surrounding this particular instrument and on the scope of the Directive itself. Specifically, the inclusion of the opt-out provision (art. 18) and incorporation of significant flexibility through the Directive's other provisions was intended to appease the UK. Importantly, as the UK's position on the issue of working-time was aligned with that of the key representatives of the industry and business at the European-level

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(Kenner, 2003), whose political power was also increasing, the inclusion of the derogations and flexibility was also a response to their political lobbying. At the same time, the other member states and the European Commission were also keen on preserving some scope for flexibility. 16 Ultimately, although the “hard” law harmonization approach was not one that the UK was prepared to accept in the Council, the 1993 Directive only in principle challenged the UK's preferred way of doing the business of regulation. Given that beyond setting the maximum standards the Directive also “harmonized” derogations from these standards, in practice enabling significant extensions of working hours beyond the limits set, some observers have suggested that the key rationale behind the Directive was, in fact, deregulatory 17 (Moffat, 1997); others deemed it “most unsatisfactory compromise” (Kenner, 2004). While the Commission's ability to exploit the broad scope of Article 118a and to take advantage of the change in voting rules made the Directive possible, the approach also had significantly consequences. The health and safety framing, affirmed by the ECJ, meant that a more expansive vision of working time, one that incorporated some focus on the social (and gender) impact of standard working-time norms beyond the health and safety considerations (such as that which the European Commission advanced a decade earlier, in its 1983 draft Recommendation), would be more difficult for political and legal reasons. While establishing the floor of working time rights was symbolically important, the 1993 Directive's overall approach was sparse and very traditional as it assumed a clear distinction between “free time” and “work time” that was the hallmark of standard (Fordiststyle) work organization (Supiot, 2001). As such, the entire Directive was build around a particular conception of “work” and “worker” – one that presupposed availability and reflected the very same assumptions about the subjects of regulation that have formed the basis of the standard employment relationship. Post-adoption developments in the universe of political discourse After the Directive's adoption, several important changes influenced the universe of political discourse. According to Jeff Kenner (2003), the austere tone of deregulation softened slightly as of the mid 1990s, although the economic climate continued to be unfavourable in the period between the 1992 Maastricht and 1997 Amsterdam Treaties. Reflecting political developments in the UK and US, 18 the EU was also trying to forge another alternative to the neoliberal approach to labour market regulation (Kenner, 2003). Flexibility was still portrayed as increasingly crucial to stimulating employment and efficiency, but there was a new shift away from labour market flexibility to workplace flexibility (Kenner, 2003). With an overall focus on activation of the labour market, the key priorities for European employment, as identified by the European Employment Strategy, 19 first introduced in 1997 (Amsterdam) became entrepreneurship, employability, adaptability and promotion of equal opportunities. Likewise, there was a renewed emphasis on the promotion of more flexible, diversified forms of working time that would meet the needs of diverse groups of workers and enable their labour market participation. The 1993 White Paper on Growth,

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Competitiveness and Employment, 20 the 1996 Action for Employment in Europe report 21 and the 1997 Green Paper on the Partnership for a New Organization of Work 22 called for utilization of new forms of work and more workingtime flexibility as key for job creation and adaptability for firms and workers. Flexibility and diversification in work and working-time were being offered as ways to achieving these objectives. Significantly these documents also identified issues like mainstreaming equal opportunities, integration of people with disabilities and lifelong learning, among others, the key elements of the new debate on workplace organization, including reorganization of working-time. This renewed shift to broader conceptualization of workingtime and utilization of flexibility in a more balanced manner led to social partner-negotiated Framework Agreements on parental leave (1995) and part-time work (1997), adopted as Directives in 1996 and 1997, respectively.23 Along with these measures, work-family reconciliation, and to a lesser extent the promotion of equal opportunities remerged as workingtime issues. With the overall emphasis on the need to rethink organization of work and working-time, this broadening of the universe of political discourse also opened the doors to engagement with gender in the context of the WTD. Indeed, although it was entirely absent in the original text of the WTD, the objective of work-family reconciliation was becoming increasingly referred to in this context. When the Directive came under the legally mandated review in the late 2003, the European Commission suggested that “the revision of the Directive could be exploited in such a way as to encourage the Member States to take steps to improve the compatibility of work and family life” (European Commission, 2003a, 21). Indeed, the Commission's 2003 Communication addressed to the social partners, the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions listed work family reconciliation as one of the four items for review, the others being the controversial opt-out provision, the extension of the reference periods for calculation of overtime and the ECJ jurisprudence on the definition of working-time. While the focus on inclusion of work-family issues echoed the European Commission's approach in the 1983 Recommendation, what could compel moving beyond the narrow and traditional conceptualization of working time that was at the heart of the WTD at this stage? As already noted above, one explanation that can be suggested is that the European Commission was operating in a very different policy environment; activation was now paramount and the EU's role in employment policy much more defined. Taking the “long-term view” of the 1993 and 1997 White and Green papers, the Commission cited sociological changes, including “the mass influx of women into the labour market, increase in divorce rates, instability and heterogeneity of household structures and demographic phenomena” (European Commission, 2003a, 21). Moreover, in line with the European Employment Strategy and guidelines, the Commission urged that in addition to benefiting workers, measures enabling better work-family reconciliation and equal opportunities would ultimately lead to higher quality labour force and serve to improve productivity, motivation, availability, and open up greater opportunities for training and professional development. Indeed, it indicated that such measures have had positive results in several

