07/03/2019 European Court of Justice: 48 h maximum average weekly working time – is the 17 weeks reference period fixed or rolling? (ECJ, C 254/18)

Starting as of September 1st 2018, employees in Austria have been entitled to work up to 60 hours per week. This possibility is restricted by the Working Hours Act (Arbeitszeitgesetz – AZG): the average weekly working time may not exceed 48 hours in a reference period of 17 weeks. The European Court of Justice (ECJ) recently judged that a rolling reference period has to be observed. 

A dispute has arisen between a trade union and the French authorities with regard to the reference period used to calculate the average weekly working time of active officials of the national police force.

The French court asked the ECJ whether the domestic provisions contradict the EU´s Working Time Directive (2003/88/EC): according to the French provisions, fixed reference periods can be used for the calculation of the weekly working time. The Working Time Directive determines that the average weekly working time may not exceed 48 hours; in Austria this provision can be found in the Working Hours Act („AZG“). The average weekly working time may not exceed 48 hours in a reference period of (generally) 17 weeks.

The prevailing view in Austria - but also in other European countries – is that this reference period must be fixed with a start date and end date. In order to enable controls by the labor inspectors, the working time records have to contain the start and the end of a reference period (e.g. January 1st – April 30th or starting with the individual working year).

The ECJ recently judged that the Working Time Directive is silent on this question. Therefore, member states are generally free to determine reference periods. However, he points out that fixed reference periods may, in contrast to rolling reference periods, create situations in which the objective of protecting the health and safety of workers may not be met: even if the maximum weekly working time is not exceeded within the fixed reference period, it may happen that in the end there are long periods with surpassing high workload. 

For example:
An employee is working 60 hours during several weeks at the end and at the start of a fixed reference period. However, within each fixed reference period the employee does not exceed 48 hours per week. Yet it can happen that the employee in average works more than 48 hours within a rolling reference period of 17 weeks. In this concrete case the objective of protecting the health and safety of workers may not be met, although the maximum working time during the fixed reference period was not exceeded.

As a result, the ECJ requests a rolling reference period: even in a fixed reference period it must be ensured that the maximum weekly working time of 48 hours is also respected in each rolling reference period of 17 weeks. However, the reaction of the labor inspectors remains to be seen.

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