To recall, 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. After years of behind closed doors negotiations, the European Parliament and the Council were unable to reach a compromise. In April 2009, the Conciliation committee has not reached an agreement on the proposed directive on working time. The European Parliament and Council could not find a compromise on three controversial points: the opt-out, on-call time and multiple contracts.
Obviously, the future of the 'opt-out' was the most controversial issue. 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 The Commission amended proposal has provided that the 'opt-out' would be repealed three years after the proposed Directive entered into force.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. However, the MEPs have demanded to the “opt-out” to come to an end three years after the amended directive enters force.
Whereas the Council common position provided 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 MEPs 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 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.
The amending proposal was, therefore, withdrawn and the current directive remains in force. 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. However, the Commission is very likely to put forward a new proposal. In fact, on 24 March it adopted a Communication on revision of the Working Time Directive. The Commission is now consulting the social partners on the options for reviewing EU rules on working time and then it will decide on any proposal for action. According to the Commission “the present situation is clearly unsatisfactory, and does not ensure that the health and safety of workers is effectively protected across the EU in line with Community law, or that sufficient flexibility is afforded to businesses and workers as regards the organisation of working time.” It is important to mention that Spain, current holder of the EU presidency, is against the use of the opt-out and its inclusion in the directive. However, the end of the opt out could cost billions to the UK.
