Working Time directive to be discussed by council of ministers - 6/11/2006

link to The Times
Will working time deadlock be broken?
Gabriella Pace

The right of workers to opt out of the 48-hour weekly average working time rule has once again made the headlines. Today, EU ministers responsible for employment affairs will be meeting in Brussels to discuss the compromise text unveiled by the Finnish Presidency in Lahti, in the hope that the long-term deadlock that has existed over this issue will be broken.

The much-discussed Working Time Directive currently provides that employees cannot work more than an average of 48 hours per week calculated over a reference period of four months - unless they agree to longer hours under an opt-out arrangement which was negotiated and secured by the UK in the early 1990s. When the Working Time Directive was still being discussed and in embryonic form, the maximum hours requirement was of particular concern to the UK since working hours there were then the longest in the member states. In 1992, nearly half of the seven million male workers in the EU working 48 hours or more a week were employed in the UK. The opt-out provision was therefore primarily designed to give the UK the opportunity to bring its working time practices more in line with those prevailing in other EU member states over a 10-year period. The proposed Finnish plan would allow Britain and other countries that have transposed the contents of the opt-out into their domestic employment legislation, including Malta, to keep the opt-out but under stricter conditions.

Finland is the fifth Presidency in a row that is trying to reach a deal on the directive. MEPs had voted to phase out the opt-out by 2010; however, EU employment ministers have opposed this and talks have continued. To date the UK, Malta and some other member states, which include many of the EU-10, have resisted attempts to remove the opt-out, while states like France and Sweden continue to press for it to be scrapped.

The new Finnish compromise proposes that countries could keep the opt-out under more rigid conditions for the reference period, so that employees could work a maximum of 60 hours a week, averaged over a period of three months. It appears that Malta, the UK and some other member states will continue to oppose the phasing out of the opt-out.

The need for agreement on the dossier has become all the more urgent following three important rulings by the European Court of Justice. In the cases of SIMAP, Jaeger and Pfeiffer, the court confirmed that "on-call working time" - that is, when the employee must be available in the workplace, - should be defined as working time for the purposes of the directive and should therefore count towards the 48-hour limit. Compensatory rest time must be available immediately after the working period. Some member states have resisted these judgements and used them as a pretext for applying the opt-out, especially in the health sector, to doctors working on call in hospitals for example.

With a large majority of EU countries currently excluding on-call time from the 48-hour limit, these rulings could have potential repercussions throughout the EU if ministers fail to reach agreement. France, which has led the opposition to the UK's opt-out, is likely to be one of the hardest hit by the court's decision. This might perhaps give hope that participants in today's Council meeting may be in a better mood for a flexible approach than they were the last time the dossier was discussed, under the Austrian Presidency.

Greater flexibility in the organisation of working time would meet the need of both employers and employees. Legislation on working time has a strong influence on the way companies organise production or, perhaps, the allocation of duties, so flexibility in this respect is essential for their competitiveness. The possibility of resorting to the opt-out is of the very essence to the smooth running of certain activities requiring adaptation to fluctuations in demand, whether seasonal or irregular.

In the case of employees, greater flexibility can meet their needs to reconcile work and family responsibilities. It is also important that, following the review, the Working Time Directive continues to give workers the necessary level of health and safety protection.

Indeed, a very fine balance needs to be struck.

Dr Pace is chief executive of Forum Malta fl-Ewropa.

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