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The European working time directive – Facts and issues
Journal of Cranio-Maxillofacial Surgery (2009) 37, 110e112 Ó 2008 European Association for Cranio-Maxillofacial Surgery doi:10.1016/j.jcms.2008.09.001, available online at http://www.sciencedirect.com
Editorial The European working time directive e Facts and issues
education time per week for trainees. The proposal of 48 h + 12 is problematic due to the implication that the additional hours should be unpaid. So far many member states have delayed the rectification of European laws in to their national laws (Waurick et al., 2007). Indeed, a press release of the European Commission published on September 20, 2006 contains the following statements: ‘‘(.) As almost all Member States seem to be in breach of the court rulings, Commissioner Spidla has drawn the Council’s attention to the urgency of bringing a balanced solution to the problem. (.) It is unacceptable that citizens suffer from this the political deadlock.’’ A decision of Council is still awaited in the making.
DEFINITIONS The Working Time Directive of the European Union (EWTD e Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time, Official Journal L 307, 13/12/1993 pages 0018-0024; amended by Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000) is a collection of regulations concerning hours of work, designed to protect the health and safety of workers (note: not patients, not employers) and is based on Article 118a of the Treaty of Rome. The basic rules of the EWTD are simple: ‘‘An adult worker is entitled to a rest period of not less than 11 consecutive hours in each 24-hour period during which he works for his employer’’. The average working week for a junior doctor should be no more than 56 h, decreasing to 48 h by August 1, 2009. The period over which average working hours are to be calculated is a rolling period of 17 weeks e ‘‘the reference period’’. All employees must have atleast a minimum of two rest periods of 24 h in a 2 week period, and 4 weeks of annual leave. Night work is restricted to 8 h in any 24 h period. The Working Time Directive has been clarified and interpreted through a number of rulings in the European Court of Justice. The most notable of these have been the ‘‘SiMAP’’ and ‘‘Ja¨ger’’ judgements (Sindicato de Medicos de Asistencia Publica v. Conselleria de Sanidad y Consumo de la Generalidad Valenciana, 2000 and Landeshaupstadt Kiel v Norbert Ja¨ger, 2003). The SiMAP judgment defined all time when the worker was required to be present on site as actual working hours, for the purposes of work and rest calculations. The Ja¨ger judgment confirmed that this was the case even if the worker was allowed to sleep when their services were not required. A junior doctor on call in hospital, but resting in bed, is still considered to be working. Under Article 226 of the EC Treaty, the European Commission can take action against a Member State that fails to implement a Directive. If the Member State does not comply with the terms of the opinion within the period laid down by the Commission, the Commission may bring the matter before the Court of Justice.
IN THE FIELD It is extremely difficult to develop a roster that not only has no shifts lasting longer than 13 h, but also an average working week of less than 56 h and night shifts of no more than 8 h in a 24 h period. Many junior medical roles involved the need for immediate availability in an acute hospital and these roles cannot be substituted by nursing or technical staff. Traditional on-Call rotas for ‘‘experienced’’ trainees required 6 or 7 full-time equivalents (FTE) to cover emergencies for one day in 6 or 7, whereas 10 to 12 FTE are now needed to maintain a viable full-shift rota, allowing for prospective cover for leave and providing time for specialist training within the EWTD (http://www.rcplondon. ac.uk/news/statements/ewtd_houseoflords.asp) restrictions. Indeed, junior doctors - trainees are not normal workers. They are receiving active and practical education (apprenticeship). Whilst the health services require the trainee’s presence throughout 24/7, in practice they receive most of their education during daytime, during the week. Any rota cannot spread trainees across the week, like firemen. They have to be rostered for a reasonable amount of working time during week daytime, (Monday to Friday.) Trainee doctors are now actually required to work on rotating shifts instead of on call. For a single acute physician, there is need for a one needs a rotation of 12 FTE if each works less than 56 h on average. About half of the time will be spend on postgraduate training, about a sixth on working during the day time and the evening, a further sixth working overnight and a final sixth on annual leave. This is the kind of staffing used in many other 24/7 skilled industries, e.g. airlines. Thus, the switch to full-shifts necessitates a large expansion in the number of trainee doctors/clinicians (Pounder, 2008).
