Working time showdown


Labour ministers are likely to spend the whole day and better part of the night at the negotiating table as they convene in Brussels to discuss the disputed Working Time Directive.

At the 7 November Council, the UK will be faced with a host of opponents of the UK opt-out, namely France, Italy, Spain and Poland. Germany, which will hold the next EU Presidency, has taken a conciliatory position, pledging not to vote down any of the big member states.

French Prime Minister Dominique de Villepin told the media that after a consultation between him and President Jacques Chirac, the two French leaders had decided not to accept any proposal that does not foresee a clear timeline for phasing out the opt-out. If applied strictly, this would mean that France, currently in a pre-election mood, is not ready to even discuss the Finnish poposal. 

The UK government called the Finnish proposal “a step forward”, adding that the proposal “still needs work”. In particular, the UK is unhappy about the following points: 

  • The proposed 60-hour cap. British officials say that the cap is too low and that, at the best, a 65 hours weekly cap could be negotiated; 
  • the extended reference period of twelve months, which the British consider too short, and; 
  • a perceived lack of legal certainty – the UK is afraid that single workers managing to prove that opt-out is not justified in their case might lead to an end of the British opt-out. British officials have also expressed concern over the use of Commission criteria when evaluating the necessity of an opt-out. 

While the UK might settle for a compromise taking these concerns into account, officials also admit that “selling [such a deal] to the Parliament will become extremely hard”. 

The European Trade Union Confederation voiced concerns to the opposite extent. In a letter to Finnish Labour Minister Tarja Filatov, ETUC General Secretary John Monks urged, along the same lines as Villepin, a “clear indication” as to when the opt-out will end. Monks criticised insufficient safeguards against undue pressure on workers to accept longer working times. He also argued against longer reference periods: “It has to be understood that the longer the reference period, the more the worker can be confronted with very long and irregular hours per week.”

Monks said: “In summary, the ETUC is disappointed that the current set of proposals falls short of a proper balance between flexibility and security and is therefore not offering citizens and workers in Europe an acceptable and sustainable deal on modernisation and innovation of the organisation of working time.” 

The UK Trade Union Congress (TUC) published figures on 7 November 2006 indicating that, in spite of the UK opt-out, working long hours is on the decline in the UK. The report, which is based on figures from the UK governement’s unpublished Labour Force Survey, says that: 

  • The number of UK employees working more than 48 hours has declined by 17.5 per cent since the 1998 peak of 4.0 million. 700,000 fewer employees are now working long hours.
  • The incidence of long hours workers has declined in every industry, occupation and region, although the pattern of improvement is very uneven, with some sectors doing much better than others.
  • Because of the growth of some jobs and industries there are more long hours workers in some of them, but even here the proportion doing long hours has fallen.
  • Starting from a higher baseline, the decline of long hours working has been much sharper in the private sector. 

Ending the opt-out will have little economic impact, not just because fewer people now work very long hours, but also because:

  • A third of UK employees who work more than 48 hours per week are only working one or two extra hours per week;
  • Up to a million UK employees would continue to be exempt from the 48-hour limit. These are mostly ‘autonomous workers’ – largely senior managers and professionals who genuinely control their own hours;
  • If the opt-out ends then it is certain that the deal reached by EU ministers will include increasing the period for averaging the 48-hour limit from 17 weeks to 52 weeks. This would exclude about 1.5 million UK long hours workers from the coverage of the 48-hour week, since they do not sustain their excessive working time over the full year. 



22 out of 25 member states are, according to the Commission, not applying the directive correctly. 

The European Court of Justice (ECJ) has ruled that, under the present rules, on-call time in the medical professions must be considered working time. Transposing the ruling would cost member states large amounts of money. UK officials say that annual costs incurred in the UK would amount to 250 million pounds sterling.

The UK has made use of an opt-out possibility introduced when the directive was adopted in 1996. Under the scheme, the UK has not transposed the EU law limiting weekly working time to an average of 48 hours over a period of six months. Other member states, most notably France, claim that the UK opt-out undermines the basic principles of the directive and is contrary to internal market rules. 

The Finnish Presidency pledged to resolve the issue during its term. For 7 November 2006, it convened a special meeting of the Employment Council to discuss the Working Time Directive only. Three weeks prior to the meeting, the Presidency presented a compromise proposal along the following lines: 

  • Laying down the aim of phasing out the possibility of a national opt-out;
  • a 60-hour cap that could not be opted out of, to compliment the 48-hour cap;
  • a possibility for longer reference periods up to a year, beyond the six months in the present directive;
  • a choice for member states to either opt out of the 48-hour working time cap or to have longer reference periods, but not both;
  • softer rules on on-call time to deal with the rulings of the Court of Justice;
  • member states opting out of the 48-hour cap to provide evidence for the necessity of that decision and that all other forms of flexibility have been sufficiently used, and; 
  • member states to ensure that no pressure is exercised on individual workers to opt out of the directive against their will and that special attention is paid to the health and safety of those workers. 

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