And the Normal Duration of the Working Time: Correlation of Concepts

UDC 349.2:347:15/17(477) I. V. LAGUTINA, Doctor of Legal Sciences, Associate Professor, Head of Labour Law and Social Security Law Department of National University “Odessa Law Academy” «RIGHt TO dIsconnect» and tHe noRMaL dURATIon oF tHe woRKInG tIMe: coRReLATIon oF concePts У статті підкреслюється, що нові форми роботи і зміни робочого середовища породжують нову небезпеку. Тривалість робочого часу веде до зростання соціальної напруженості і конфронтації. Аналізується, що порушен- ня права на відпочинок, що забезпечується встановленням нормальної тривалості робочого часу, спричиняє по- силення стресу і депресії серед працівників і, отже, до зниження загального обсягу виробництва. Ключові слова: трудові права, працівник, робочий час, право на роз’єднання. Problem setting. The modification of working time article’s main body. The subject of working time has reflects changes in working conditions, its organization, been central to the work of the ILO since its inception, content and, at the same time, the degree of flexibility of when it adopted the first of many international labour stan- the labour market. Herewith, the organization of working dards, the Hours of Work (Industry) Convention, 1919 time, including its duration, is an instrument through (№ 1). Normal hours of work are, according to the ILO, the which the labour market can respond to processes occur- hours that workers are expected to spend on work activities ring in the economic, social and technological spheres. during a short reference period such as 1 day or 1 week, as Therefore, understanding the factors that underpin the stipulated in laws or regulations, collective agreements or processes of organizing and changing of working time arbitral awards, or establishments’ rules or customs. is a prerequisite for the successful regulation of the Legislation plays an essential role in the definition modern labour market, increasing the efficiency of its of the length of working time in Ukraine. The statutory functioning. duration of the working week in Ukraine is 40 hours Working time is one of the central institution of la- according to the current Labour Code. The duration of bour law. The duration, organisation and predictability the working day before a holiday or a weekend shall be of working time has long been an important issues of reduced by one hour. In the case of a six-day working political and social debate. week, the duration of the working day before the week- the analysis of research work and publications. end cannot exceed five hours. Topical issues of legal regulation of working time is the It is important to note that the general rule is that subject of study of Ukrainian and foreign scientists, such overtime is not allowed. The Labour Code provides an as: M. Alexandrov, N. Bolotina, V. Venediktov, L. Ginz- exhaustive list of exceptions when an employee may be burg, V. Glazyrin, G. Goncharova, V. Zhernakov, M. In- required to work overtime. The maximum limit of over- shyn, RZ Livshits, V. Nikitinskyy, J. Orlovsky, A. Pash- time work is 120 hours per year. Overtime work also kov, S. Prylypko, A. Protsevskyy, A. mirnov, shall not exceed four hours over two consecutive days G. Chanysheva, O. Yaroshenko, as well as C. Alpin, for the same employee. D. Anxo, A. Beauregard, P. Berg, H. Bewley, G. Bosch, Furthermore, long working hours leads to increase A. Bryson, B. Burgoon, J. Charest, G. Dix, M. Fassmann, the possibility of occurrence of psychosocial risks and C. Franz, J. Forth, S. Folkard, R. Gammarano, I. Guard- work-related stress, in particular, concerning the health iancich, S. Hayter, L. Henry, B. Kersley, A. Kummerling, impact of digital overload, «info-obesity». S. Lee, S. Lehndorff, P. Marginson, D. McCann, Information and communication technologies are H. Muensterberg, J. O’Reilly, S. Oxenbridge, D. Raess, what made the blurring of the space and time boundaries K. Sisson, P. Tucker, J. Visser, H. Wilson, etc. between work and private life possible in the first place, the purpose of this article is to research issues of and today’s Internet and mobile devices support constant ensuring the right to disconnect in the context of provid- reachability. This makes actual working time difficult to ing for reasonable daily and weekly working hours, its define and measure, especially when work emails are impact on work–life balance. read and answered from home [1, p. 90]. 