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member states where they had been implemented (European Commission, 2003a, 2003b). Moreover, the links between standard hours of work and gender exclusion were being highlighted by comparative research on working-time (Rubery, Smith, & Fagan, 1998; Rubery, Smith & Fagan, 1999, Fagan, 1996; Figart & Mutari, 1998, 2000) and there was a growing realization that these standards must be adapted to the realities of contemporary labour markets and to reflect the diverse composition of the workplace (Anxo et al., 2004; Supiot, 2001). In the famous Report to the European Commission on the future of labour law, the French legal scholar Alain Supiot (2001) observed that the historic patterns of regulation of time were out of step with the needs of both, enterprises and workers, and that labour and employment law had to be adapted to continue serving its organizational and protective functions. The norms of the Directive, according to Supiot, were very much embedded in this traditional approach (Supiot, 2001). Finally, the importance of working-time limits from the perspective of balancing employment with family life was also affirmed by the ECJ decisions in Jaeger and SIMAP. 24 The key thrust of these decisions was to extend the definition of working-time to include on-call work, something that was previously excluded from the scope of working-time calculations in most national working-time regimes. In its reasons, the ECJ not only affirmed the fundamental importance of the health and safety objective but also recognized that long and intermittent on-call hours of work have a deleterious impact on the worker's ability to partake in family and social activities. In doing so, the ECJ rulings broadened the universe of political discourse opening doors to potential future re-casting of traditional norms of working time in terms of their impact on the ability to balance work and family obligations (McCann, 2005). Paradoxically, one of the key consequences of these rulings was that an increasing number of member states introduced, or planned on doing so, the Directive's opt-out provision in their national employment legislation generally or in the medical sector in particular. 25 The Directive's revision process Given these developments, the Commission's 2003 Communication on the revision of the Directive featured the issue of work-family reconciliation alongside the other major issues for re-examination. However, as was apparent from the responses to the first and second phases of consultation, consideration of work-family reconciliation within the context of the WTD did not meet with a broad-based approval. The only parties to enthusiastically take up this issue were the labour organizations, particularly the European Trade Union Congress (ETUC, 2004) (European Commission, 2003b). The European Parliament also supported the European Commission's broadened focus on health and safety objectives and work-family reconciliation, but ultimately urged the Commission to encourage the social partners to negotiate on this and other issues subject to the potential revision (European Parliament Resolution, 11 February 2004). The organizations of employers, particularly the Union of Industrial and Employers’ Confederations of Europe (UNICE, currently BUSINESSEUROPE) and the European Centre of Enterprises

with Public Participation (CEEP) did not dispute the importance of work-family reconciliation measures per se, but disagreed that a “health and safety” Directive was the appropriate context for regulation on these issues (European Commission, 2003a, 4). Indeed, the contention involved in broadening the scope of the Directive by inclusion of the issue of work and family reconciliation was also flagged by the ETUC. The ETUC was not opposed to doing so; indeed, its position that the optout provision (which enabled extensions of work hours beyond the limits set) should be phased out, was based on the opinion that long hours of work were fundamentally incompatible with the health and safety objectives, as well as work-family reconciliation and the promotion of equal opportunities. However, bearing in mind the Directive's legal basis, the ETUC was careful to characterize work-family reconciliation as a “health and safety” issue and urged the Commission to do the same in order to avoid potential legal/ competence problems (ETUC 2004). The disparate positions assumed by the social partners on the issue of work-family reconciliation were emblematic of the significant differences on the remaining issues. With no negotiations taking place, the European Commission moved to introduce its own proposal for amending the Directive on 22 September 2004. 26 As flagged during the consultation, the three key issues addressed in the proposal were: 1) the individual opt-out of the weekly 48-hour maximum; 2) the reference period over which the average maximum time is calculated; and 3) the redefinition of working time to incorporate time spent on call (European Commission, 2004). Briefly, the amendment proposed to: retain the opt-out provision, albeit with tighter conditions of application; introduce a third category of “inactive” working time to address the ECJ jurisprudence; and generally extend the reference period for calculation of overtime to 12 months (European Commission, 2004). The compatibility between work and family, previously also listed as a key issue, now became one of the broad criteria to be taken into account in the organization of working time, with others being “a high standard of protections of worker's health and safety”, “greater flexibility in managing working time” for companies, and avoiding excessive restrains on small and medium enterprises (European Commission, 2004, 3). More specifically, the issue of workfamily compatibility was included in points five and six of the proposed Directive's preamble, with the first being a broad acknowledgement of its importance, and the second being the call to social partners to negotiate on establishing rules to ensure better compatibility between work and family life. Lack of concrete provision on work-family reconciliation was likely a result of the strong opposition voiced by the business lobby, which reminded the Commission that the Directive was a “health and safety” measure, not a broader social one. Indeed, the ETUC itself urged the European Commission to more seriously take the legal framework within which it was operating, because it was concerned not to jeopardize the Directive itself (Passchier Interview, February 2010, Brussels). The issuing of the 2004 amendment proposal marked the beginning of a prolonged period of consultations and negotiations, during which the proposal moved between

