On 10 June 2008, the Employment, Social Policy, Health and Consumer Affairs Council reached political agreement on two controversial draft directives. The amended working time directive distinguishes between active and inactive ‘on-call’ time, and sets new rules for the opt-out from the standard maximum limit of 48 working hours a week. The temporary agency work directive is based on the principle of equal treatment as of day one for temporary agency workers.
Working time directive
Originally adopted in 1993, Council Directive 93/104/EC concerning certain aspects of the organisation of working time – commonly known as the working time directive – was consolidated in Directive 2003/88/EC. However, the European Commission proposed in September 2004 that the directive should be revised (EU0410205F). This revision was motivated by two reasons. Firstly, the 1993 directive contained a review clause for two provisions regarding the extension of the four-month reference period for the maximum 48-hour working week and the individual ‘opt-out’ from the maximum weekly working time limit. Secondly, the revision was a reaction to a European Court of Justice (ECJ) ruling of 9 September 2003 (case C-151/02 Landeshauptstadt Kiel versus Norbert Jäger), stating that ‘on-call’ time has to be counted as working time (EU0310202N).
In its first reading on 11 May 2005, the European Parliament made far-reaching amendments to the Commission’s proposal, in particular demanding a phasing-out of the opt-out provision (EU0505205F). Since then, the revision proposal had been deadlocked in the European Council (EU0612019I), despite repeated efforts to reach a consensus (EU0802019I).
The main points of the political agreement concluded on 10 June 2008 by the Employment, Social Policy, Health and Consumer Affairs Council (EPSCO) in respect of the revised working time directive are outlined below.
- On-call time is split into active and inactive on-call time. Active on-call time has to be counted as working time while inactive on-call time may be counted as rest time but can also be counted as working time if national laws or social partners agree.
- The opt-out of individual workers is bound to certain conditions, such as the following:
- workers should not be asked to sign an agreement to work beyond the standard maximum weekly working time during the first month of employment;
- no victimisation should result from not signing or withdrawing from the opt-out;
- a new protective limit is set of 60 weekly working hours – or 65 hours if inactive on-call time is counted as working time – for workers who opt out of the standard maximum.
Temporary agency work directive
While the European Commission made its first attempt to regulate temporary agency work in 1982, the current process started in 1995 when the Commission launched a consultation about three issues: part-time work, fixed-term employment contracts and temporary work. The first two topics were successfully regulated in two framework agreements concluded by the European social partners: on part-time work in 1997 (EU9706131F), as implemented by Council Directive 97/81/EC, and on fixed-term work in 1999 (EU9901147F), as implemented by Council Directive 1999/70/EC. However, negotiations between the social partners on temporary agency work failed in 2001 (EU0106215N).
Consequently, in 2002 the European Commission proposed a directive on temporary agency workers based on the non-discrimination principle but allowing some exceptions (EU0204205F). In the same year, the draft directive passed the first reading in the European Parliament (EU0212201N). Nevertheless, it reached an impasse in the Council due to the opposition of some Member States, mainly Germany, Ireland and the United Kingdom (UK).
In 2007, efforts to arrive at a consensus on the directive were intensified. Finally, a breakthrough was made possible by a recent agreement on equal treatment for temporary agency workers between social partners in the UK on 21 May 2008 (UK0806039I).
The main points of the European political agreement concluded on 10 June 2008 with regard to the new temporary agency work directive are outlined below.
- Equal treatment as of the first day on the job will apply to temporary agency workers in terms of pay, leave and maternity leave.
- Derogation from this requirement is possible through collective agreements.
- Temporary agency workers will have equal access to collective facilities, such as a canteen, childcare facilities or transport services.
- Member States must improve temporary agency workers’ access to training and childcare facilities in periods between their assignments so as to increase their employability.
- Member States have to impose penalties for non-compliance by temporary work agencies and user companies.
Reactions to political agreement
Some Member States expressed their reservations regarding the agreement on working time. The Spanish government in particular criticised the agreement as an ‘attack on workers’ rights (in Spanish)’ and ‘a step backwards in the social agenda (in Spanish)’, according to news articles on 9 and 10 June 2008 from El País daily newspaper.
In his response to the political agreement, the General Secretary of the European Trade Union Confederation (ETUC), John Monks, welcomed the progress on temporary agency work, but was strongly critical of the position on working time. He declared that the latter was ‘highly unsatisfactory and unacceptable to ETUC, in respect of the new provisions on on-call work and the continuation of the UK opt-out’.
The reaction of the employer organisation BusinessEurope was exactly the opposite, assessing ‘the deal on agency work as a step backwards, while that on working time is a major step forward which will secure flexibility in working hours for companies’ (BusinessEurope press release (28Kb PDF), 11 June 2008).
The Council positions now have to be sent to the European Parliament for a second reading, as envisaged by the co-decision procedure.
Commentary
While the agreement on the temporary agency work directive seems to be a real compromise that balances the different positions expressed in the debate, the agreement on the revised working time directive remains controversial, even between Member States. It is now up to the European Parliament to decide in its second reading if it accepts a text that ignores some of the most important amendments of its first reading.
Stefan Lücking, Technical University Munich