What the EU has agreed on working time

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Date: June 2008

Yesterday the EU Social Affairs Council (SAC), which includes BERR Secretary of State John Hutton, agreed a text for the revision of the Working Time Directive.

In the TUC's view, the SAC position is a very mixed bag. We are disappointed that it retains individual opt-outs from the 48 hour limit on average weekly working time, and we are worried that a new exemption for people who work for less than ten weeks for an employer will lead to abuse of vulnerable workers. But there are also advances. It sets a cap of an average of 60 hours for those who have opted out, and sets new conditions on the use of the opt-out. Workers will not be able to sign away their rights in the first month and the opt-out will need to be renewed each year.
The UK government failed make the opt-out permanent, and there will be further reviews in the future.

Not the last word

But the outcome of yesterday's council of ministers is not necessarily the final decision. This SAC agreement was only the 'first reading'. In EU law, the EU Commission first proposes the text for the review of the WTD. This then goes to the the European Parliament (EP) and the relevant council of ministers - in this case the SAC. The EP will now consider the decisions of the Council in a second reading, and may make amendments. These will then be considered by a further meeting of Social Affairs Council. As it is unlikely that the EP and the SAC will completely agree, this will be followed by mediation by the Commission to settle the differences.
This could take us into 2009. And even when agreed, it will not pass into EU law for a further three years so changes stemming from the final agreement may not apply until 2012.

What was agreed

• The UK 'individual opt-out' remains. All workers are allowed to opt-out of the 48 hour average limit on weekly working time, which is usually calculated over a 17 week period. The TUC believes that the opt-outs should end, as it cannot be right that workers can opt-out of health and safety law. The TUC is also very concerned that many employers put pressure on their workers to opt-out, so the choice is not a free one.
• The SAC agreed that those who opt-out from the 48 hour limit will be subject to a new 60 hour cap averaged over 3 months
• The provisions from the SIMAP and Jaeger European Court of Justice (ECJ) rulings that all on-call time counted as working time are greatly weakened. The SAC proposed that the 'inactive' part of on-call time spent on the employer's premises should only count towards the working time limits if member states or the relevant social partners agree. The chances of such an agreement are not good in the UK. This could be very bad news for some as in the past some workers have been tied to the employer's premises for more than 100 hours per week by on-call provisions in their contracts of employment. Defining the difference between inactive and active on-call time will be extremely difficult in practice.
• Another new provision is that the opt-out will not be allowed to be signed before the contract commences or during the first 4 weeks of contract. This will help to deal with the common practice of employers asking workers to opt-out of the 48 hour limit before they start work, which is a time when many workers feel reluctant to say 'no'.
• At the moment employers can insist on workers giving 3 months notice to cancel their opt-outs and opt back into the 48 hour limit. The SAC proposals stipulate that workers can opt-in with no notice during first 6 months of contract or 3 months after their probation period finishes, whichever is the longer.
• The maximum notice for opting back in will thereafter be 2 months instead of the current 3 months.
• Any opt-out agreement cannot run longer than a year without renewal. The need to renew the opt-outs on an annual basis could give unions a useful peg on which to negotiate improvements to working time, and give employees more confidence to opt out once they have worked for more than a year for the same employer as they then have stronger rights against unfair dismissal.
• Employers will now have to keep records of the hours worked by opted-out workers.
• The most dangerous proposal from the SAC is that the 48 hour or 60 hour limit should not apply to workers employed by same company for 10 weeks or less in any single year. This puts the most vulnerable workers at greater risk.
• The SAC also proposed that all workers have right to be told about changes to their working patterns in good time. This would be a very useful innovation that could make a significant contribution to work-life balance
• Early reports that the SAC agreed that all workers should have the right to ask for changes to working patterns proved incorrect. A much weaker provision: 'Taking into account workers' needs for flexibility in their working hours and patterns, the Member States shall, in accordance with national practices, also encourage employers to examine requests for changes to such working hours and patterns, subject to business needs and to both employers' and workers' needs for flexibility' was agreed.
• There will be a further review 4 years after the implementation of any changes from the current review (likely to be 2016).

What the European Parliament has said

The EP last discussed changes to the Working Time Directive in 2005. They called for:

• an end to the UK opt-outs by 2010;
• tighter conditions on its use in the meantime;
• concessions to employers on the Simap and Jaeger ECJ on-call judgements;
• grant employers an automatic one year reference period for calculating 48 hours week but only in exchange for the end of the opt-out;
• all workers to have the right to be told about changes to their working patterns in good time;
• all workers to have the right to ask for changes to working patterns and employers must take requests seriously;

The main disagreement between the EP and the SAC is still the future of the opt-out. It is always dangerous to try to predict the future, but at the very least the EP is likely to insist that the conditions on the use of the opt-out are tightened still further.

One other important point is that the UK enforcement regime for the WTD is very weak. The TUC will continue to argue for stronger enforcement, including a right to take 48 hour limit cases to employment tribunal.

End

Contact: Rose Conroy, GMB Press Officer on 07974 251823 or Steve Pryle, GMB

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