Mixed reaction to European Parliament rejection of working time opt-out

In December 2008, the European Parliament voted to end the scope for workers to opt out of the EU working time directive’s 48-hour limit on average weekly working time. UK trade unions welcomed the move; however, it was strongly criticised by employer organisations and government ministers. The trade unions argued that the next stage was to tackle low pay and productivity, while employers and the government still aim to protect ‘freedom of choice’.

On 17 December 2008, the European Parliament voted for a series of significant amendments to the ‘common position’ agreed in June 2008 by EU employment ministers on revising Directive 2003/88/EC concerning certain aspects of the organisation of working time.

Background

The Employment, Social Policy, Health and Consumer Affairs Council (EPSCO) agreed a common position on the revision of the working time directive only after lengthy and difficult negotiations (EU0807049I, EU0612019I). Crucially, it agreed to retain the provision allowing individual workers to ‘opt out’ of the 48-hour maximum weekly working time limit, although this would be subject to stronger safeguards, closer monitoring and reinforced protective conditions for the workers involved. With regard to another key issue – whether ‘on-call’ time should count as working time – the common position specified that any ‘inactive’ part of on-call time would not be treated as working time unless otherwise agreed; however, the inactive part could not be counted as a rest period.

European Parliament amendments

When EPSCO’s common position was returned to the European Parliament for a second reading, Members of the European Parliament (MEPs) voted for the abolition of the opt-out three years after the revised directive comes into force. They also called for the entire period of on-call time, including any inactive part, to count as working time.

It seems unlikely that the Council will accept these amendments. The proposal is expected to be referred to the Parliament-Council Conciliation Committee under the EU’s co-decision procedure.

Reactions of UK social partners

Controversially, the UK Working Time Regulations have incorporated the individual opt-out provision since their inception in 1998 – as advocated by employer organisations but opposed by trade unions.

Trade unions

The Trades Union Congress (TUC) welcomed the European Parliament’s stance. General Secretary, Brendan Barber, stated:

This is an early Christmas present for Britain’s hardest workers, and for the families who see too little of them. Members of the European Parliament have courageously defied the abusers and the slave-drivers over the loss of the “right” to work people till they drop. Britain’s workers will still be working hard to get the British economy back on its feet, but they will now be protected from the stress, heart disease and accidents that result from persistent long hours. We now need to tackle the low pay and poor productivity that were kept alive by long-hours working. No-one should have to work more than 48 hours a week all year round to put food on the table or a roof over their heads.

Employer organisations

However, employer groups urged the UK government and other Member States to insist on retaining the opt-out in forthcoming discussions with the European Parliament. The Deputy Director-General of the Confederation of British Industry (CBI), John Cridland, commented:

This vote is misguided. Trying to ban people from choosing to work more than 48 hours a week is a mistake, and would replace opportunity with obstruction. In the current downturn, a family might depend on one parent being able to work extra hours if the other loses their job. Many people want to work longer hours, in professions ranging from manufacturing to medical research. They do so to further their careers or earn extra money, or to help their firm through difficulties. They should be able to do so if they choose. We hope the Council of Ministers stand firm against these amendments and back the compromise agreed in June in which the opt-out was retained.

Similarly, the Head of Employment Policy at the manufacturers’ organisation, the Engineering Employers’ Federation (EEF), David Yeandle, declared:

By failing to follow their own government’s stance, those Labour MEPs that voted in favour of the ending of the opt-out have let down both employers and employees … It is now critical that Member States hold firm to the Council position to retain the opt-out when negotiating with the European Parliament.

UK government position

The UK Business Secretary, Lord Peter Mandelson, was reported as saying that he was

determined to protect the opt-out. Millions of employees and businesses in the UK and across Europe have benefited from freedom of choice on working hours for many years. To take that choice away would be absurd.

Minister of State for Employment Relations and Postal Affairs, Pat McFadden, pointed out that the opt-out provision was used by a number of Member States besides the UK. Moreover, the Council’s common position included new safeguards for employees, including a ban on being asked to sign an opt-out during the first month of employment and a ceiling of 60 working hours a week.

Mark Hall, IRRU, University of Warwick