For the first time since its inception, a conciliation committee [1] has failed to reach an agreement. It emerged on 27 April 2009 that no compromise could be reached between the European Parliament and the European Council on three key points : the opt-out, on-call time and multiple contracts. The European Parliament delegation made the decision to end negotiations with fifteen votes in favour, five abstentions and zero against.
To read more about the five long years of extensive negotiations please read on.
** The article has been updated with the Employment, Social Policy, Health and Consumer Affairs Council conclusions of December 2007.**
Definition of "on call" work
In some countries, there appears to be an increasing use of ‘on-call’ work or duty arrangements. Generally speaking, this is work done on an ‘as-needed basis’, whereby workers must be available at certain times to be called into work when required by their employer. It thus involves unpredictable or irregular working hours for the workers involved. In 2007, the working time review devotes a special section to this issue, examining how on-call work is understood and defined in each country, its regulation and extent, and the nature of any court cases that have dealt with the matter.
Some aspects of on-call work are particularly topical at present. In its judgements in the Simap and Jaeger cases, in 2000 and 2003 respectively, the European Court of Justice ruled that all time spent on call should be classified as working time, even where the employer provides a place to sleep while the employees are not actively engaged in their duties. Both cases referred to doctors’ on-call periods. The rulings have had an effect at national level, as the legislation in many Member States does not – or did not at the time of the rulings – regard all time spent on call as working time. At EU level, conforming with the judgements was one of the key issues in the European Commission’s proposed revision of the working time Directive which remains deadlocked in the Council.
EC launches public consultation
Following a number of legal judgements by the European Court of Justice (ECJ), the DG Employment and Social Affairs launched ’Phase 1’ of a public consultation and review process on the Working Time Directive (EWTD) in early 2004.
The European Commission issued a Communication on the review of the Directive which analysed the opt-outs and derogations in different Member States, summarised recent case law concerning the definition of working time and the qualification of time spent "on-call" and set out the framework for a public consultation on the implementation of the Directive.
’Phase 1’ of the consultation was closed on 31 March 2004 and comments were proposed on the following issues :
The length of reference periods (currently four months, with certain provisions allowing for 6 months or a year) ;
The definition of working time following recent European Court of Justice rulings on time spent ’on call’
The conditions for the application of the opt-out - Measures to improve the balance between work and family life
How to find the best balance of these measures.
On 19 May 2004, DG Employment announced ’Phase 2’ of the consultation. Based on the results of ’Phase 1’, the EC identified specific areas that workers’ and employers’ representatives ("social partners") should negotiate on.
EC publishes new proposed EWTD
The European Commission anounced on 23rd September 2004 its controversial proposal to update the 1993 working time Directive.
In its proposal, the EC has kept the individual opt-out from the 48 hour week, although it has included stricter conditions for it (EPHA members can read EPHA’s briefing on the opt-out).
Member States would be given the possibility to extend the reference period for calculating the 48-hour maximum working week from 4 months to a year. Time spent on call that is not worked would not be counted as working time, with compensatory rest granted within 72 hours.
The proposal was sent to the Council and the European Parliament for agreement.
The Health Council met on 4th October 2004 in Luxemburg and this issue was discussed. Please read EPHA’s related article "Health Council discusses health care" for more information.
Commission’s press release, 23/09/04
June 2006 : latest developments
The 08-09 December 2004 Employment, Social Policy, Health and Consumer Affairs Council was not able to reach an agreement on the WTD, given the differences in the labour market. The key issues that blocked the discussion remain : ie the opt-out provision and the question on the whether the maximum weekly working time is calculated per contract or worker.
Again, the Council of Ministers failed to agree on a revision of the EU’s working time directive in June 2006. The stalemate still centres on the opt-out clause. This may force the European Commission to take legal action against Member States that are currently violating European Court of Justice rulings over on call time.
The Finnish presidency will put the issue on the agenda of Ministers during Fall 2006.
November 2006 : The Finnish Presidency fails to secure an agreement
Despite an attempt from the Finnish Presidency to end the stalemate on the working time directive, the Council of Ministers have failed once again to arrive at an agreement in their extraordinary meeting which was held on 7 November 2006.
Tarja Filatov, the Finnish Labour Minister proposed a compromised text which, if adopted would have imposed stricter conditions for the UK’s opt-out clause, and would have reduced the average weekly working hours in a 3 month period from 65 to 60.