COMPLIANCE In European Union member states with traditional long working hours for hospital doctors, the reduced working hours led to a decrease in training experience case loads. A negative effect on patient care is presumed but not yet measured. The European Federation of Surgical Specialties demands 48 h working time and 12 h teaching and 110
Editorial 111
CMF SURGEONS ON CALL Specifically for maxillo-facial surgery, Ramsey et al. (2007) reported that a junior trainee on a full-shift pattern only had continuity in 33% of patient episodes. This in a setting of 4 consultants, 3 senior trainees and 6 junior trainees and with a 58 h working week. There is a requirement for excellent patient handover where continuity is reduced. Trainees get demoralized and education becomes difficult. Communication with the Dutch board of OMFS revealed that the situation was not considered problematic and that compliance was expected (B. Witsenburg, personal communication). On the other hand, the French colleagues considered the EWTD as impossible to implement simply because there are not enough clinicians for the mere fact of paucity of medical doctors (J. Ferri, personal communication). THE VIEW OF THE STANDING COMMITTEE OF EUROPEAN DOCTORS (CPME) The hours that doctors spend on-call at the work place should be counted as working time as clarified in the SiMAP and Ja¨ger judgements. A unilateral extension of the reference period from 6 months to 12 months should not be possible. The provisions of the EWTD concerning reference periods should therefore not be liberalized. The possibility to opt-out of the protection provided by Article 6 of the EWTD undermines the basic principle of the Directive. There is evidence that workers have been pressured to sign the opt-out form, and it is likely that the ones who can most easily be pressured are the youngest and most inexperienced of the workforce. The option of individual opt-out e for doctors in training should be abolished from the Directive. The setting of a limit of 72 h for compensatory rest to be taken is not appropriate for the medical profession, especially after periods oncall. The interpretation of the European Court of Justice imposing the compensatory rest to be taken immediately after the work periods better safeguards the safety of doctors and also indirectly that of patients. This requirement should be maintained unless specified otherwise by way of collective agreement. As far as the medical profession is concerned, compensatory rest needs to be taken at times immediately following the corresponding periods (CPME position on the revision of the Working time Directive according to the policy lines defined by the Board in Go¨teborg, Sweden, on 12, 2004) worked unless otherwise decided by collective agreement. THE VIEW OF THE EUROPEAN UNION OF MEDICAL SPECIALISTS (UEMS) The UEMS Council has stated its position on the organization of working time on the definition of working time, length of reference periods and individual opt-out. The OEMS Council had conducted a questionnaire to assess the views of both the UEMS national member associations as well the UEMS Sections and Boards. Based on the questionnaire and the current revision process of the EWTD, the UEMS Council (at its meeting in Budapest
on November 3e4, 2006) states that the major problem in specialist training experienced in the majority of UEMS member countries and specialties is the lack of time devoted to training when compared with clinical care. UEMS opposes the creation of a new category of working time called ‘‘on-call work’’ and a subcategory called ‘‘inactive part of on-call work’’. In the opinion of the UEMS, all time spent by a doctor in the work place as an employee should be counted as working time (cf.: firemen, shop assistants). There are no objective reasons to separate the work doctors do during on-call hours from the work they do during normal working hours. The UEMS wants to retain the current provisions regarding the length of the reference periods. It is a matter for the social partners at the national or regional level to agree on (UEMS motion on the organisation of working time (D 0515) extending the reference periods; the Member States should not have the unilateral right to extend them by legislation. The UEMS recognizes that it is in the interest of specialist doctors to have the option of working more than the average 48 weekly hours. However, doctors in training, as the most vulnerable part of the medical workforce, can be subject to both direct and indirect pressure to opt-out of the protection provided by the Directive. Therefore, the UEMS calls for the abolition of the individual opt-out possibility from doctors in training (Council Meeting and Budapest, 2005; UEMS newsletter, 2008). POTENTIAL HAZARDS A major conflict is to be expected in countries of which governments are restricting the number of specialisttrainees at un-undergraduate and/or graduate level in order to master the health care budget (e.g. the Netherlands, Belgium). The ageing group of staff surgeons will have to share the night shifts and yet be actively engaged in the daily operation programmes. This is when the staff surgeons are independent workers. New staff will be difficult to find, given the restrictions of trainee posts. EWTD does not concern safety and health of the independent worker, nor of the patient. When the consultant/staff surgeon is a salaried employee, then the same EWTD rules apply. The costs and retrieval difficulties for extra staff surgeons will be tremendous. LATEST EVOLUTION During the night of the 9th June 2008 in Luxembourg, an agreement was reached between the 27 European Labour ministers on the EWTD thus concluding almost four years of negotiation. The text will now be examined in its second reading by the European Parliament before the end of 2008. The amendment provides that working time shall be a maximum average 48 h per week while offering the possibility for Member States to take specific derogatory measures. Four points of the agreement should be highlighted: On-call time: The inactive part of on-call shall not be counted as working time, except if collective agreement or national law provides otherwise. This is in
112 Journal of Cranio-Maxillofacial Surgery
contradiction of the European Court of Justice (ECJ) jurisprudence. Compensatory leave: This should be taken with ‘‘reasonable delay’’ and is no longer required to be immediately after the working period. This delay shall be determined by national legislation, collective convention or agreement between social partners. Here again, the agreement runs against European jurisprudence. Individual opt-out: the agreement places a stricter general framework than the actual directive (2003/88/EC) for an individual employee who decides to opt-out form the working time limit of 48 h The maximum working time would then be an average 60 h per week (65 h if the inactive part of on-call is counted as working time). Review clause: the European Commission shall submit a report to the Council on the application of the derogations provided by the directive four years after its transposition ACKNOWLEDGMENTS The author thanks the late Professor John Lowry, Professor Joel Ferri and Dr. Bart Witsenburg and Mr. Frederic Destrebecq for their constructive remarks.