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various committees (Committee of Regions, Economic and Social Committee), the European Parliament, and the Council. Finally, in 2008, within three months of each other, both the Council and the European Parliament adopted their respective common positions.27 Like the positions adopted by the social partners during the consultation process, the Council and the European Parliament's were also significantly distinct. The final position of the European Parliament was largely based on a 2004 report prepared by the Alejandro Cercas, the Spanish Member of European Parliament and the delegate of the Party of European Socialists (the Cercas Report). 28 The Cercas Report, saw the issues of the opt-out and workfamily reconciliation as fundamentally connected. The Report (and the Parliament's position) maintained that the revised Directive should phase out of the opt-out provision as essentially incompatible with the health and safety objective underlying the Directive. Retaining it would not entail “making the regulations more flexible, but doing away with them completely” (European Parliament Cercas Report, 2004,17). The Opinion of the Committee on Women's Rights and Equal Opportunities, attached to an earlier version of the Report (European Parliament, 2004), noted that, although the longhours culture had adverse effects on all workers, its impact on women workers was particularly harmful. Specifically, women's “double burden” of work and family obligations and the fact that women are more likely to combine several part-time jobs to accommodate their care-giving obligations meant that the impact of long hours of combined work was more detrimental to them. Significantly, the Committee also observed that the long hours culture predominant in some professional and managerial jobs constituted a serious obstacle for women's upward mobility, and helped to sustain gender segmentation in the workplace (European Parliament, 2004, 15–16). While these specific suggestions of the Committee were not explicitly incorporated into the European Parliament's position, in its 2008 final position the European Parliament urged that in order to ensure that the references to work and family reconciliation replete in the Commission proposal be more than “empty rhetoric,” specific provisions should enable employees to request changes in working hours and patterns, and oblige employers to consider such requests and refuse them only in the circumstances where the organizational disadvantages would be disproportionate to workers’ benefit. In addition, it proposed that employers should be required to inform workers of “any changes” to the working schedule “well in advance” of any changes to hours or patterns of working time (European Parliament, 2008). While the Council agreed to the inclusion of provisions enabling work and family reconciliation, the provisions that it was willing to support differed significantly from those proposed by the European Parliament. The Council, saw the right to request and the obligation to inform, for instance, in less categorical terms than the majority of the Parliament and it was only prepared to agree to a provision requiring information of employees in “due time” of only “substantial changes,” while asking the member states to “encourage” employers’ to examine employee requests, subject of course, to business needs and both the employer's and employee's need for flexibility (Council of the European Union, 2008). The discrepancies between the Council and the Parliament's positions mirrored the lack of consensus between

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the social partners. UNICE stood firmly on all the issues at stake, and its position was unapologetically focused on its own interests. The ETUC, on the other hand, was certainly more opened to discussing working-time flexibility than it had been in the past, but it urged that flexibility had to be nestled within a protective framework of workers rights and that the individual workers’ needs, including the needs of women (and parents), had to be accommodated (ETUC 2004; Pillinger, 2006). Indeed, over the course of the Directive's revision, the ETUC took an active interest in drawing an explicit link between hours of work, work-family reconciliation and gender equality. This new approach was in part the accomplishment of the ETUC's Confederal Secretary, Catalene Passchier, for whom gendering the ETUC's approach to working time was a key objective since joining the ETUC in 2003 (Passchier Interview, February 2010, Brussels). Despite the apparent expansion of the universe of political discourse around the WTD through more prominent emphasis on issues of work-family reconciliation and equal opportunities, both issues became marginalized in the political debate that ensued. Ultimately, the final discussion focused on the classic tensions between security and protection, and flexibility and efficiency. Even though the extended work hours permitted by some of the WTD's provisions conflicted with both, the effective work-family reconciliation and equal opportunities, and the protection of health and safety, it was the latter that eventually dominated the discussion as the politically and legally safer point of resistance for even those parties who were sympathetic to the broadening of the discourse on working-time. Both, Alejandro Cercas and Jean Lambert, the Greens Member of European Parliament who was particularly active on the issue of working time, acknowledged that the focus on gender was ultimately too politically risky given the legal basis of the Directive (health and safety), the already delicate political situation and the disparate positions adopted by the Council and the European Parliament (Cercas Interview, February 2010, Brussels; Lambert Interview, February 2010, Brussels). Thus, when the European Parliament and the European Council failed to reach consensus in the late 2009 and the revision talks collapsed, the issues of opt-out, reference period and definition of working time were the key foci of the debate (Cercas Interview, February 2010, Brussels; Lambert Interview, February 2010, Brussels). Issues of reconciliation were present in the proposals for revision and indeed received significant attention thanks to the ETUC and European Parliament's positions, but ultimately got sidelined in the political shuffle between securing the existing work-hours standards and retaining the flexibility to extend them. Bifurcating working time with gendered consequences As the story of the WTD's original negotiations and unsuccessful revision demonstrates, what is politically possible and whose interests tend to hold most political sway in a particular context are important variables that act as “gatekeepers” for what makes it into the dominant universe of political discourse and what remains on its sidelines. In case of the 1993 WTD, the decision to embed it in the very traditional health and safety rationales should have been relatively uncontroversial, yet proved exactly opposite. Although the controversy

