EurWORK European Observatory of Working Life

European Parliament votes to end opt-out from working time Directive

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At its May 2005 plenary session, the European Parliament approved a text amending the European Commission’s draft Directive on the revision of the working time Directive. One of the main areas of revision is the elimination of the opt-out from the maximum 48-hour week after three years.

At its plenary session on 11 May 2005, the European Parliament (EP) gave a first reading to the European Commission’s proposal, issued in September 2004 (EU0410205F), to revise the EU Directive concerning certain aspects of the organisation of working time (originally adopted in 1993 and now consolidated in Directive 2003/88/EC). The EP was voting on a report prepared by the Spanish MEP, Alejandro Cercas, which amends the Commission’s proposal significantly. The EP approved the text, which will now be transferred back to the Council of Ministers. The key areas of amendment are listed below.

Opt-out from maximum working week

The EP’s legislative resolution amends the conditions governing the Directive's provision allowing Member States to enable employers to offer individual employees the option of 'opting out' of the maximum 48-hour average working week. The Commission had proposed retaining the opt-out, but tightening up its regulation in a range of areas, including introducing a maximum duration for the opt-out of one year (renewable). The EP wants to reduce this in the first instance to six months and then have the opt-out provision repealed 36 months after the revised Directive comes into force.

On-call work

On-call working is one of the areas of revision in the Commission’s draft Directive, which divides on-call work into 'active' and 'inactive' parts, stating that the inactive part should not be regarded as working time. This follows judgments by the European Court of Justice on the subject of on-call working (EU0310202N). The EP’s resolution amends this, stating that 'the entire period of on-call time, including the inactive part, shall be regarded as working time'. However, it goes on to state that the inactive part of on-call time 'may be calculated in a specific manner in order to comply with the maximum weekly average working time', if this is allowed for by collective agreements or other agreements or by laws or regulations. Therefore, the EP views the whole of on-call working as working time, although this may be derogated from by agreement or law.

Calculation of working time

The EP seeks to insert a new Article into the Directive, dealing with the calculation of working time. It states that where workers have more than one work contract, their working time shall be the sum of the periods of time worked under each of the contracts.

Reference periods

The Commission had proposed that Member States should be able to extend the reference period for calculating average working time up to 12 months (from the present standard reference period of four months). The EP wants Member States to be able to extend the reference period up to 12 months only in the following circumstances:

  • where workers are covered by collective agreements providing for a 12-month reference period; or
  • where there is no collective agreement, as long as the employer informs and consults with workers about the introduction of the new working time pattern, and the employer takes the necessary measures to prevent and/or remedy health and safety risks.

Reactions

In general, trade unions have welcomed the EP’s vote. The European Trade Union Confederation (ETUC) stated: 'This vote sends out a clear signal to the Council and the European Commission that it is time for an end to the 'opt-out' clause. Today’s vote is important for a number of reasons. It demonstrates a commitment on the part of a large number of the political groups represented in the Parliament to play a significant role in defending the European social model and fundamental rights against neo-liberal ideas. It is proof that a strong social Europe really does exist.'

However, employer representatives are strongly opposed to the amendments, believing that the revision would severely restrict flexibility and pose a threat to employment levels. Philippe de Buck, secretary general of the Union of Industrial and Employers’ Confederations of Europe (UNICE), representing private sector employers, issued the following statement: 'UNICE deplores the changes made. Reducing flexibility in working time is inconsistent with the objectives of enhancing growths and jobs in Europe. In its resolution on the mid-term review of the Lisbon strategy, the European Parliament stressed that sustainable growth and employment are Europe's most pressing goals. Yet, the report contains proposals which put the fulfilment of these goals in jeopardy. Flexibility in working time is essential for the competitiveness of companies, in particular for SMEs. But it is also in the interest of workers. When the European Commission and the Council look at the revised Directive, they should not underestimate the consequences of further restricting this flexibility.'

The UK is the country that will be most affected if the opt-out from the maximum average 48-hour week is eliminated, as it makes most widespread use of the opt-out (UK0410103N). The UK employers’ organisation, the Confederation of British Industry (CBI), has issued a statement condemning the EP’s text and calling on the UK’s newly re-elected Labour Party government to oppose the text in the Council. The CBI director-general, Digby Jones, commented: 'Today's vote shows the European Parliament has learned nothing about the challenge of globalisation ... the current opt-out system works, in large part, extremely well.  It gives employees choice in the hours they work, allowing them to generate wealth for their families and companies to generate wealth for the nation.  People need the opportunity to aspire and earn extra money if they want to. This is not a health and safety issue, and employers must ensure that isolated abuses of the system are rooted out.  But I want to hear from the trade unions just who is going to compensate families for lost income - I'm sure it won't be the government or indeed the unions themselves ... if implemented, this Directive would restrict the UK's highly flexible labour market, and undermine the EU's declared aim to become the most competitive economy in the world by 2010.  If we allow Britain's economy to become hidebound in this way, emerging economies like China and India will walk all over us.'

Commentary

The draft Directive, as amended by the EP, will now be forwarded to the Council of Ministers for further deliberation, leading to the possible adoption of a common position by qualified majority vote. It is likely to feature on the agenda of the 2-3 June 2005 social affairs Council. The proposal will then be returned to the EP for a second reading. If the EP makes further amendments to the proposal at this second reading, it will be returned once more to the Council. If, at this stage, the Council cannot accept the EP’s amendments the text will be forwarded to a conciliation committee, which will aim to find a solution acceptable to both the Council and the EP.

The Commission is likely to keep open the channels of dialogue. Vladimír Špidla, the Commissioner for Employment, Social Affairs and Equal Opportunities, has stated that the Commission cannot accept the EP’s amendment on the opt-out in its current form: 'I am aware that the opt-out is a political question and one of principle. In this context the Commission will continue intensive dialogue with the Parliament.'

It is clear that this proposal has a long way to go before final adoption. Given the contentious nature of its content, particularly in the case of the opt-out from the maximum working week, the coming months are likely to see intense debate and lobbying, particularly on the part of the newly-elected Labour government in the UK, which will be trying to achieve a blocking minority in the Council. (Andrea Broughton, IRS)

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