Parliament gives Working Time opt-outs the red card

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The European Parliament yesterday (17 December) voted to scrap national opt-outs to the Working Time Directive and enforce an EU-wide maximum working week of 48 hours, in open defiance of a group of member states led by the UK.

Yesterday’s second-reading vote, passed with an absolute majority of 421 votes to 273, means that the long-running debacle over the European Working Time Directive is set to continue. 

The chairman of the European Parliament’s employment committee, Swedish Socialist MEP Jan Andersson, told EURACTIV that the vote entailed “very positive things” for both the Parliament and European workers. 

“We have to phase out these opt-outs,” Andersson said. “This decision is good for the health of European workers [and] good for equality between men and women, and I think that in the current economic situation – where many workers have lost their jobs and even more will follow – it will ensure that some people don’t end up working 65 hours a week while others have no job at all.” 

The foundations for yesterday’s vote were laid in October when the employment committee, in a first-reading vote, chose to eliminate opt-outs from the agreed EU-wide 48-hour working week. 

The Parliament’s position also stipulates that any period of on-call time, including inactive time, must count as working time, whereas governments and the European Commission favour the concept of “active” on-call time (a period during which the worker must be available at the workplace in order to work when required by the employer) and “inactive” on-call time (a period when the worker is on call but is not required by his employer to work). 

In response, national governments and the Commission maintained their position that certain opt-outs should be allowed. 

Working Time Directive: Polarising Europe since 1993 

The debate over EU rules on working hours has been provoking controversy and entrenched political polarisation in the EU since the first directive was adopted in 1993. The latest round of votes and negotiations is no exception. 

Those opposing the opt-out argue that it will lead to social dumping and will harm health and safety at work, as well as people’s ability to reconcile work and family life. Spanish Socialist MEP Alejandro Cercas, who drafted the report on which the Parliament voted yesterday, said the vote safeguarded the concept of “working to live and not living to work,” adding: “We cannot go backwards.” 

In the opposing camp, those favouring the opt-out argue that it increases flexibility in labour markets, particularly in difficult economic times. Business federations, in particular, have long argued that the opt-out is an important tool for companies to deal with fluctuations in demand. 

Open Europe, a London-based think tank, estimates that ending the opt-out could cost the UK economy between £47.74 billion and £66.45 billion by 2020. 

The organisation’s research director Mats Persson argued that MEPs had made “the worst possible decision at the worst possible time”. 

“Ending the opt-out,” claimed Persson, “would strip both workers and firms of vital flexibility. The European Parliament seems hell-bent on crippling Europe’s economy even at a time of recession”. 

UK divided 

Of all EU member states, the UK remains the most prominent in this debate. The opt-out to the 48-hour week rule was, of course, originally inserted at the behest of the British government and has attracted the support of successive UK administrations. 

It is expected that UK Prime Minister Gordon Brown will not back down on the opt-out issue, despite the intriguing fact that a majority of Labour MEPs voted against their prime minister in yesterday’s vote. 

“I think it’s absolutely incredible that the UK government can’t get Labour MEPs to support it,” British liberal MEP Elizabeth Lynne told EURACTIV. 

Lynne, herself a vice-chairperson of the Parliament’s employment committee, also supports the opt-out and said she had worked with labour ministers and officials to try and persuade Labour MEPs to support it, but “could not get them on board”. “They tend to take the European Socialist line on these matters rather than their own government’s line.” 

Nevertheless, UK Minister for Employment Relations Pat McFadden said the vote was “not the end of the story”. “This is the latest step in a complex negotiation between the European Parliament and the Member States, and the UK Government will continue to defend the opt-out in the next phase,” he added. 

Last chance saloon: What happens next? 

The directive will now go to a conciliation committee, the ‘last-chance saloon’ of Council-Parliament negotiations. However, the Parliament enters negotiations from a position of strength. “We are ready for negotiations with the Council,” Jan Andersson told EURACTIV, “and our starting point is that we want to end the opt-out”. 

However, all indications are that member states will not budge. Elizabeth Lynne told EURACTIV that “if the Council holds firm as I believe it will, then the Parliament would have to give way on the opt-out”.

Lynne believes a compromise might see national governments accept the Parliament’s position on “on-call time being classed as working time.” 

But there are no guarantees such a compromise will be found. In the wake of the vote, Commissioner Vladimír Špidla reminded MEPs that “no changes can be made to the existing Working Time Directive unless there is an agreement between the European Parliament and the Council”. In effect, this means that should the conciliation process fail, the current directive with its present opt-outs will remain in place. 