References Waurick R, Weber T, Broking K, Van Aken H: The European working time directive: effect on education and clinical care.
Technology, education and training. Curr Opin Anaesthesiol 20: 576e579, 2007 http://www.rcplondon.ac.uk/news/statements/ewtd_houseoflords.asp; 2007 Ramsey R, Anand R, Harraer S, Sharrna S, Wilbourn M, Brennan P: Continuity of care and the European working time directive: A maxillofacial perspective. Brit J Oral and Maxillofac Surg 45: 221e222, 2007 Pounder R. European Working Time Directive: are European junior doctors eady to decrease from 56 to 48 hours per week in 2009? UEMS 50th Anniversary Conference. 2008 CPME position on the revision of the Working time Directive according to the policy lines defined by the Board in Go¨teborg, Sweden, on 12 November 2004 (CPME 2004/155 Final EN/Fr) UEMS Council Meeting, Budapest November 3, 2005-UEMS resolution on the revision of the EWTD UEMS newsletter, June 23, 2008 UEMS motion on the organisation of working time (D 0515)
Maurice MOMMAERTS Secretary Section Oro-Maxillo-Facial Surgery European Union of Medical Specialists (UEMS) AZ St. Jan av, Ruddershove 10 8000 Bruges, Belgium Tel.: +32 50 45 22 71 Fax: +32 50 45 22 79 E-mail: [email protected] Paper received 5 July 2008 Accepted 4 September 2008
Editorial The European working time directive e Facts and issues
education time per week for trainees. The proposal of 48 h + 12 is problematic due to the implication that the additional hours should be unpaid. So far many member states have delayed the rectification of European laws in to their national laws (Waurick et al., 2007). Indeed, a press release of the European Commission published on September 20, 2006 contains the following statements: ‘‘(.) As almost all Member States seem to be in breach of the court rulings, Commissioner Spidla has drawn the Council’s attention to the urgency of bringing a balanced solution to the problem. (.) It is unacceptable that citizens suffer from this the political deadlock.’’ A decision of Council is still awaited in the making.
DEFINITIONS The Working Time Directive of the European Union (EWTD e Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organization of working time, Official Journal L 307, 13/12/1993 pages 0018-0024; amended by Directive 2000/34/EC of the European Parliament and of the Council of 22 June 2000) is a collection of regulations concerning hours of work, designed to protect the health and safety of workers (note: not patients, not employers) and is based on Article 118a of the Treaty of Rome. The basic rules of the EWTD are simple: ‘‘An adult worker is entitled to a rest period of not less than 11 consecutive hours in each 24-hour period during which he works for his employer’’. The average working week for a junior doctor should be no more than 56 h, decreasing to 48 h by August 1, 2009. The period over which average working hours are to be calculated is a rolling period of 17 weeks e ‘‘the reference period’’. All employees must have atleast a minimum of two rest periods of 24 h in a 2 week period, and 4 weeks of annual leave. Night work is restricted to 8 h in any 24 h period. The Working Time Directive has been clarified and interpreted through a number of rulings in the European Court of Justice. The most notable of these have been the ‘‘SiMAP’’ and ‘‘Ja¨ger’’ judgements (Sindicato de Medicos de Asistencia Publica v. Conselleria de Sanidad y Consumo de la Generalidad Valenciana, 2000 and Landeshaupstadt Kiel v Norbert Ja¨ger, 2003). The SiMAP judgment defined all time when the worker was required to be present on site as actual working hours, for the purposes of work and rest calculations. The Ja¨ger judgment confirmed that this was the case even if the worker was allowed to sleep when their services were not required. A junior doctor on call in hospital, but resting in bed, is still considered to be working. Under Article 226 of the EC Treaty, the European Commission can take action against a Member State that fails to implement a Directive. If the Member State does not comply with the terms of the opinion within the period laid down by the Commission, the Commission may bring the matter before the Court of Justice.