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had much to do with the ongoing tensions between security and flexibility, regulation and deregulation discourses, and the reach of the Community's competencies, its political effect was also to construct a rather narrow universe of political discourse around this particular instrument. Specifically, in focusing on the political goal of achieving working-time regulation at the Community-level, the conceptualization of working time was narrowed and other rationales for regulation of working time, such as work-family reconciliation and promotion of equal opportunities, were not reflected in the Directive. Perhaps uncontroversial on its face, this oversight is puzzling, particularly since both of these issues were by the time of the Directive's adoption already fairly prominent in the broader EU political discourse. Indeed, the issue of work-family reconciliation had been brought up in the context of working-time regulation by the Commission's failed 1983 draft Recommendation for a measure on working time, but never made it into the text of the 1993 Directive. More strikingly, gender equality was completely absent as a consideration in the 1993 Directive, although the framework agreements and directives on Part-time Work and Parental Leave, which followed within a few years, and which also addressed particular elements of working-time organization, were very much nestled in the equal opportunities and work-family reconciliation rationales. One of the key differences between the WTD and the Directives on Part-time Work and Parental Leave is the fact that the latter two grew out of framework agreements first negotiated and agreed to by the social partners, and only then implemented by way of a Community instrument. Moreover, both Directives invoke the Council's 1994 statement of commitment to economic and social convergence in the Union. 29 As a result of their negotiated nature and the more obvious shift towards social convergence in the Community approach to integration, these instruments were not subject to the same legal and political limitations and controversies and tensions that made the WTD so contentious. Moreover, during this time, reconciliation of work and family, adaptability of work to workers and gender equality were being highlighted by the 1997 European Employment Strategy and the post-Amsterdam employment guidelines. The need to facilitate more flexible – from a worker's perspective – organization of working time, was also noted by the Commission's Green and White papers. Thus, the historical moment of their adoption and the fact that the Community legal framework was more receptive to engaging with social policy than it was at the time of the WTD's negotiation likely facilitated the more direct engagement with gender in the context of the Part-time work and Parental Leave Directives. Since the WTD was introduced and justified as a health and safety instrument to take advantage of Article 118a and the qualified majority rule, any mention of gender equality or similar “social” rationales would have surely met with opposition from the already reluctant UK and other EU member states which sought to limit the social aspects of the Community-project. Indeed, as the debates over the WTD's revision suggested, it has been the limiting role of the health and safety rationale and its narrow legal basis that, in part, prevented more expansive interpretation of the need to regulate working-time, which was possible in case of the other two instruments.

While these developments had a significant role to play, the relative lack of controversy and more apparent gendering of the Part-time Work and Parental Leave Directives was not just a result of their different legal status, politics and convenient timing. Another reason for the absence of gender focus – and one which probably would have kept gender language out of the text even if the political reasons for doing so didn't exist – was the fact that the EU employment policy and regulation have historically evolved around the norms of the standard-employment relationship, within which they continue to be embedded. As observed at the outset, standard working-time norms, even those most progressive from a social/worker protection perspective, have been generally set on the presumption of exclusive engagement, with the subject of regulation being an unencumbered (male) employee. Consequently, regulations dealing with standard norms of working time – the daily and weekly limits – have not been explicitly gendered even in the context of changing labour market realities. The WTD, in particular, remained very much embedded in these standard notions of employment; it provided the “gender neutral” fundament for the EU working-time regime. As the WTD revision consultation demonstrated, some attempts have been made to expand the universe of political discourse surrounding standard conceptions of working time to include the references to work-family reconciliation and gender equality, thereby challenging the standard conceptions of work and their gendered consequences. However, the same example shows that doing so in the context of the WTD has proven quite challenging for those social and institutional actors promoting such an expanded view of working time. Both, the European Parliament and the ETUC, sought to mainstream the relationship between equal opportunities and working time, drawing on expert reports also available to the Commission staff and other actors involved in the negotiations (Pereira Interview, February 2010, Brussels). Indeed, the relationship between the optout's promotion of long hours and women's opportunities was also something that got flagged by the European Economic and Social Committee's consultation/re-examination submission as a matter that should be analyzed in greater depth. However, even best intentions can be abandoned in light of political pressures. Rhetoric and official submissions aside, even those parties acknowledging the link between equality and working time were willing to drop it under political pressure. As the Repporteur Alejandro Cercas and Jean Lambert, both outspoken supporters of the removal of the opt-out, noted, the political debate on the working-time – at least in the context of the WTD – became dominated by the balancing of the health and safety and economic efficiency/ flexibility rationales. In its almost exclusive focus on these rationales, the actual discussion of the opt-out completely failed to engage with and draw the link between the adverse effects of long hours on women's employment and advancement opportunities or even on the fact that long hours are incompatible with balancing professional and familial responsibilities. According to a senior Commission employee who participated in the revision process and appeared well aware of the connection between gender and workingtime, these issues were never brought up in the Council discussions on the WTD revision (Pereira Interview, February

