‘Opt-outs’ hurdle for working-time directive

By Simon Taylor

Date: 02/09/04

AT THE end of September, the outgoing Commission will make a decision on one of its trickiest issues: how to overhaul the EU's law on the working-time directive which aims to limit time spent at work to 48 hours.

In the case of the UK at least, the rules may have been more honoured in the breach than in the observance. There, the introduction of the directive has made little difference to people's working hours with around four million people or 16% of the workforce working more than 48 hours per week, although the equivalent figure was only 3.3 million or 15% at the beginning of the 1990s. In the same period, the number of people working more than 55 hours per week has increased to around 1.5 million

The original 1993 legislation built in a review before November 2003, the end of the seven-year limit for member states to write the rules into national law. The review covers exceptions from the reference periods, from which the average weekly working time is calculated. It also covers the application of the employee's option not to be bound by the 48-hour limit, the "opt-out".

Unlike the growing debate in France over whether to raise the nationally-imposed 35-hour limit, there is no discussion within the EU over changing the maximum of 48 hours itself. There is consensus that the figure is the right level to protect workers' health.

But other aspects of the existing legislation are fiercely fought over. The fact that the Commission is having to prepare changes to the legislation indicates the difficulty of the subject. The two social partners, the European employers' federation, UNICE, and the European Trade Union Confederation, ETUC, did not have enough common ground to warrant starting a second round of negotiations on an overhaul of the rules. The Commission has stepped into the breach to propose revisions to the legislation.

UNICE says that because of globalization and changes in lifestyles, "flexibility has become even more crucial for companies' competitiveness" since the legislation was first introduced. The employers' group also stresses that employment flexibility is a key part of the EU fulfilling its goal under the Lisbon Agenda of making the Union the most competitive economy in the world.

The unions want a working- time policy which combines flexibility for employers with "real choice" for workers, giving them both healthy working hours and sufficient hours to have a decent wage. Paul Sellers, an expert on the issue at the UK's Trade Union Congress (TUC), says: "This is a health and safety directive. It seems a bad idea that you can opt out of health and safety limits. You wouldn't suggest that someone could opt out of the speed limit just because it gets broken regularly."

The two sides start from diametrically opposed positions with the unions demanding an end to the opt-outs which allow workers to exceed 48 hours by prior agreement with their employers. The employers not only want to keep the opt-outs but they want to make it easier to agree them by allowing them to be negotiated in collective agreements with trade unions

The original directive excluded from its scope managing executives or persons with autonomous decision-making powers and family workers. It also exempted various categories of workers, including security guards, caretakers, hospital workers, press, radio and television staff and those working in film production, post and telecoms, ambulance, fire and civil protection services, gas, water and electricity production. ETUC would like to see existing exemptions scrapped

The European Parliament has called for opt-outs to be scrapped but some observers believe that the increase in the numbers of centre-right and Liberal MEPs after June's elections makes it less likely that the assembly will maintain that position when it tackles the Commission proposal.

Use of the opt-out had been limited since the rules came into force, with only the UK, which negotiated the concessions in 1993, making widespread use of the provision. But since then new member states Cyprus and Malta have also started applying it, while it is used on a limited basis in Luxembourg

The situation was further changed by two European Court of Justice rulings in the SIMAP and Jaeger cases which declared that time spent by off-duty doctors on call at hospitals should count as working time. The extra costs of replacing the hours lost because of enforcement of the rules prompted France, Spain and Germany to start using the opt-outs. As a result, there may well be broader support in the Council of Ministers for keeping the option for exemptions.

Commissioners from the ten new member states are also reported to be more in favour of maintaining the flexibility of opt-outs, particularly as the former Communist states see longer working hours as a way to boost lower productivity.

While it would seem that this means that opt-outs are here to stay, the TUC's Paul Sellers doesn't agree. "It is said that member states are more keen on opt-outs but if there is a solution on the on-call time issues they will be less keen," he said.

The Commission has already suggested creating a sub-category of "the inactive part of on-call time" as a way to deal with the issue. UNICE wants "inactive time" to be completely excluded from the calculation of working time. The Commission's final proposal concerning on-call time may strongly influence how the member states line up on opt-outs.

One aspect that will almost certainly change is a tightening up of the rules on negotiating opt-outs with individual workers. There are allegations in the UK that workers are being forced to sign up to the opt-out before being offered jobs.

"There's a lot of pressure on a substantial minority of workers to have the opt-out", argues Sellers, adding: "It shouldn't be possible to make the opt-out a condition of the contract". One solution would be a ban on references to the opt-out in employment contracts

• Simon Taylor, is a Brussels-based freelance journalist

Preview of the conditions for a Commission proposal for a revised Working Time Directive, planned for the end of September 2004.

• Primary Source

ESO: In Focus: Working Time Directive: European Commission launches second phase of consultation to revise Directive, May 2004 http://www.europeansources.info/record/working-time-directive-european-commission-launches-second-phase-of-consultation-to-revise-directive-may-2004/

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