However no majority could be obtained on the Finnish amendments due to major disagreements surrounding the opt-out clause and as a result of different labour market situations.
France, Italy and Spain proposed an amendment for the future abolition of the opt-out clause which was inevitably refused by the UK with the support of Germany and several other Eastern European countries.
As a result of the lack of agreement from member states,the Commission has asserted that the 23 member states failing to meet the requirements of the directive will soon face infringement proceedings.
December 2007 : The Council agreed to postpone a decision in order to further pursue the dialogue
The Employment, Social Policy, Health and Consumer Affairs Council met on 5 December 2007 in Brussels. Among other issues, the Council sought to reach political agreement on two draft Directives, the first one aimed at amending Directive 2003/88/EC concerning certain aspects of the organisation of working time, the second one aimed at establishing working conditions for temporary agency workers.
After extensive bilateral consultations with different member states and the Commission, the EU rotating Presidency held by Portugal in December, decided to present compromise proposals for both directives. Given the difficulties in finding isolated solutions for each of the files, the Presidency decided that there would be added value in working on a simultaneous and integrated solution, thus allowing member states to find a balance between the two directives that would be acceptable from the political point of view.
The connection between the two directives, and more specifically the proposals presented by the Presidency, was considered a solid and viable basis for negotiation towards an agreement in both.
Having in mind the fact that this proposal is still very recent, as well as the sensitive nature of these directives to some Member States and the importance of exploring all attempts to reach an agreement as large as possible before final decision, the Council agreed that the best option at this moment was to postpone a decision, in order to further pursue the dialogue.
Nevertheless, the Presidency noted that a vast majority of Member States had spoken in favour of an integrated solution for the directives, building a global equilibrium between the two, and that many Member States had pressing needs to address labour market regulation problems which depend on a solution to these files. Achieving results in the short-term is therefore of utmost importance for the EU as a whole.
9 June 2008 The European Council adopted these main points (the second political body of the European Union, with the European Parliament) :
On-call time to be split into active and inactive on-call time. Active on-call time to be counted as working time
Inactive on-call time may not be counted as rest time and can be counted as working time if national laws or social partners agree
Standard maximum limit remains at 48 working hours per week unless an individual worker chooses otherwise (opt-out)
New protective limit (cap) for workers who opt out : maximum working week of 60 hours unless social partners agree otherwise
new cap for workers who opt-out if inactive on-call time is counted as working time : maximum working week of 65 hours
The cap protects all workers employed for longer than 10 weeks with one employer.
Opt-out only under certain conditions, such as : no signature during first month of employment, no victimisation for not signing or withdrawing opt-out, employers must keep records on working hours of opted-out workers
17 December 2008 European Parliament scrap opt-outs
On 17 December 2008 the European Parliament yesterday (17 December) voted in Strasbourg to discontinue the option of opt-outs from the Working Time Directive and enforce an EU-wide maximum working week of 48 hours. The vote achieved the required absolute majority of 421 votes to 273 This vote is contrary to the aims of a group of Member States, led by the UK. Despite a decisive move on the behalf of the Parliament, this debate is, by no means, over.
John Black, President of the Royal College of Physicians (UK) was quoted in the Daily Telegraph (UK), saying that the moves would be "disastrous" for Patient care and for medical training as "no surgeon will be able to get a long enough shift to gain experience," the article said.
What happens next ?
The Council of Ministers has four months to react to the Parliament’s position.
The two institutions then have eight weeks to convene a conciliation committee,
The committee will then have eight weeks to either find a compromise or decide that agreement is impossible.
The debate between the Council and Parliament will be divided on two key issues : on-call time and opt-outs. Can the Parliament convince the Member States to accept the loss of their opt-outs ? Will the Council push for a compromise by taking the Parliament’s demands for on-call time to be considered as working time in exchange for keeping their opt-outs ? Or will the Council remain strong and not allow the Parliament any of their demands.
The Czech Presidency have stated their desire to conclude the debate by the end of their term in June 2009.
Related documents
ECJ to rule on UK’s implementation of the European Working Time Directive
The ECJ considers on-call duty as working time
New ECJ judgement : emergency workers cannot exceed 48 hour working week