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2010, Brussels), which were entirely dominated by the balancing of economic efficiency and basic health and safety objectives. He observed that the discussion quickly shifted from technical considerations to purely ideological and political ones (Pereira Interview, March 2010, Brussels). Similarly, those discussing the contentious issues of the reference period and on-call work failed to link the impact of long hours on women's equal access to employment and to the perpetuation of gendered patterns of work. Long-hours working was at the heart of both the issue of long reference periods and the redefinition of on-call work, with the latter actually operating in the sectors dominated by women, and with both having a potentially adverse impact on the issues of work-family reconciliation. Yet the negative effects of these provisions were not really taken into account either. The entire discussion of on-call work was dominated by financial considerations. Despite all the work-family reconciliation rhetoric, the ultimate dispute was not over employee-friendly forms of flexibility but rather over the ability to extend working hours – the classic form of negative flexibility – and about money. The promotion of gender and equal opportunities might have been related issues, but they did not fully make it into the universe of political discourse and onto the bargaining table even at the midnight hour of negotiations. Under political pressure, even those parties such as the ETUC and the Commission, both of which attempted to broaden the debate on working time to include gender, were not quite able to do so. Conclusions The issue of working time is crucial to the long-term social and economic sustainability of European economies. It is also crucial to achieving more gender equality. Although there has been a significant shift towards work-family reconciliation in the European regulation of working-time, the selective nature of this engagement, and in some cases, the very late recognition of the connection between working-time regulation and issues of gender equality, have led to an EU workingtime policy which lacks coherence and to a working-time regime that perpetuates the SER-centric model of employment which is no longer viable. Specifically, the analysis of the working-time regime that has evolved at the EU-level and the universe of political discourse within which the particular instruments that comprise it have been embedded, reveals that the “gender neutral” foundation of the contemporary EU working-time regime – the WTD – was informed by the same gendered assumptions about organization of work and availability of workers, that motivated the now outdated SER-centric norms of employment. While the flaw and consequences of the “neutral” EU approach towards working time have recently become more apparent and increasingly acknowledged by various political and institutional actors shaping the universe of political discourse in this area, altering the course and gendering this instrument has proven rather difficult. As the controversies and discussions surrounding the WTD demonstrate, the decisions taken on the basis of what was politically and legally possible at the time of the Directive's adoption, the classic tensions between security and flexibility discourses and the interests of the political and institutional actors involved in their shaping

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have significantly limited the political discourse and the legal options around this Directive on the going forward basis. The recent failure to revise the Directive and broaden the universe of political discourse to include more explicit gender engagement shows that gender continues to be its most marginal element. At the same time, some hope remains that the failure of the “health and safety” rationale for the Directive may open doors to a more prominent engagement with gender and work-family reconciliation agendas in the future, thereby creating a more coherent approach to working time at the EU-level. Only this type of coherent approach which is based in a thorough re-thinking of working-time standards from the perspective of a worker-carer, can lead to more sustainable working-time regimes that meaningfully address the gender consequences of working-time policies. End Notes 1 Dir 93/104/EC Working Time Directive (OJ 1993L307/18), Dir 2003/88/EC of the European Parliament and of the Council (OJ L 299, 18.11.2003). 2 For a notable exception see Figart & Mutari, 1998. 3 Dir 97/81/EC concerning the Framework Agreement on part-time work (OJ 1998L14/9), Directive (96/34/EC) concerning the Framework Agreement on parental, 1996L 145/4). 4 Specifically, the SER was characterized by full-time, full-year work, usually executed on employer's premises, under their supervision and typically lasting over the employee's life-course (Müchenberger 1989, Supiot, 2001). The dominant working-time regime consisted of 8-hour days, 48- and later 40-hour weeks (Lee, McCann, & Messenger, 2007). 5 Treaty Establishing the European Economic Community, 25 March 1957, 298 U.N.T.S. 3 (EEC Treaty or Treaty of Rome). 6 Article 6 sets the 48-hour weekly maximum; the daily break is set by article 4; daily and weekly rest is set by article 5; annual leave is set by article 7(2); night work provisions are set by articles 8–11. 7 Article 17(1), for instance, provided that the 48-hour maximum calculated over the basic period of four months did not apply to managerial staff or workers with “autonomous decision-making power,” “family workers,” and workers “officiating at religious ceremonies in churches and religious communities.” 8 The 1993 Directive excluded a number of sectors, including air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training. These sectors were eventually included by the so called “horizontal directive” in 2000 (2000/24/EC) and a Council Directive on the organization of the working time of persons performing mobile road transport activities adopted on 12 March 2002. 9 That the latter is of utmost importance is clear from references to “employment intensiveness”, “flexibility” and “requirements of the competition”, all hallmarks of the economic-growth-through-efficiency-and-employmentactivation rationale. 10 Bosch, Dawkins and Michon, 1994 cite Sweden, France, Belgium as having made legislative changes by that time, and similar laws being on the agenda in Germany, Austria and Netherlands (Bosch, Dawkins & Michon, 1994 at 26). 11 European Commission (1993), Community Charter of Fundamental Social Rights for Workers, Luxembourg: Commission of the European Communities. 12 Treaty on European Union (EU), 7 February 1992, 1992 O.J. (C 191) 1, 31 I.L.M. 253. 13 During the 1980s, the European Commission also proposed draft Directives on part-time and temporary work, both of which were also unsuccessful. What made the approach to working-time more distinct during this period was the overall emphasis on reduction and compression of hours. For instance, the draft Recommendation encouraged reorganization of hours and more flexible organization of work, but urged against excessive reliance on overtime. The draft Directives on part-time and temporary work, on the other hand, urged member states to promote these forms of work for all types of workers in all types of occupations; not just women or lower level jobs. 14 Single European Act, 17 February 1986, 1987 O.J. (L 169) 1, 25 I.L.M. 506). 15 Case C-84/94 UK v. Council of the EU [1996] ECR I-5755. The ECJ rejected the UK arguments against the Directive's legality and thus confirmed that article 118a (article 137) formed the appropriate basis for regulation of working-time and the health and safety rationale was appropriate as well.

