Mixed reception for European Commission working time proposals

The Confederation of British Industry and the Trades Union Congress issued contrasting reactions to proposals for revising the EU working time Directive put forward in a European Commission consultation document in May 2004.

On 19 May 2004, the European Commission published a 'second phase' consultation document, for consideration by the EU-level social partner organisations, on revising the 1993 working time Directive (93/104/EC). The move follows a Commission Communication on the issue published in January 2004 (EU0402203F). The consultation document makes clear that, unless the social partners opt to engage in negotiations over revisions to the Directive, the Commission envisages proposing amendments in a number of areas, including:

• limiting or abolishing the scope for individuals to opt out of the 48-hour weekly limit on average working time;

• defining how time spent 'on call' should be treated; and

• extending the permissible reference period over which weekly working time can be averaged.

In the UK context, the most controversial aspect of the Commission’s proposals concern the potential changes in the area of the individual opt-out (UK0401104F). Here, the Commission has put forward a range of alternative proposals. These are:

1. to 'tighten the conditions for application of the individual opt-out under Article 18.1 (b) (i) with a view to strengthening its voluntary nature and preventing abuses in practice' ;

2. to 'stipulate that derogations from the provisions on maximum weekly working hours are only possible through collective agreements or agreements between the social partners' ;

3. to 'provide that derogation from [the 48-hour limit] would only be possible when authorised by means of collective agreements or agreements among social partners. In undertakings without such applicable agreement and no representation of the employees, the individual opt-out under tighter conditions would remain applicable' ; and

4. to 'revise the individual opt-out with a view to its phasing out as soon as possible' and, in the meantime, to tighten the conditions for its application.

Responding to the publication of the consultation document, the Confederation of British Industry (CBI) pledged to 'fight tooth and nail' against the proposal to phase out the individual opt-out. The CBI said that it would also be telling the Commission that 'collective agreements are not widespread in the UK so making the opt-out subject to them is simply a non-starter'.

However, the CBI said that 'firms will be encouraged that the Commission has not closed down the option of keeping the opt-out, which is critical for the economy. Business fully accepts its responsibility to do all possible to ensure people are genuinely choosing to work long hours and that any abuses are stamped out. Indeed we have already offered proposals to the UK government to address this issue.'

For its part, the Trades Union Congress (TUC) regards the contents of the consultation document as 'a defeat for the UK government who have been arguing that the opt-out should simply stay. The Commission has clearly seen through the misleading evidence provided by the UK government. This is great encouragement to our campaign to end the individual opt-out, the only way to stop employers pressurising staff to work long hours.'

The TUC is currently consulting its affiliates on its detailed response to the consultation document. Unions are naturally likely to prefer the Commission’s fourth option - phasing out the individual opt-out - but over the shortest possible period. TUC officials regard option 1 as 'too modest' and option 3 as 'problematic', but see some potential mileage in examining option 2.