Impasse on changes to working time directive

In April 2009, the European Parliament and Council failed to reach agreement on the revision of the Working Time Directive through the Conciliation Committee process. This is the first time that agreement has not been reached at the conciliation stage. Both BusinessEurope and the European Trade Union Confederation favour revisions to the directive. The employers are keen to establish a new definition of on call hours, while trade unions want to end the opt-out clause.

On 28 April 2009, talks broke down over the issue of amendments to Council Directive 93/104/EC concerning certain aspects of the organisation of working time. This means that the directive remains unchanged and that Member States continue to have the possibility to opt out of the 48-hour maximum working week, on the basis of voluntary agreements with individual workers. Significantly, the issue of defining and calculating on-call time also remains unresolved, leaving both employers and the trade unions unclear as to when time will be counted as working time and when it will not. The matter is important as it is the first time that it has not proved possible to reach agreement at the Conciliation Committee stage. Such an impasse had not been envisaged when the directive was introduced in 1993, containing a specific requirement for the European Commission to review two of the directive’s clauses – the reference period for calculating the average working time and the individual opt-out – within seven years of the directive’s implementation.

With the passage of time, and owing to rulings of the European Court of Justice (ECJ) that ‘on call’ work is a component of working time, this too has become a major issue.

Views of social partners

BusinessEurope, the employer organisation at EU level, has expressed its concern that no agreement has been reached regarding the revision of the directive. While it is pleased that the opt-out from the 48-hour week is being maintained, it views the continuance of the ECJ interpretation of on-call time as ‘costly for business and for public services, in particular healthcare’ (Press release, 28 April 2009 (96Kb PDF)).

The revision of the directive has been of particular interest to the trade unions. The European Trade Union Confederation (ETUC) in its Memorandum to the Czech Presidency on 28 January 2009 stated that individual opt-out should not remain in force forever and called for ‘balanced solutions’ to deal with on-call time. It has similarly expressed its regrets that the talks have broken down between the European Commission and European Parliament under the Conciliation Committee process. ETUC General Secretary, John Monks, noted: ‘A group of countries has become so much addicted to the individual opt-out that, by now, they consider it as their fundamental right to keep it forever’ (Press release, 28 April 2009). ETUC contends that ‘it was not “progress”’ if, at the heart, European social regulation continues to have a clause stating that minimum standards on health and safety do not apply when a worker has signed a sheet of paper “opting out”’(Press release, 2 April 2009).

Provisions of directive

The working time directive, in force since 1993, sets out a maximum working week of 48 hours (Article 6). At the same time, it makes provisions for paid breaks in the course of the working day (Article 3), and requires a minimum number of paid holidays in the year (Article 7). With regard to the length of the working week, Article 18 permits Member States a derogation, provided that the principles of the protection of workers’ health and safety are respected and on condition that the worker agrees in writing to opt out of the 48-hour threshold, without being subject to any detriment by the employer, in cases where the worker refused to work more than 48 hours a week.

Working time for road transport workers

While the position on amendments to the directive remain unresolved, proposals from the European Commission to amend the directive on working time for road transport workers have also been rejected by the European Parliament in May 2009. The Parliament supports the call for self-employed transport workers to be included in the coverage of Council Directive 2002/15/EC on the organisation of the working time of persons performing mobile road transport activities – a position that has been welcomed by ETUC (Press release, 5 May 2009).

Sonia McKay, Working Lives Research Institute

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