Trends in Regulating Working and Rest Time in Estonia. Proceedings from the European Union Law

• Author: Merle Muda
• Pages: 145-156

Merle Muda

Trends in Regulating Working and Rest Time in Estonia. Proceedings from the European Union Law

The Europe Agreement ¹ obliges us to approximate and harmonise Estonian legislation with the EU law, particularly in the fields of trade, economy and related spheres, i.e. in issues concerning protection of employees (articles 68 and 69). Thus, the labour laws applicable in Estonia have to be in accordance with the EU legislative or regulatory provisions, which also serves as a prerequisite for the accession to the EU. Although the Estonian legislation on labour law is basically compatible with the EU provisions, it needs to be substantially supplemented on the basis of the EU law. ² This paper will analyse the conformity of the Estonian legal regulation of working and rest time with the EU requirements and some proposals will be made for amendment of labour laws.

Taking into account the various working forms adopted over the last decades (out-working, distance work, etc.), in many cases it is impossible to precisely regulate working and rest time. According to the latest trends prevalent in the EU member states, the working time of an employee shortens and the working time of an enterprise lengthens. This allows for flexible organisation of work, increase in the complete implementation level of all resources, gradual adjustment to new circumstances, increase in productivity and competitiveness. Flexible organisation of working time also allows for a better linkup of employees' employment and family duties and enables the states to integrate more people into the labour market.

However, the working and rest time of employees has to be regulated as unrestricted working time fosters over-fatigue, occurrence of accidents at work and distress - a working week exceeding 50 hours is hazardous to an employee's health. ³ Regulation of working and rest time is also necessary for ensuring a higher level of protection to particular groups of workers (children, women, people engaged in work that poses a health hazard, etc.).

The EU began to regulate working and rest time in the 1990s. To date, three directives on working and rest time have been adopted in the EU - Council Directive 93/104/EEC concerning certain aspects of the organisation of working time, Council Directive 96/34/EC on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC and Council Directive 97/81/EC concerning the framework agreement on part-time work concluded by UNICE, CEEP and the ETUC.

The working and rest time of minors and women are also regulated by the Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC) and Council Directive 94/33/EC on the protection of young people at work.

On 31 May 2000, the Riigikogu (parliament) of the Republic of Estonia ratified the revised version of the Council of Europe (CE) Social Charter ⁴ , including several provisions concerning working and rest time. ⁵ Adherence to the provisions established in the Social Charter is also important with regard to the accession to the EU, as according to article 136 of the Treaty establishing the European Community, the European Community shall proceed, inter alia, from the fundamental social rights set out in the CE Social Charter when designing its social policy. ⁶

In Estonia, the principal acts governing working and rest time are the Working and Rest Time Act ⁷ (hereinafter: WRTA) and the Republic of Estonia Holidays Act ⁸ (hereinafter: HA). By the time the paper is written, a new draft Working and Rest Time Act has been prepared.

General Standards of Working and Rest Time

The EU member states aim at shortening the working time. Such a principle has also been set out in article 2 of the CE Social Charter, which lays down: with a view to ensuring the effective exercise of the right to just conditions of work, the Parties undertake to provide for reasonable daily and weekly working hours, the working week to be progressively reduced to the extent that the increase of productivity and other relevant factors permit (paragraph 1). With a view to ensuring the effective exercise of the right of children and young persons to protection, the Parties undertake to provide that the working hours of persons less than 18 years of age shall be limited in accordance with the needs of their development, and particularly with their need for vocational training (article 7, paragraph 4). ⁹

According to the Council Directive 93/104/EEC concerning certain aspects of the organization of working time ¹⁰ , the average working time for each seven-day period, including overtime, does not exceed 48 hours (article 6, paragraph 2). The general established national standard of working time in the EU member states is mostly 40 hours per week and 8 hours per day. The same standard is also set out in § 9 of the Estonian Working and Rest Time Act - the general national standard of working time of employees shall not exceed 8 hours per day and 40 hours per week. Whereas in the EU member states national standards of working time are frequently reduced by means of collective agreements, no such agreements have been concluded in Estonia. On the one hand, the lack of such agreements has been caused by the minor importance of collective agreements in regulating labour relations ¹¹ , on the other hand, economic indicators do not allow for reduction of working time, and shortening of working time with collective agreements can obviously not be foreseen in the nearest future.

Subsection 10 (1) of the Estonian WRTA sets out a reduced working time for minors: 1) 20 hours per week for employees who are 13-14 years of age;
2) 25 hours per week for employees who are 15-16 years of age;
3) 30 hours per week for employees who are 17 years of age.

For a five-day working week, the national standard of working time is 8 hours per day for a 40-hour working week, 7 hours per day for a 35-hour working week, 6 hours per day for a 30-hour working week, 5 hours per day for a 25-hour working week and 4 hours per day for a 20-hour working week (§ 12 (1)). According to § 12 (3), upon the recording of total working time ¹² , the duration of working time of employees who are 13-14 years of age shall not exceed 5 hours per day, the duration of working time of employees who are 15-16 years of age shall not exceed 6 hours per day and the duration working time of employees who are 17 years of age shall not exceed 7 hours per day.

In the Council Directive 94/33/EC on the protection of young people at work ¹³ , the standards of working time have been determined considerably more precisely. The directive distinguishes between children ¹⁴ and adolescents ¹⁵ , regulating their working and rest time in a different manner. If the working time of adolescents may be up to 40 hours per week and 8 hours per day according to the directive, the duration of working time of children has been regulated in a more detailed manner - the working time of children has been bound to the obligation of children to attend school. Thus, for example, the working time of children shall be restricted to two hours on a school day and 12 hours a week for work performed in term-time outside the hours; in no circumstances may the daily working time exceed 7 hours; this limit may be raised to 8 hours in the case of children who have reached the age of 15 (article 8, paragraph 1).

Estonian legislation does not provide for so precise rules, although a more detailed regulation would be certainly necessary with regard to the protection of minors. The draft WRTA does not foresee fundamental changes in this respect because minors who have reached the age of 13-14 may work only during holidays according to the new Employment Contracts Act to be soon adopted. According to the draft act, minors starting from 15 years of age may work throughout a year since basic education has been acquired by that age.

However, some alterations have been made in the draft WRTA concerning the standard of working time. Reduced working time has been, inter alia, provided for: 1) employees who are 13-14 years of age - 4 hours per day and 20 hours per week;
2) employees 15 years of age - 6 hours per day and 30 hours per week;
3) employees 16-17 years of age - 7 hours per day and 35 hours per week.

According to § 15 of the draft act, a shift may last up to 12 hours as a rule (§ 15 (1)); upon recording total working time, the daily working time of minors shall be: 1) for employees 13-14 years of age - up to 5 hours;
2) for employees 15 years of age - up to 7 hours;
3) for employees 16-17 years of age - up to 8 hours.

Thus, the standard of working time for minors 13-14 years of age has remained the same, whereas alterations have been made in the standard of working time for employees 15-17 years of age. The regulation of the draft WRTA fully conforms to the requirements of the directive.

For Estonia, also the principle established in article 6 of the Council Directive 93/104/EEC, according to which the average working time for each seven-day period, including overtime, does not exceed 48 hours proves problematic. Subsection 15 (2) of the WRTA allows employees to work overtime for 4 hours per day and establishes 12 hours as the maximum duration of a shift. Consequently, it is possible that the maximum working time per week may exceed well over 48 hours (5 x 12 = 60 hours per week). According to § 14 of the Wages Act ¹⁶ (hereinafter: WA), additional remuneration for overtime may be compensated by provision of time off or money, whereas the additional remuneration...