The EU Ministers have been failing to reach an agreement on the working time directive and on the temporary agency workers for several years. The 1993 Working Time Directive provides that workers must not work more than an average of 48 hours a week although it allows for derogations. The UK has got an “opt-out” clause successfully negotiated by the Conservative government. Following a number of European Court of Justice Rulings the European Commission has decided to revise the text and in 2004 it put forward a proposal to amend the Directive.
The Working time directive should not be amended but abolished, rules on working time should be dealt at national and company level and not at EU level.
The Employment Council on 9 June 2008 has reached a political agreement on the Directive on working time and on the Directive regulating the working conditions of temporary agency workers. It was a second compromise proposal that made the deal possible which was reached in the early hours of the morning. Spain, Belgium, Hungary, Greece and Cyprus have issued a declaration opposing to the text of the directive and calling to the European Parliament to amend it.
The EU’s Member States have agreed to keep the UK's opt out from the 48 hours working week cap.
The Council formally adopted its common position on 15 September 2008. The European Commission has pointed out that the common position includes a number of aspects which differ from the Commission's amended proposal as well as it does not take on board several amendments proposed by Parliament. The European Parliament has delivered its first-reading opinion on the working time directive in May 2005 and voted to scrap the UK opt-out by 2012. Nevertheless, taking into account the need to clarify the legal situation the Commission has supported the overall agreement.
The Commission has proposed that active periods of on-call time (periods where workers were effectively carrying out their duties in response to a call) would always be considered as working time whereas inactive periods would not be considered as working time unless national law or collective agreements so provided. Nevertheless, inactive periods could never be counted as rest time. The Council’s common position introduced no change regarding 'active' on-call time but would allow 'inactive' periods to be considered either as working time or as rest time, according to national law or to collective agreements.
Obviously, the future of the 'opt-out' was the most controversial issue at the Council discussions during the first reading. Presently, the working time Directive limits working time to 48 hours per week on average, including any overtime. Nevertheless, under the 'opt-out' a worker may agree with the employer to work hours exceeding that limit. But, the Directive does not set any explicit working time limit. The Commission amended proposal has provided that the 'opt-out' would be repealed three years after the proposed Directive entered into force. According to the Council’s common position the standard maximum limit continues to be 48 working hours per week unless an individual worker chooses otherwise. There is a new protective limit for opted-out workers which would be 60 hours on average a week when calculated over a period of three months unless collective agreements provide otherwise or 65 hours if inactive periods of on-call time is considered as working time and if no collective agreements applied. The Commission has stressed that the Council’s common position introduced a new protective framework for the opt-out.
The Council’s common position also provides for exclusion of short-term workers from certain protective conditions. Hence, workers who are employed for not more than 10 weeks in a year by the same employer are excluded from two of the protective conditions for opted-out workers. Those workers may agree to opt-out during the first four weeks of employment and they may work hours which exceed the maximum limit for opted-out workers which is 60 hours per week or 65 hours per week, if inactive on-call time is counted as working time, unless a collective agreement or agreement of the social partners provides otherwise.
The Commission takes the view that supporting the common position is the best way of allowing the legislative procedure to continue.
The proposal must be adopted under the codecision procedure therefore the compromise reached by the Council must be negotiated with the European Parliament. The working time directive is presently under second reading revision in the European Parliament.
On 5 November, the European Parliament Committee on Employment and Social Affairs adopted Alejandro Cercas’s report with 35 votes for, 13 against and 2 abstentions. It is important to mention that Labour MEPs have voted against the deal agreed by Gordon Brown. The Committee has rejected the Council’s compromise as it failed to include any of the European Parliament’s amendments. Alejandro Cercas has criticized the Council's common position because it still contains opt-out provisions which allow the UK to go further than the agreed weekly 48-hour working cap. The MEPs have, therefore, reaffirmed their first reading vote by adopting an amendment which provides that the “opt-out” should come to an end three years after the amended directive enters force.
Whereas the Council common position provides that the inactive period of on-call time should not be considered as working time except national legislation or an agreement between the social partners provides for it, the Committee members believe that the full period of on-call time, inactive or not, should be considered as working time.
The Council’s common position has left to the Member States to decide the reasonable period within which compensatory rest periods should be granted. However, the European Parliament committee believes that such periods should be granted at the end of the working period according to the applicable legislation or a social partner’s agreement.
Philip Bushill-Matthews MEP, Conservative employment spokesman, said “(…) While anti-social working patterns should be discouraged, it is not the place of MEPs to tell people how long they are allowed to work. During a recession we should be encouraging hard work, not outlawing it; and enabling personal choice rather than restricting it.”
According to UEAPME, the European craft and SME employers’ organization the Committee vote is a “(…) short-sighted and irresponsible behaviour, which will plunge Europe back into legal uncertainty and damage both employers and employees if confirmed in December.”
The outcome of the votes at the Employment Committee has made clear that there would be tough negotiations ahead with the Council. The informal trialogues aiming at reaching a compromise before the European Parliament adopts its position are set to start. Such negotiations between the European Parliament’s rapporteur, the French presidency and the Commission will take place behind close doors.
The European Parliament will vote on the directive in a second reading on 17 December. The Employment Council will meet on 15-16 December. If an agreement is not reached the revision of the Working Time Directive will go through the conciliation procedure.
Gordon Brown has agreed to provide temporary workers with the same rights as permanent workers in exchange of the UK being allowed to keep the working time Directive opt-out from the 48 hours working week cap. However, he might end up with nothing.
It remains to be seen which compromises will come out from the second reading. According to Europolitics, Alejandro Cercas has said that he is willing to negotiate with the Council but he will not move from the “principles behind the text.” He said: “We can talk about the content of the report. But for us it will be impossible to discuss the principles behind the report.”
Gordon Brown might see the UK “opt-out” scraped at the table of negotiations and the UK will not be able to veto it. The UK might not be able to build a blocking minority and the proposal will reach the necessary qualified majority voting.
