Dr Francis Agius tells European Commission that Malta needs opt outs from working time directive - 11/3/2004


The Parliamentary Secretary in the Ministry for Social Policy, the Hon. Francis Agius, who is deputising for the Deputy Prime Minister and Minister for Social Policy, the Hon. Lawrence Gonzi, addressed the EPSCO council this morning.

The following is the speech delivered by the Hon. Agius.

Recommendations on the position to be adopted by the Maltese delegation attending the EPSCO Council debate on item 7 of the draft agenda dealing with the Commission’s Communication on the organisation of working time.

Summary of recommended position
Malta’s interests focus on 2 issues:
• Retention of the opt-out clause while supporting any initiatives towards the curbing of abuse in the use of the opt-out clause.
• Clarification of the issue of compensatory rest by amendments to the directive to mitigate the rigid position taken by the ECJ.

Malta considers that some adjustments to the Working Time Directive may be required in the light of the recent ECJ judgements, relating primarily to the lack of flexibility in the ruling regarding the issue of compensatory rest, and their substantial implications.

Reference period for the calculation of average working time

Under current Maltese legislation, the reference period over which average working time is calculated is either 17 weeks or between 17 weeks and 52 weeks, as may be specified in the respective collective agreement provided that there are sufficient objective or technical reasons. In line with the provisions of article 17.4 of the Working Time Directive, the reference period is 52 weeks in the case of employees within the manufacturing and tourism sector (which includes travel and catering establishments) following agreement between the two sides of industry within the Employment Relations Board. Increasing the reference period from 17 weeks to 52 weeks through legislative provisions and not through collective bargaining, would allow for a higher degree of flexibility not present in the current directive.

The definition of working time following ECJ rulings on time spent ‘on-call’

In Malta, on-call time at work has been considered as working time for a number of years and is thus in compliance with the interpretation given by the ECJ. Amendments redefining the concept of working time to exclude certain elements of on-call time will probably be considered to be minimum requirements and Member States would still retain the discretion of retaining the status quo. In these circumstances, Malta can well appreciate the problems being faced by a number of member states and would not object to such a proposal.

Compensatory rest

Whilst compensatory rest should in principle be granted as soon as possible after missed rest for which it compensates, there is no doubt that the Court’s ruling is too rigid and does not allow any degree of flexibility. The Court’s ruling application across industry could cause very serious problems in the scheduling of work of the various enterprises so affected. Malta would like to register its concern on the potential consequences which the ECJs interpretation of compensatory rest will have. It is therefore being proposed that the Working Time Directive be amended so as to reflect the principle that, whilst in general compensatory rest should as much as possible be taken after a missed rest period, minor deviations in the granting of compensatory rest be allowed, provided that such rest shall be granted within a specified period [e.g. in the 7 or 14 day period] following the missed rest. In any case, the concept of postponing a rest period in the existing Working Time Directive is already accepted in the case of the weekly rest period. In fact, under article 16.1, the granting of the 24 hour weekly rest period may be postponed to the next week.

Removal of the opt-out clause

During its negotiations for accession Malta had expressed its concern on the implementation of the Working Time Directive so much so that it was the only labour-related Directive for which Malta requested a transitional arrangement. Problems of compliance with the provisions of Article 6.2 existed across the board. However, Malta restricted its request for this arrangement to the manufacturing sector, which was identified as the most vulnerable sector to the introduction of the said provisions of the Directive as it resulted from an impact assessment carried out by an independent firm of consultants.

Malta’s original request for a transitional period of four years, to enable the phased implementation of these provisions in the manufacturing industry, was accepted only following protracted negotiations and Malta’s revision of the time and scope of the request up to the 31st July 2004 to cover specific sub-sectors of the manufacturing industry. Where existing collective agreements in these sub-sectors contained clauses concerning the provisions of Article 6.2 of the Directive with validity beyond July 2004, the transitory period was extended up to the 31st December 2004.

The most significant aspect that led to Malta’s revision of its original request was the comfort provided by the individual opt-out clause in terms of the Directive. The possible removal of the opt-out clause has therefore renewed Malta’s concern that the resulting situation would seriously and negatively impact not only the manufacturing sector but also other sectors of the Maltese economy, through the reduction of the flexibility of the labour market. This loss of flexibility will not only result in additional costs to employers while reducing the employees’ income but could also cost the loss of jobs of those employees which the proposed amendment to the Directive seeks to protect

Malta’s Health sector has also expressed its serious concern on the possible removal of the opt-out clause of the Directive. Specialist health care resources are very limited due to the small numbers of specialist doctors and are also relatively expensive resource to train and retain. The fact that Malta already experiences a significant net outflow of doctors yearly, coupled with the shortage of specialist doctors in certain Member States and these States’ capability of offering grossly superior financial packages and career prospects would further compound the situation for the Maltese health services. The Health authorities reported that it would have problems to guarantee current level of service in the short and medium-term if the opt-out clause were to be removed. Moreover, a Task Force set up within the Health Division has estimated that the removal of the opt-out clause would necessitate a 100% increase in the complement of Senior Registrars and a 30% increase in the training grades complement.

There is no doubt that all stakeholders in Malta are aware of the importance of health and safety at the workplace and fully subscribe to measures to improve standards and to properly implement the Working Time Directive. It is also important to emphasise the worker’s right to work, and to the individual’s right to choose how long he or she works, provided that such a choice is free and informed. Provided that employers provide a safe and healthy work environment, the individual worker’s right to choose should be retained. Malta therefore strongly supports the retention of the opt-out clause provided in the Working Time Directive. At the same time it would support any initiative aimed at reducing concerns regarding any potential abuse in the use of the opt-out clause.

Malta also supports any initiative to consider and further discuss any concrete measures aimed at improving work-family balance, but feels that it would be prudent to allow more time for Member States, old and new, to consolidate the improvements which the Working Time Directive and other relevant Directives have brought about. Whilst keeping open the debate on particular measures which may be considered necessary in the future to continue improving work-family balance, it is felt that at this stage priority should be given to the consideration of specific problem areas which have been identified arising out of the ECJ’s judgements.

At this stage, it is not considered appropriate to tie any amendments to the Working Time Directive to an inter-related approach. Each issue should be considered on its own merits, and if there is suitable justification for any amendments on a particular issue, these should be allowed to proceed independently of other considerations or the a lack of agreement on all issues.

DOI – 04.03.2004

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