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16 Indeed, the original draft of the Directive did not even contain a maximum weekly norm, and it was only at the insistence of the European Parliament that the 48 hour maximum was inserted. 17 Indeed, in subsequent years, many of the member states used the provisions of the Directive to progressively re-regulate and flexibilize their working-time regimes. 18 By 1996, the Conservatives were replaced by the British Labour headed by Tony Blair, and in the US, the Clinton Democrats were as of 1993 replacing the G.H.W. Bush Republicans. 19 The European Employment Strategy, first introduced in 1997, provides a “soft” regulatory framework (through the “open method of coordination” by which employment strategies of the EU member states are “coordinated” through a series of “soft” guidelines, sharing of information and discussions. 20 Growth, Competitiveness, Employment: The Challenges and Ways Forward into the 21st Century – White Paper, COM(93) 700, December 1993. 21 Action for Employment in Europe. A Confidence Pact, CSE (96) 1 final, 05.06.1996. 22 Partnership for a New Organization of Work - Green Paper. Document drawn up on the basis of COM (97) 128 final, 16 April 1997. Bulletin of the European Union, Supplement 4/97. 23 Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC, OJ L145, 19.06.1996; Council Directive 97/81/EC of 15 December 1997 on the framework agreement on part-time work. 24 Sindicato de Medicios de Asistencia Publica v. Consellaria de Sanidad, Consumo de la Generalidad Valenciana, European Court Reports 2000, & Case C303/98 (SIMAP), 2000, Case C-303/98 (SIMAP); Landeshaupstadt Kiel v. Norbert Jaeger & European Court Reports, 2003, Case C-151/02 (Jaeger). 25 Namely, Germany, Netherlands and Spain, with several of the new member states preparing to adopt similar legislation. Moreover, the opt out was partially adopted in France and Luxemburg, although in the former it was adopted within a framework of national working time standards that were more protective than those offered by the WTD, and in the latter, in a single sector only (hotels and catering) and with fairly strict and short reference periods. 26 Proposal for a Directive of the European Parliament and the Council Amending Directive 2003/88/EC Concerning Certain Aspects of the Organization of Working Time. Online: bhttp://eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=CELEX:52004PC0607:EN:HTML> 27 Common Position (EC) No 24/2008 of 15 September 2008, OJ C 254E E/04. 28 Report on the proposal for a directive of the European Parliament and of the Council amending Directive 2003/88/EC concerning aspects of the organization of working time: COM(2004)0607 – C6-0122/2004 – 2004/0209(COD) (the Cercas Report). 29 The commitment was stated in the Council's Resolution of 6 December 1994 on certain aspects for a European Union social policy, OJ C 368, 23. 12. 1994, p. 6.

