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Matthew Vella
The European Parliament will today vote on a revised working time directive, with the controversial ‘opt-out’ clause expected to be scrapped, that is, the right for workers and employers to opt out of the maximum 48-hour week and work beyond the limit.
The EU’s Directive on Working Time, perhaps one of the Union’s most controversial measures in the social field, is currently undergoing a review in the European Parliament. The proposal will go back to the Council for further consideration by the Member States.
The update of the 1993 working time directive is expected to be voted upon today in Strasbourg. The 1993 directive sets limits of eleven hours per day of working time and 48 hours per week, calculated as an average over 4 months, extendable to 12 months by collective agreement. The main controversy over the Commission’s new proposals is whether the opt-out should be retained.
Under the existing system, individuals can sign an agreement with their employers to opt out of the directive, choosing their own schedule outside the 48 hour time-limit. The UK is the only member state to currently operate this across a range of sectors. Over-time crazy Malta is also in favour of retaining the opt-out clause.
The Commission proposal from September 2004 wants to maintain the opt-out, with a number of safeguards for the individual: the agreement cannot be given at the same time as the employment contract is signed, nor during any probationary period; no worker should suffer any detriment for refusing to opt-out; the employer should keep up-to-date records of the workers working more than 48 hours per week, as well as the actual number of hours worked; and these records should be open to inspection from the competent authorities.
The European Parliament’s Employment Committee has already voted to support an amendment to the legislation which would phase-out the opt-out provision within three years. In his report, recommending the amendment, MEP Alejandro Cercas cited the European Social Charter and the Charter of Fundamental Rights which provide that workers are entitled to the limitation of maximum working hours.
In the 1990s, the UK contested the legality of the directive on the grounds that it could not qualify as a measure for protecting the health and safety of workers. After the Court of Justice in Luxembourg threw out the British case, questioning of the directive’s very existence seems to have ceased. The debate on the September 2004 European Commission proposal for an amended Directive has shown, however, that there is still a substantial amount of discord as to its content, especially as far as the so-called individual opt-out is concerned.
Since the Council’s decision is subject to unanimity, the UK can be expected to veto any attempt to abolish it, as the opt-out’s most stern supporter. Malta is also expected to support the UK.
The opponents of the opt-out probably lead with a slim majority in the European Parliament. The European Trade Union Confederation backs this view, opposing all three of the Commission proposals and calling them “unbalanced and unhelpful to the welfare of workers”. Apart from trade unions, several member states - France, Germany, Spain, and Sweden - would also like to get rid of the opt-out.
The European small businesses federation, UEAPME, however supports the opt-out, arguing that small businesses would be badly hit if workers were not able to put in longer hours in times of peak demand.
“UEAPME considers that this new proposal does not in general take enough account of the needs of enterprises for flexibility in order to facilitate their capacity for adaptation and thereby preserve their competitiveness.
“By tightening up the rules of access and the application of the opt-out, by deciding not to introduce the extension of the reference period to 12 months for the calculation of the weekly 48 hours as a general rule by making the compensatory rest period obligatory within 72 hours, and by making more complex the legislation on managing executives and on family workers, the Commission continues to restrain the possibilities for organising working time, which are so essential to SMEs in order to adapt themselves to the fluctuation of demand.”
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