A recent decision of the European Free Trade Association Court (EFTA Court) in Matja Kumba T M'bye and Others v Stiftelsen Fossumkollektivet, E-5/15 that an 84 hour working week is lawful, certainly catches the eye.
This comes after a string of decisions on the European Working Time Directive (EWTD) in which employers have been found to be in breach.
The case concerned a charitable treatment facility for young people with drug and/or alcohol problems where therapists live onsite with their patients.
Due to financial difficulties, the organisation proposed moving the staff rota from a three days on, seven days off, four days on, seven days off model to a straight seven days on and seven days off model. As part of the new terms, staff were also offered a pay increase and a period of three months' paid leave every third year.
However this proposal was rejected by staff. The organisation therefore gave notice of dismissal combined with an offer of re-engagement on the varied terms.
The Norwegian courts referred various questions to the EFTA Court. The question dealt with in this case being:
Is an average weekly working time of 84 hours (7-7 rotation) in a cohabitant care arrangement in breach of Article 6, see also Article 22(1)(a), of the Working Time Directive?
Note, the EFTA Court has jurisdiction over EFTA members who are also members of the European Economic Area, (currently Iceland, Liechtenstein and Norway) and sits in parallel with the European Court of Justice.
The staff argued that there was a weekly entitlement to 90 hours rest, consisting of 6 daily rest periods of 11 hours plus the weekly rest period of 24 hours. On that basis, given there are 168 hours in a week, a working week should be limited to 78 hours.
The EFTA court decided on the facts that there was nothing unlawful with an average 84 hour working week, on the following grounds:
- The workers had signed valid opt-outs from the 48 hour limit on average weekly working hours and no maximum average weekly working hours is provided for under the EWTD
- The EWTD permits a derogation in certain circumstances from the requirement of daily rest breaks of 11 hours and weekly rest of 24 hours provided:
- equivalent compensatory rest is provided; or
- where in exceptional cases that is not possible for objective reasons, workers are afforded adequate protection
- The circumstances fell within one of the derogation categories in the EWTD, being 'services relating to the reception, treatment and/or care provided by hospitals or similar establishments, including the activities of doctors in training, residential institutions and prisons.'
Similar provisions apply under the UK Working Time Regulations in exceptional cases where compensatory rest can't be provided. In such cases the employer must afford such protection as is appropriate in order to safeguard the worker's health and safety.
Employers concerned about their working time compliance can often use a combination of individual opt-out agreements and collective/workforce agreements to either exclude or vary some of their obligations.