IN THE FIELD It is extremely difficult to develop a roster that not only has no shifts lasting longer than 13 h, but also an average working week of less than 56 h and night shifts of no more than 8 h in a 24 h period. Many junior medical roles involved the need for immediate availability in an acute hospital and these roles cannot be substituted by nursing or technical staff. Traditional on-Call rotas for ‘‘experienced’’ trainees required 6 or 7 full-time equivalents (FTE) to cover emergencies for one day in 6 or 7, whereas 10 to 12 FTE are now needed to maintain a viable full-shift rota, allowing for prospective cover for leave and providing time for specialist training within the EWTD (http://www.rcplondon. ac.uk/news/statements/ewtd_houseoflords.asp) restrictions. Indeed, junior doctors - trainees are not normal workers. They are receiving active and practical education (apprenticeship). Whilst the health services require the trainee’s presence throughout 24/7, in practice they receive most of their education during daytime, during the week. Any rota cannot spread trainees across the week, like firemen. They have to be rostered for a reasonable amount of working time during week daytime, (Monday to Friday.) Trainee doctors are now actually required to work on rotating shifts instead of on call. For a single acute physician, there is need for a one needs a rotation of 12 FTE if each works less than 56 h on average. About half of the time will be spend on postgraduate training, about a sixth on working during the day time and the evening, a further sixth working overnight and a final sixth on annual leave. This is the kind of staffing used in many other 24/7 skilled industries, e.g. airlines. Thus, the switch to full-shifts necessitates a large expansion in the number of trainee doctors/clinicians (Pounder, 2008).
COMPLIANCE In European Union member states with traditional long working hours for hospital doctors, the reduced working hours led to a decrease in training experience case loads. A negative effect on patient care is presumed but not yet measured. The European Federation of Surgical Specialties demands 48 h working time and 12 h teaching and 110
Editorial 111
CMF SURGEONS ON CALL Specifically for maxillo-facial surgery, Ramsey et al. (2007) reported that a junior trainee on a full-shift pattern only had continuity in 33% of patient episodes. This in a setting of 4 consultants, 3 senior trainees and 6 junior trainees and with a 58 h working week. There is a requirement for excellent patient handover where continuity is reduced. Trainees get demoralized and education becomes difficult. Communication with the Dutch board of OMFS revealed that the situation was not considered problematic and that compliance was expected (B. Witsenburg, personal communication). On the other hand, the French colleagues considered the EWTD as impossible to implement simply because there are not enough clinicians for the mere fact of paucity of medical doctors (J. Ferri, personal communication). THE VIEW OF THE STANDING COMMITTEE OF EUROPEAN DOCTORS (CPME) The hours that doctors spend on-call at the work place should be counted as working time as clarified in the SiMAP and Ja¨ger judgements. A unilateral extension of the reference period from 6 months to 12 months should not be possible. The provisions of the EWTD concerning reference periods should therefore not be liberalized. The possibility to opt-out of the protection provided by Article 6 of the EWTD undermines the basic principle of the Directive. There is evidence that workers have been pressured to sign the opt-out form, and it is likely that the ones who can most easily be pressured are the youngest and most inexperienced of the workforce. The option of individual opt-out e for doctors in training should be abolished from the Directive. The setting of a limit of 72 h for compensatory rest to be taken is not appropriate for the medical profession, especially after periods oncall. The interpretation of the European Court of Justice imposing the compensatory rest to be taken immediately after the work periods better safeguards the safety of doctors and also indirectly that of patients. This requirement should be maintained unless specified otherwise by way of collective agreement. As far as the medical profession is concerned, compensatory rest needs to be taken at times immediately following the corresponding periods (CPME position on the revision of the Working time Directive according to the policy lines defined by the Board in Go¨teborg, Sweden, on 12, 2004) worked unless otherwise decided by collective agreement. THE VIEW OF THE EUROPEAN UNION OF MEDICAL SPECIALISTS (UEMS) The UEMS Council has stated its position on the organization of working time on the definition of working time, length of reference periods and individual opt-out. The OEMS Council had conducted a questionnaire to assess the views of both the UEMS national member associations as well the UEMS Sections and Boards. Based on the questionnaire and the current revision process of the EWTD, the UEMS Council (at its meeting in Budapest
