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Truth, Justice, Righteousness

(Deut 32:4)

19
Mar
15
The EU Commission Public Consultation on the Review of the Working Time Directive (WTD2003/88/EC)

The EU Commission Public Consultation on the Review of the Working Time Directive (WTD2003/88/EC)

Impact of the Working Time Directive

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

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


1. UNLAWFUL

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

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

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

2. UNCONSTITUTIONAL

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

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

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

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

3. INDIRECT DISCRIMINATION

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

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

[1] CALL FOR ACTION - www.europeansundayalliance.eu

[2]Case -84/94 United Kingdom v Council of the European Union, Industrial Relations Law Reports, Vol. 26, No.1, January [1997] IRLR 32.

[3] Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and the Committee of the Regions. Reviewing  the Working Time Directive. COM (2010)801 final. Brussels. p.11

[4] www.eu-observer.com/851/29763 See also Nigel Forster, EU treaties and legislation 2011 - 2012 (Blackstone's statutes - 2011), p.2

[5] Case 13/63, Italy v Commission [1963] ECR 165 and also Case 130/75, Vivien Prais v Council of the European Communities [1976] ECR 1 - 1592 and 1 - 1593.

For further information click on the link below

http://religiousliberty.tv/why-the-eu-should-not-re-integrate-sunday-into-the-working-time-directive.html

Brighton Kavaloh

Brighton G. Kavaloh is a retired Seventh-day Adventist ordained Minister of Religion and originally from Malawi. He is the Founder and Director of Advent Religio-Legal Perspective.

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