64 Право та інновації № 3 (19) 2017 © Lagutina I. V., 2017 Lagutina I. V. «Right to disconnect» and the normal duration of the working time: correlation of concepts Theoretically, employees with flexible working ar- The new rule applies only to companies with 50 or rangements have the ability to adapt their working time more employees, thus excluding large numbers of work- to their time needs outside work. In practice, though, this ers at small- or medium-size firms. Covered firms are is often not feasible (e.g., due to urgent customer needs). required to negotiate email guidelines with their em- Employees pay for the freedom that comes with such ployees. Employers must also regulate email use to results-oriented working arrangements with eroded ensure employees are able to possess time away from work–life boundaries and constant reachability. In 2016, the office. If employers and employees cannot agree on 22 per cent of employees were o en expected to be an appropriate policy, then the employer is obligated to reachable outside normal working hours, e.g. via email publish a charter that regulates when employees can or telephone. As a result of constant reachability, 37 per disconnect [5]. cent of these employees end up doing additional, unpaid Some European companies have introduced restric- work [2]. Work intensity and performance pressure on tions on use of email outside of business hours. Auto- employees, already high, are only further increased by maker Volkswagen prevents its email servers from de- working with the Internet and the expectation that emails livering messages to employees in Germany when they will be answered quickly. are off-shift or on vacation. Others, including automak- Obviously, long working hours leads to decreased ers Daimler and BMW, insurance giant Allianz-France, total output. Overwork leads to decreased total output. telecoms firm Orange and IT giant Atos also have re- Productivity during 60 hour weeks would be less than strictions on employees’ use of email. two-thirds that of what it was when 40 hour weeks were Many organisations take this further by implement- worked. It may be the case that employees simply be- ing policies which not only define a right to disconnect come much less efficient: due to stress, fatigue, and but also the proper use of digital tools at work, such as other factors, their maximum efficiency during any giv- how not to overload colleagues with «reply to all» en work day may become substantially less than what it emails, or internal policies for remote work while travel- was during normal working hours. Thus, overworked ing or teleworking. employees may simply be substantially less productive Cary Cooper, a professor of psychology and health at all hours of the work day, enough so that their average at Britain’s University of Manchester, told NBC News productivity decreases to the extent the additional hours that per capita productivity in the U.K. is poor «because they are working provide no benefit. Also overworked we have the longest working hours in Europe but also employees using heavy machinery are much more likely because we are probably the biggest users in Europe of to injure themselves and to damage or otherwise ruin the communications and information technologies, particu- goods they are working on [3]. larly emails» [6]. Employees who routinely worked overtime were Frederic Lafage, director of engineering firm and also more likely to have accidents at work and more told CNN Money it was difficult to implement the “dis- likely to neglect family activities because of work. Sig- connect” system, but it hasn’t resulted in a loss of pro- nificantly, they were also more likely to omit or neglect ductivity [7]. In fact, it’s the opposite, claiming workers duties at work because of family responsibilities. are more efficient in the office after getting some much Policies and approaches relevant to the management needed rest at home. of psychosocial risks, can take various forms. French Even without government action, French compa- workers win legal right to avoid checking work email nies have already begun grappling with how to tamp out-of-hours – «right to disconnect». down their employees’ addiction to email. Managers at The measure is intended to tackle the so-called “al- the insurance company Allianz France, with about ways-on” work culture that has led to a surge in usually 10,000 employees, are under orders not to send work unpaid overtime – while also giving employees flexibil- emails after 6 p.m., or to hold meetings in the late af- ity to work outside the office. ternoon. The cut-off time for staff emails is 7 p.m. at Under the new law, companies will be obliged to KEDGE Business School, which has campuses in negotiate with employees to agree on their rights to France. Solvay, a Belgian chemical company with of- switch off and ways they can reduce the intrusion of fices in more than 50 countries, introduced new email work into their private lives. However, the new “right to guidelines for its French employees last year, urging disconnect”, part of a much larger and controversial re- them to not send emails on holidays or off-hours except form of French labour law, foresees no sanction for for urgent matters [8]. companies which fail to define it. There has also been an increase debate among Span- French newspaper Libération indicated that the law ish social partners and political parties on the possibility was needed because “employees are often judged on of allowing workers to disconnect their digital devices their commitment to their companies and their avail- (primarily mobile phones and computers) after their ability” [4].

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