on November 3e4, 2006) states that the major problem in specialist training experienced in the majority of UEMS member countries and specialties is the lack of time devoted to training when compared with clinical care. UEMS opposes the creation of a new category of working time called ‘‘on-call work’’ and a subcategory called ‘‘inactive part of on-call work’’. In the opinion of the UEMS, all time spent by a doctor in the work place as an employee should be counted as working time (cf.: firemen, shop assistants). There are no objective reasons to separate the work doctors do during on-call hours from the work they do during normal working hours. The UEMS wants to retain the current provisions regarding the length of the reference periods. It is a matter for the social partners at the national or regional level to agree on (UEMS motion on the organisation of working time (D 0515) extending the reference periods; the Member States should not have the unilateral right to extend them by legislation. The UEMS recognizes that it is in the interest of specialist doctors to have the option of working more than the average 48 weekly hours. However, doctors in training, as the most vulnerable part of the medical workforce, can be subject to both direct and indirect pressure to opt-out of the protection provided by the Directive. Therefore, the UEMS calls for the abolition of the individual opt-out possibility from doctors in training (Council Meeting and Budapest, 2005; UEMS newsletter, 2008). POTENTIAL HAZARDS A major conflict is to be expected in countries of which governments are restricting the number of specialisttrainees at un-undergraduate and/or graduate level in order to master the health care budget (e.g. the Netherlands, Belgium). The ageing group of staff surgeons will have to share the night shifts and yet be actively engaged in the daily operation programmes. This is when the staff surgeons are independent workers. New staff will be difficult to find, given the restrictions of trainee posts. EWTD does not concern safety and health of the independent worker, nor of the patient. When the consultant/staff surgeon is a salaried employee, then the same EWTD rules apply. The costs and retrieval difficulties for extra staff surgeons will be tremendous. LATEST EVOLUTION During the night of the 9th June 2008 in Luxembourg, an agreement was reached between the 27 European Labour ministers on the EWTD thus concluding almost four years of negotiation. The text will now be examined in its second reading by the European Parliament before the end of 2008. The amendment provides that working time shall be a maximum average 48 h per week while offering the possibility for Member States to take specific derogatory measures. Four points of the agreement should be highlighted: On-call time: The inactive part of on-call shall not be counted as working time, except if collective agreement or national law provides otherwise. This is in
112 Journal of Cranio-Maxillofacial Surgery
contradiction of the European Court of Justice (ECJ) jurisprudence. Compensatory leave: This should be taken with ‘‘reasonable delay’’ and is no longer required to be immediately after the working period. This delay shall be determined by national legislation, collective convention or agreement between social partners. Here again, the agreement runs against European jurisprudence. Individual opt-out: the agreement places a stricter general framework than the actual directive (2003/88/EC) for an individual employee who decides to opt-out form the working time limit of 48 h The maximum working time would then be an average 60 h per week (65 h if the inactive part of on-call is counted as working time). Review clause: the European Commission shall submit a report to the Council on the application of the derogations provided by the directive four years after its transposition ACKNOWLEDGMENTS The author thanks the late Professor John Lowry, Professor Joel Ferri and Dr. Bart Witsenburg and Mr. Frederic Destrebecq for their constructive remarks.
References Waurick R, Weber T, Broking K, Van Aken H: The European working time directive: effect on education and clinical care.
Technology, education and training. Curr Opin Anaesthesiol 20: 576e579, 2007 http://www.rcplondon.ac.uk/news/statements/ewtd_houseoflords.asp; 2007 Ramsey R, Anand R, Harraer S, Sharrna S, Wilbourn M, Brennan P: Continuity of care and the European working time directive: A maxillofacial perspective. Brit J Oral and Maxillofac Surg 45: 221e222, 2007 Pounder R. European Working Time Directive: are European junior doctors eady to decrease from 56 to 48 hours per week in 2009? UEMS 50th Anniversary Conference. 2008 CPME position on the revision of the Working time Directive according to the policy lines defined by the Board in Go¨teborg, Sweden, on 12 November 2004 (CPME 2004/155 Final EN/Fr) UEMS Council Meeting, Budapest November 3, 2005-UEMS resolution on the revision of the EWTD UEMS newsletter, June 23, 2008 UEMS motion on the organisation of working time (D 0515)
Maurice MOMMAERTS Secretary Section Oro-Maxillo-Facial Surgery European Union of Medical Specialists (UEMS) AZ St. Jan av, Ruddershove 10 8000 Bruges, Belgium Tel.: +32 50 45 22 71 Fax: +32 50 45 22 79 E-mail: [email protected] Paper received 5 July 2008 Accepted 4 September 2008