References Adnett, Nick, & Hardy, Stephen T. (2001). Reviewing the Working Time Directive: rationale, implementation and case law. Industrial Relations Journal, 2, 114–125. Anxo, Dominique, Fagan, Colette, McCann, Deirdre, Lee, Sangheon, & Messenger, Jon C. (2004). Implications for Working Time Policies. In Jon C. Messenger (Ed.), Working Time and Workers’ Preferences in Industrialized Countries. Finding the Balance. London: Routledge 2004. Ashiagbor, Diamond (2004). The European Employment Strategy: Labour Market Regulation and New Governance. Oxford University Press. Barnard, Catherine, Deakin, Simon, & Hobbs, Richard (2003). Opting out of the 48-hour week: employer necessity or individual choice? An empirical study of the operation of Article 18(1)(b) of the Working Time Directive in the UK. Industrial Law Journal, 32, 231–252. Bosch, Gerhard (2004). Towards a new standard employment relationship in Western Europe. British Journal of Industrial Relations, 42, 617–636. Bosch, G. (1995). “Synthesis Report“ in Flexible Working Time: Collective Bargaining and Government Intervention. Paris: OECD. Bosch, Gerhard (1999). Working Time: Tendencies and Emerging Issues. International Labour Review, 138(2). Bosch, Gerhard, Dawkins, Peter, & Michon, Francois (1994). Times are changing: Working time in 14 industrialized countries. Geneva: International Institute for Labour Studies. Brunn, Niklas, & Hepple, Bob (2009). Economic Policy and Labour Law. In B. Hepple, & B. Veneziani (Eds.), The Transformation of Labour Law in Europe. Oxford: Hart Publishing.

Case C-84/94 UK v. Council of the EU [1996] ECR I-5755. Cercas Report (2004). Report, on the proposal for a directive of the European Parliament and of the Council amending Directive 2003/88/EC concerning certain aspects of the organization of working time, COM (2004) 0607 – C6-0122/2004 – 2004/0209(COD) (the Cercas Report). Cohaghan, Joanne (2006). Time to Dream? Flexibility, Families and Working Time. In Judy Fudge, & Rosemary Owens (Eds.), Precarious Work, Women and the New Economy. Hart Publishing. Council of the European Union (2008). Common Position (EC) No 23/2008 adopted by the Council of 15 September 2008 with a view to the adoption of Directive 2008/…/EC of the European Parliament and of the Council of … amending Directive 2003/88/EC concerning certain aspects of the organisation of working time (2008/C 254 E/03), OJ C 254 E/26. Deakin, Simon, & Wilkinson, Frank (1994). Rights vs Efficiency: The Economic Case for Transnational Labour Standards. Industrial Law Journal, 23, 289. Directive (93/104 EC) concerning certain aspects of the organization of time, OJ 1993 L307/18. Directive (97/81/EC) concerning the Framework Agreement on part-time work, OJ 1998 L14/9. Directive (96/34/EC) concerning the Framework Agreement on parental, OJ 1996 L 145/4. Esping-Andersen, Gosta (1992). Three Worlds of Welfare Capitalism. Princeton University Press. ETUC, Reconciling professional, private and family life: a key objective for the European trade union movement. Newsletter. (no date). ETUC (2004). ETUC Position in the Second Phase of Consultation of the Social Partners at Community level on the revision of Directive 93/104/EC concerning certain aspects of the organisation of working time (Working Time Directive). ETUC Online: bhttp://www.etuc.org/a/245> (Last accessed on February 5, 2012). European Commission (2003a). Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of Regions and the social partners at Community level concerning the re-exam of Directive 93/104/EC concerning certain aspects of the organization of working time. COM(2003) 843 final/2. European Commission (2003b). Second Phase of Consultation of the Social Partners at Community level concerning the revision of Directive 93/104/EC concerning certain aspects of the organization of working time. European Commission (2004). Proposal for a Directive of the European Parliament and of the Council amending Directive 2003/88/EC concerning certain aspects of the organization of working time. COM/2004/0607 final - COD 2004/0209. European Commission (1993). White Paper on Growth, Competitiveness, Employment: The Challenges and Ways forward into the 21st Century, COM (93) 700 final. European Parliament (2008). Recommendation for Second Reading on the Council common position for adopting a directive of the European Parliament and of the Council amending Directive 2003/88/EC concerning certain aspects of the organisation of working time (10597/2/2008 – C6-0324/2008 – 2004/0209(COD)), A6-0440/2008, 11.11.2008. European Parliament (2004). Report on the organisation of working time (Amendment of Directive 93/104/EC)(2003/2165(INI)). Committee on Employment and Social Affairs Final A5-0026/2004 (29 January 2004). Fagan, Colette (1996). Gendered Time Schedules: Paid Work in Great Britain. Social Politics, 72–106. Fagan, Colette (2001). Time, Money and the Gender Order: Work Orientations and Working-Time Preferences in Britain. Gender, Work and Organization, 8(3), 239–266. Figart, Deborah M., & Mutari, Ellen (1998). Degendering Work Time in Comparative Perspective: Alternative Policy Frameworks. Review of Social Economy, 56(4), 460–480. Figart, Deborah M., & Mutari, Ellen (2000). Work Time Regimes in Europe: Can Flexibility and Gender Equity Coexist? Journal of Economic Issues, 34(4). Fraser, Nancy (1997). Justice Interruptus. Critical Reflections on the Post-Socialist Condition. London: Routledge. Fudge, Judy (2005). A New Gender Contract? Work/Life Balance and Working-Time Flexibility. In Joanne Conaghan, & Kerry Rittich (Eds.), Labour Law, Work and Family. Oxford: University Press. Fudge, Judy, & Vosko, Leah F. (2001). Gender, Segmentation and the Standard Employment Relationship in Canadian Labour Law and Policy. Economic and Industrial Democracy, 22(2), 271–310. Golden, Lonnie, & Figart, Deborah M. (Eds.). (2000). Working Time: International trends, theory and policy perspectives. London: Routledge. Gornick, Janet C., & Meyers, Marcia K. (2003). Families That Work: Policies for Reconciling Parenthood and Employment. New York: Russell Sage Foundation. Green Paper: Partnership for a New Organization of Work COM (97) 128 final.

