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EU Commission's consultation on working time - The Sunday Times - 1/2/2004

EU Commission's consultation on working time

On January 5, the European Commission launched a call for interested parties to participate in a consultation on working time, indicating a possible revision of the Working Time Directive (WTD) in the coming months. The Commission's document has three aims:

(a) to analyse the implementation of the opt-out and of derogations to the reference period over which working time is calculated;

(b) to analyse the impact of recent case-law, such as SIMAP (2000) and Jaeger (2003), on the definition of working time and the qualification of time spent 'on-call';

(c) the consultation of interested parties on the possible future revision of the directive.

Both SIMAP and Jaeger focused on whether time spent on call constituted working time and both concerned the health sector. In both cases the European Court of Justice ruled that time spent on call should be regarded as working time. These judgments will undoubtedly affect the health sector mainly, but not exclusively.

The contents of the WTD apply to all employees with the exception of managing executives or other persons with autonomous decision-making power, family workers and workers officiating at religious ceremonies in churches or religious communities.

The hottest issue certainly remains the possibility of resorting to the opt-out clause provided for in the WTD. The opt-out is the possibility for a member state to make provision in its national legislation for the possibility of a worker to work, on average, more than 48 hours a week, provided that certain conditions are complied with.

The conditions are:

(a) a worker's agreement to work more than 48 hours must be free and informed;

(b) a worker may not suffer any disadvantage if he decides not to opt out;

(c) an employer must keep up-to-date records of all workers who agree to work more;

(d) these records must be made available to the competent authorities who can restrict working hours above the average 48-hour maximum for health and safety reasons.

The contents of the WTD have been transposed by the Organisation of Working Time Regulations (Legal Notice 247/2003). With regard to the opt-out, the analogous Maltese provisions provide that an agreement to waive the 48-hour rule shall be in writing and shall, at all times, be terminable by the worker, by giving notice to the employer in writing of between seven days and three months. The Maltese regulations should enter into force on April 5.


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Note from MAM

The Permanent Working Group of European Junior doctors
has forwarded a detailed document to MAM . This document from the european commission calls for the complete elimination of all opt outs - category - state or individual. This would mean that nobody could work more than 48 hours per week.

This directive still has to pass from the european parliament and the council of ministers, and is likely to meet opposition from the big countries.

To date the opt outs are still there

Martin Balzan

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