June social Council discusses working time Directive

EU employment and social affairs ministers met in June 2005 to discuss issues including revision of the working time Directive, a proposal to give legal effect to a social partner agreement on the working time of workers operating cross-border rail services, new employment guidelines, a Green Paper on managing migration to the EU and the creation of a new European Gender Institute.

The Employment, Social Policy, Health and Consumer Affairs Council met on 2-3 June 2005 under the Luxembourg Presidency.

Working time Directive

At the top of the Ministers' agenda was the revision of the EU Directive concerning certain aspects of the organisation of working time (originally adopted in 1993 and now consolidated in Directive 2003/88/EC), on which there has been much debate in recent months.

Commission’s original proposal

In September 2004, the European Commission proposed a draft Directive to revise the working time Directive (EU0410205F), concentrating on the following key areas:

  • new definitions of on-call working. On-call work would be split into two types: 'on-call time', defined as a 'period during which the worker has the obligation to be available at the workplace in order to intervene, at the employer’s request, to carry out his activity or duties'; and the 'inactive part of on-call time', which is a period during which the worker is on call within the meaning of on-call working as defined above, but 'not required by his employer to carry out his activity or duties';
  • the Commission’s proposal retained the Directive’s standard four-month reference period for averaging out working time. However, it would allow Member States to extend this period up to one year by law or regulation, for objective or technical reasons or reasons concerning the organisation of work; and
  • the maintenance of the provision allowing Member States to enable individuals to opt out of the 48-hour limit on average weekly working hours (the 'opt-out'). However, the draft stated that the opt-out should be subject to a collective agreement if possible and the conditions surrounding it should be tightened up.

EP’s first reading

The European Parliament (EP) gave the text a first reading at its plenary session on 11 May 2005 (EU0505205F), proposing a significant number of amendments. Most controversially, it stated that the 48-hour week opt-out provision should be repealed three years after the new revision Directive comes into force.

On the subject of on-call working, the EP stated that the entire period of on-call working, including the inactive part, should be regarded as working time, although derogations from this may be provided for by collective agreement or by law.

On the subject of reference periods, the EP stated that Member States should be able to extend this period up to 12 months only if workers are covered by collective agreements providing for such a 12-month reference period or, if 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.

Discussion at June 2005 Council

On the basis of the EP’s text, which has severely upset the employer lobby in the UK (the Member State that makes most widespread use of the opt-out provision), the Commission prepared a compromise text for discussion at the 2-3 June Council. This text aims to find common ground between the varying views of the delegations in the Council. For example, on the opt-out, it suggests that it should remain in force for the three years following the implementation of the Directive, following which individual Member States can apply for prolongation on the basis of labour market considerations.

In general, ministers agreed that the Commission’s text was a starting point for further discussions, although they noted that they had not at that stage had time to view it in detail. Debate focused on the opt-out, with two 'camps' building among delegations: on the one hand those that are calling for the opt-out to be prolonged on the basis of freedom of choice and the promotion of economic growth (these include the UK and reportedly also Poland and a number of other new Member States); and on the other hand those who do not see the need for a permanent opt-out, believing that a 12-month reference period for averaging out working time offers sufficient flexibility.

François Biltgen, the Luxembourg Minister of Labour, stated that, although the discussions had not advanced at the Council, they had not represented a step back either. He added that there is a need to act urgently on this dossier, due to the legal uncertainly surrounding on-call working that has resulted from the European Court of Justice rulings in the Simap (C-303/98) and Jaeger (C-151/02) cases (EU0310202N). . He also stated that all parties had welcomed the Commission’s efforts to find a compromise and that the key point to resolve is the opt-out. The EU Commissioner for Employment, Social Affairs and Equal Opportunities, Vladimír Špidla, stressed that there was a need to 'continue making an effort and work toward a result'. He added that the discussion was 'useful and covered many areas', noting that the Commission will 'do its best to reach a compromise as soon as possible'.

Working time for mobile workers in the rail sector

The June Council reached political agreement on a draft Directive implementing the sectoral social partners’ agreement on working time for mobile workers in the rail industry who operate on the rail network of at least two Member States and cross borders during their working day. The agreement (EU0311202N) was concluded on 27 January 2004 between the EU-level social partners in the rail sector, the Community of European Railways (CER) and the European Transport Workers’ Federation (ETF). It regulates rest periods, driving time and driving periods for these types of mobile workers, which are excluded from the 1993 working time Directive.

In accordance with Article 139 of the Treaty establishing the European Community (TEC), the signatory parties asked for the agreement to be implemented by Council decision, on a proposal from the Commission. Accordingly, the Commission issued a proposal for a Directive on 8 February 2005 (EU0503202N), which was discussed at the June Council, resulting in political agreement.

Although the EP does not need to be consulted on this proposal, the Commission has forwarded it the text so that it can communicate an opinion if it wishes. The same applies to the European Economic and Social Committee (EESC) and the Committee of the Regions (CoR). Once the Council’s political agreement has been formally adopted and the text finalised, the Directive will be published in the Official Journal of the European Union, on which date it will come into force.

Other issues

Ministers also:

  • discussed integrated guidelines to Member States in the area of employment policy for the period from 2005 to 2008, issued by the Commission in April 2005 (EU0504203F);
  • held an exchange of views on a Commission Green Paper on managing economic migration to the EU, issued in January 2005 (EU0501208F). Ministers debated which issues should be resolved at EU level and which should be the subject of regulation at national level. They stressed that any measures should be flexible and take into account the differences of individual Member States, such as varying demographic situations; and
  • held a general discussion on the proposed creation of a European Gender Institute (EU0503205F), following the conclusions on this issue of the June 2004 European Council (EU0406202F). The decision on where the institute will be located will be decided at intergovernmental level - at the social affairs Council meeting, those delegations with an interest in hosting the institute set out their candidatures.

Commentary

The most high-profile item on the agenda of the June 2005 Council meeting - the last formal social affairs Council under the Luxembourg Presidency - was the revision of the working time Directive. It is clear that the coming months will see intense work on this issue, as the Commission tries to find common ground for a compromise within the Council. The opt-out will be the most difficult issue to resolve, given the strength of feeling to maintain it in some Member States, notably the UK. It remains to be seen whether a compromise can be found on this point that will satisfy the UK. The UK government assumes the Presidency of the Council for six months from 1 July 2005 and it will be interesting to see whether a deal on this issue can be reached under the stewardship of the UK government, or whether it will be left to the Austrian government, which takes on the Presidency from 1 January 2006. (Andrea Broughton, IRS)

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