Gary Titley, leader of Labour’s MEPs, spoke to the BBC of his belief that the two sides were so far apart on the issue that the talks would probably end in stalemate and the opt-out would continue. 

The issue is expected to be addressed by a conciliation committee in early 2009. 

Accepting that finding a compromise would be a difficult task, Vladimír Spidla, the EU commissioner responsible for employment and social affairs, said: "The position of the EP and Council are clearly different. It will not be easy to reach an agreement and we don't have much time this parliamentary term. It will be difficult to make changes to the compromise." "The Commission is willing to play the role of arbitrator," he concluded. 

In the European Parliament, Portuguese MEP Silva Peneda, speaking for the centre-right EPP-ED Group, argued that the opt-out had "nothing to do with labour market flexibility". 

"The key issue: do we want Europe's workers to do more than 48 hours per week?," he asked. 

Explaining the differences between the Parliament and member states on the issue of what constitutes "on-call time," Swedish Socialist MEP Jan Andersson said "the Council is saying that on-call time is time off. We say that if you've left the house, you're working". 

Regarding the opt-out, he insisted that it could not be voluntary "in today's jobs market". He added: "What about equal opportunities? Who is working a 60-65 hour week? It's men who have women looking after the home. That's why women support the directive." 

In the UK, Open Europe's research director Mats Persson said: "The UK government assured us the opt-out was safe following concessions it made on new burdensome EU regulations for temporary work. If the government now fails to secure the opt-out following today's vote, this would be a major failure for the government's negotiating strategy in Europe." 

By contrast, UK Green MEP Jean Lambert said: "I am delighted that the Parliament has taken a clear position in favour of workers' rights. Despite intense lobbying from some governments and businesses, MEPs have stood firm and supported workers, who are too often left open to exploitation." 

"Working time rules are designed first and foremost to protect the health and safety of workers and those around them. There are many serious health issues related to our long-hours culture including stress, anxiety and depression, as well as cardiovascular disease, diabetes and insomnia. Now all workers will have the right to enjoy a healthier work-life balance." 

Tina Sommer, president of the European Small Business Alliance (ESBA), expressed "serious concern" over the Parliament's decision to prevent people from working for as long as they want. ESBA described MEPs' decision on the Working Time Directive as a further restriction of how businesses are run. 

Sommer concluded that "the European Parliament's decision is a serious blow to small businesses and a further burden that small firms just don't need at this difficult time. ESBA calls on the responsible parties to reach an agreement in conciliation which will eliminate the burdens for SMEs caused by the directive in its current amended form". 

Eurochambres, the Association of European Chambers of Commerce and Industry, took a similar line, arguing that "the European Parliament has taken a disastrous decision for European business". 

In a press release, the association claimed that "the deletion of the 'opt-out' provision from the rule of the maximum working time of 48 hours per week will damage businesses' flexibility and capacity to react to fluctuations in demand. This is particularly counter-productive in the light of the economic crisis". 

"In addition, considering inactive on-call time as paid working time will hamper the effective provision of key public services across the EU, as well as having negative consequences on a number of private sectors. This will also put pressure on financing and lead to severe problems of work organisation in some work places." 

On the other side of the divide, John Monks, general secretary of the European Trade Union Confederation (ETUC), said: "This very welcome decision by the European Parliament completes a very good week for all workers of the EU. We have equality for temporary agency workers. We have stronger European Works Councils to help workers through the recession. Now, we have defeated moves to make it easier for bad employers to impose excessive working hours. Obviously the economic situation is very worrying, but these three steps have shown that Social Europe is alive and well." 

Working time has been a long-standing issue at EU level. The 1993 Working Time Directive  stipulates that workers must not work more than an average of 48 hours a week (calculated over any four-month period), although it allows for broad derogations. 

However, the text needed to be revised following a number of European Court of Justice rulings. The European Commission presented its proposal for a revised directive back in May 2004, but member states only managed to reach a compromise on the issue in June 2008. 

The current deal limits workers to a weekly maximum of 48 hours, but allows social partners to find 'flexible arrangements' if granted approval by the employer. 

The insertion of this clause, under which workers could effectively put in up to 60-65 hours per week, was one of the UK government's main demands, while Spain and other nations lobbied heavily against it. 

The European Parliament's employment committee rejected the compromise at first reading on 20 October (EURACTIV 21/10/08), demanding that opt-outs must lapse three years after the directive's entry into force. This position, which upholds the 48-hour working week and recommends the abolition of all exceptions, was on 17 December upheld by an absolute majority in the European Parliament. 

  • Early 2009: Working Time Directive to be addressed by a conciliation committee.

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