The decision rejects the proposal put forward by the European
Commission in September, which would have kept the right of opt-out
while tightening the conditions for its application. Sir Digby
Jones, Director-General of Britain's
CBI
, said it will
allow emerging economies like China and India to "walk all over
us."
Background
The Working Time Directive currently provides that workers in
all sectors, public or private, must not work longer than 48 hours
a week, including overtime. The Directive also specifies
requirements for rest periods, breaks and no less than four weeks'
paid holiday per year. Its aim is to protect workers from the
health and safety consequences of overworking.
In 1993, the
UK
negotiated an opt-out which allows
Member States not to apply the limit to working hours under certain
conditions: prior agreement of the individual; no negative fall-out
from refusing to opt-out; and records kept of working hours of
those that have opted out.
While the
UK
is the only country to have made
extensive use of the opt-out, France, Germany, the Netherlands,
Spain and Luxembourg are preparing or have passed legislation to
make restricted use of the opt-out, in certain sectors.
The opt-out, and in particular the
UK
's use of the
opt-out, was one of the main concerns raised in a Commission report
into the operation of the Directive and led to the Commission
putting forward proposals in September for a new Directive to amend
the existing Directive which would restrict the opt-out.
The vote
Yesterday,
MEP
s voted that the Commission's
proposals did not go far enough. Instead, the Parliament adopted a
report by Spanish
MEP
Alejandro Cercas, calling for
the opt-out to be scrapped after three years, by 345 votes to 264
with 43 abstentions.
The
MEP
s also approved a proposal for all hours
where an employee is "on-call", even the "inactive part", to count
as working time in most cases.
The
MEP
s agreed in general with the Commission's
proposal to extend the reference period over which the average
working week is calculated from four to 12 months, but they
strengthened the conditions. The
MEP
s demanded either
a collective agreement or, in cases where workers are not covered
by collective agreements, a mechanism whereby workers have to be
consulted in an appropriate way and measures have to be taken to
prevent any health and safety risks.
In further amendments to the Commission's text, MEPs decided
that working hours should be organised in such a way as to give
employees the opportunity for life-long learning.
They also wanted to achieve the right balance between
reconciling work and family life and the need for more flexible
organisation of working time. In addition,
MEP
s wanted
to make it clear that the Directive covers workers who have more
than one employment contract.
What's next?
The Commission is due to publish its response to the amendments
by 2nd June, in time for a Council of Ministers' discussion on the
issue on 3rd June. Negotiations over the proposals are expected to
be intense, and the Council of Ministers is not expected to make a
decision on the revised Directive for some time.
The British government is under great pressure to ensure that
the opt-out continues; but its bargaining position has been
weakened by yesterday's large anti-opt-out vote – which included
several Labour MEPs. However there are signs that it may be able to
garner sufficient support from the newer Member States to prevent
the opt-out being scrapped altogether.
Industry's response to the vote
UK
business leaders were united in their
condemnation of the vote yesterday.
Sir Digby Jones, Director-General of the CBI, said:
"The Parliament has just voted to take Europe's economy
backwards. If implemented, this Directive would restrict the
UK
's highly flexible labour market, and undermine the
EU
's declared aim to become the most competitive
economy in the world by 2010. If we allow Britain's economy to
become hidebound in this way, emerging economies like China and
India will walk all over us."
He called on the Government to ensure that the flexibility
engendered by the opt-out continues for the future.
The Chartered Institute of Personnel and Development
(
CIPD
) added its voice in favour of the opt-out,
citing research showing that individual choice is the main driver
behind long hours working.
In its opinion, employer abuse would be better tackled through
increased enforcement and increased awareness on the part of
employees, and Ben Wilmott, Employee Relations Adviser with the
CIPD
, urged the government to promote flexible working
arrangements as a solution to the problem.
"While we don't discount the problems that long hours working
can create, we believe that this is the wrong way to address the
issue," he said.
In contrast, the Trades Union Congress welcomed the vote, with
General Secretary Brendan Barber calling it "a victory for a common
sense compromise on the 48 hour working week."
He explained:
"Today's employer rhetoric about choice fails to convince.
UK
employers have had nearly a decade to implement a
system free of abuse that gave staff a genuinely free choice. But
research shows that less than half the workforce even know they
have a right not to work more than 48 hours a week, and that two
out of three who work more than 48 hours a week have not been asked
to sign an opt-out. Of course some employers rigorously follow the
rules, but these figures show a large number cannot be trusted not
to ignore or abuse the rules."
Robyn McIlroy, an employment specialist with Pinsent Masons, the
law firm behind OUT-LAW.COM, commented:
"While the European Parliament voted yesterday to end the
opt-out, the ultimate decision will rest with the European Council
when it meets in June. Certainly many employers will be concerned
at the prospect of losing the flexibility that the opt-out
provides.
"It has become almost routine in many sectors to request that
employees sign a form agreeing to opt-out of the maximum limit on
working hours and indeed according to a recent survey produced by
the Institute of Directors over 40% of all UK firms have made use
of the opt-out. In addition, research by the
CIPD
shows that over 75% of long hours workers say that they do so as a
result of their own choice.
"The fact is however that far from being pressured by employers
into agreeing to work longer hours, many employees see the benefit
of agreeing to opt-out, particularly in, for example, the
construction industry where they do so in order to earn lucrative
overtime. Removing the opt-out may help in leading the
UK
away from the so called 'long hours culture' but
any measure which restricts the competitiveness of
UK
businesses must also eventually impact on salary levels and
possibly even job security."