A. Zbyszewska / Women's Studies International Forum 39 (2013) 30–41 Hepple, Bob (1990). Working-time: A New Legal Framework? Employment Paper No. 3. Institute for Public Policy Research. Jenson, Jane (1989). Paradigms and Political Discourse: Protective legislation in France and United States before 1914. Canadian Journal of Political Science, 22(2), 235–258. Jenson, Jane (1986). Gender in Reproduction or Babies and the State. Studies in Political Economy., 20 1986. Kenner, Jeffrey (2004). Re-evaluating the concept of working time: an analysis of recent case law. Industrial Relations Journal, 35(6), 589. Kenner, Jeffrey (2003). EU Employment Law: From Rome to Amsterdam and Beyond. Oxford: Hart Publishing. Landeshaupstadt Kiel v. Norbert Jaeger, European Court Reports 2003, Case C-151/02 (Jaeger). Lee, Sangheon, McCann, Deirdre, & Messenger, Jon C. (2007). Working Time Around the World: Trends in working hours, laws and policies in comparative perspective. ILO Geneva: Routledge. Leete, Laura (2000). History and Housework: Implications for Work Hours and Family Policy in Market Economies. In Lonnie Golden, & Deborah Figart (Eds.), Working Time: International Trends, Theory and Policy Perspectives. New York: Routledge 2000. Lehndorff, Steffen, Bosch, Gerhard, & Rubery, Jill (2007). European employment models under pressure to change. International Labour Review, 146, 253–277. Lewis, Jane (1992). Gender and the Development of Welfare Regimes. Journal of European Social Policy, 2(3), 159–173. Lewis, Jane, Campbell, Mary, & Huerta, Carmen (2008). Patterns of Paid and Unpaid Work in Western Europe: Gender, Commodification Preferences and the Implications for Policy. Journal of European Social Policy, 18(1), 21–37. McCann, Deirdre (2005). The Role of Work/Family Discourse in Strengthening Traditional Working Time Laws: Some Lessons from the On-Call Work Debate. Law in Context, 23(1), 127. Moffat, Graham (1997). Competition, Competitiveness and Re-Regulating the Labour Market: The Working Time Directive. Nottingham Law Journal, 6, 46–68. Müchenberger, Ulrich (1989). Non-standard forms of work and the role of changes and labour and social security legislation. International Journal of Sociology of the Law, 17, 267–280.

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Mutari, Ellen, & Figart, Deborah, M. (2001). Europe at the Crossroads; Harmonization, Liberalization and the Gender of Work Time. Social Politics Spring, pp. 36–64. OECD (1973a). Flexibility in Working Life. Paris: OECD 1973. OECD (1973b). New Patterns for Working Time. International Conference, Final Report. Paris: OECD. OECD (1995). Flexible Working Time. Paris: OECD. Pillinger, Jane (2006). Challenging Times: Innovative ways of organizing working time: the role of trade unions. Report of ETUC Conference. ETUC. Perrons, Diane (1999). Flexible working patterns and equal opportunities in the European Union. The European Journal of Women's Studies, 6, 391–418. Rubery, Jill, Smith, Mark, & Fagan, Colette (1999). Women's Employment in Europe: Trends and Prospects. London: Routledge. Rubery, Jill, Smith, Mark, & Fagan, Colette (1998). National Working Time Regimes and Equal Opportunities. Feminist Economics, 4(1), 71–101. Schor, Juliet (1991). The Overworked American. Basic Books. Sindicato de Medicios de Asistencia Publica v. Consellaria de Sanidad y Consumo de la Generalidad Valenciana, European Court Reports 2000, Case C-303/98 (SIMAP). Standing, Guy (2009). Work After Globalization: Building Occupational Citizenship. Cheltenham, UK, and Northampton. MA: Edward Elgar. Strzeminska, Helena (2008). Working Time and its Organization in New Members States of EU. IPISS: Warsaw. Supiot, Alain (2001). Beyond Employment: Changes in Work and the Future of Labour Law in Europe. Oxford: University Press. Thompson, Edward P. (2001). Time, Work Discipline and Industrial Capitalism” (original publication (1967). Past and Present, 38.

Other sources Interview Notes, Passchier, Catalene (ETUC). February 2010, Brussels. Interview Notes, Cercas, Alejandro (European Socialists), February 2010, Brussels. Interview Notes, Lambert, Jean (EU Green Party), February 2010, Brussels. Interview Notes, Pereira, Fernando (European Commission), February 2010, Brussels.