Chapter 7: Working Time
Our main focus in this chapter is on the Working Time Directive.1 This lays down a series of rights for workers in respect of their working hours, such as the right to work no more than 48 hours in a week, on average,2 and the right to four weeks’ paid annual leave.3 The Directive has been controversial from the outset and has given rise to considerable litigation, as well as a series of attempts at reform. Our discussion will pick out three main themes. First, we will consider the emergence of the regulation of working time at EU level. Although this might be explained in terms of preventing undercutting, because some countries had working time regulation and some did not, in fact the explanation is more political than economic and reflects the desire to advance the European Social Model (ESM) at EU level. Second, we will consider the role a rights analysis has played in the Court of Justice’s interpretation of the Directive, picking up on our ‘constitutionalisation’ theme. Third, we will revisit the idea of reflexive law – adapting the law to the needs of workers and employers – because there is a long-running debate about whether the Directive is too rigid or too flexible. THE ENACTMENT OF THE WORKING TIME DIRECTIVE The regulation of working time is a surprisingly complex issue. On one hand, there are powerful arguments for not regulating working time at all. Employees may be happy to work long hours, particularly where this enables them to...
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