The European Parliament’s Employment and Social Affairs Committe has adopted a report on the Working Time Directive and narrrowly voted to abolish the right to opt-outs.
The 1993 directive laying down a maximum 48 hour working week is coming up for review. The European Commission has embarked in recent weeks on a wide-ranging consultation exercise with the parties concerned.
The Committee adopted the own-initiative report by MEP Alejandro CERCAS ALONSO (PES, E) published in French which sharply criticises abuses of the individual opt-out clause, especially in the United Kingdom. At this stage MEPs are simply seeking to influence the direction of the Commission’s reviewm but if the Commission proposes new draft legislation, this will come before Parliament for scrutiny.
In 1993 the UK negotiated the inclusion of an opt-out clause which allows individual Member States not to apply the 48 hour weekly maximum under certain conditions. These are that the individual worker must give his consent and not be penalised if he refuses to sign an opt-out, and the employer must keep up-to-date records of all workers who do sign opt-outs. Although opt-outs are not exclusive to the UK, they are most widely used in that country.
The report was adopted in committee as a whole by 19 votes to 15 with three abstentions. But on the specific issue of abolishing the right to opt-outs, MEPs voted by 19 votes to 18, to end the opt-out system, as quickly as possible and by 1 January 2007 at the latest. This close vote means the result a Plenary vote is uncertain.
MEPs also urged the Commission to institute an infringement procedure immediately against the UK government, arguing that it is guilty of "widespread and systematic abuse of the directive".
The 1993 directive provides basic protection for most workers, the chief exception being managers. It gives workers the right to a daily rest period of 11 hours, breaks during working hours, a maximum 48 hour working week and 4 weeks minimum annual holiday. And generally an employee must not work more than 8 hours out of 24 at night-time.
MEPs in the committee are worried about the potential for abuse of the right to individual opt-outs. For example it is common for opt-out agreements to be signed at the same time as an individual signs his work contract, so it can be questioned whether he has really made a free choice. In addition, a number of other countries are gradually introducing opt-outs in some sectors, thereby undermining the purpose of the directive. Opt-outs are envisaged for health workers in France, Germany and the Netherlands, and in Luxembourg for the hotel and catering trades. With enlargement just round the corner, MEPs in the committee therefore want the Member States to make a serious effort to find alternatives and wait for a revised version of the directive. While MEPs recognise the need for flexibility in the organisation of work, as currently allowed to employers under the directive, they stress that the health and safety of workers must not be subordinated to economic considerations.
Apart from the opt-out issue, the consultation currently being carried out by the European Commission covers the length of reference periods used when calculating working hours as well as measures to ensure a better balance between work and family life, and indeed the very definition of working hours in the light of recent rulings of the EU Court of Justice on time spent "on call". On this last point, the Court has ruled that time spent on call by doctors must be regarded as working time.
Given the urgency of this issue, MEPs in the committee regret the fact that they are at present unable to study the economic and social impact on the health sector, for lack of comparative studies and concrete data. They therefore ask the Commission to provide the Member States with a clear framework with a view to introducing structural solutions, including possible adjustments to the directive, to resolve the issue of how to define and calculate hours spent on call at the workplace.
The committee notes that the European Commission’s consultation paper provides no practical proposals for dealing with the problems highlighted. They therefore urge the Commission to take a clear position on all points in the directive which need to be revised and they recommend that an amended draft directive be drawn up as soon as possible.
