"This proposal will address shortcomings in the present system," said Employment and Social Affairs Commissioner Stavros Dimas, announcing the proposal. "It is a balanced package of measures that protect the health and safety of workers whilst introducing greater flexibility and preserving competitiveness."
If adopted the changes will limit the number of hours to be worked by any one employee to 65 hours per week, even where the opt-out is used.
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 early this year. Figures quoted by the Commission at the time showed that around 16% of the UK workforce works over 48 hours per week – up 1% from the early 1990s.
The report also raised concerns that not all of the opt-out conditions are being met. The Commission pointed out, for example, that workers are frequently asked to sign the opt-out agreement at the same time as signing their employment contract, which acts a constraint to freedom of choice.
Accordingly, in January the Commission began consulting on the best way forward to ensure that its aims – i.e. the protection of the health and safety of employees – are met. It has now set forward its proposals.
The Proposals
According to the Commission, the new measures will allow Member States to retain the right to opt-out of the 48-hour limit provided:
An individual can agree to opt out with his employer directly when, under national legislation or practice, collective bargaining cannot be used to negotiate agreements on working time.
This is particularly the case, says the Commission, where no collective agreement is in force and there is no staff representation at company level that is empowered to conclude such an agreement.
The new measures then place restrictions on the use of the opt-out. These state that:
In a related move, Member States will be able to extend the standard reference period for calculating the average working week of 48 hours from four months to up to one year, provided they consult the two sides of industry. This will give companies greater flexibility and adaptability for the demands of their business, says the Commission.
The proposals also create a new category of on-call time - the "inactive" part of on-call time. This is the time the worker, although available for work at his place of employment, does not carry out his duties. This will not be counted as working time, unless otherwise stipulated by national law or collective agreement.
Finally, the proposal also specifies that compensatory rest would not have to be granted immediately, but within 72 hours.
Emma Slark, an employment law specialist with Masons, the law firm behind OUT-LAW.COM, commented:
"It will be a relief to many private and public sector employers that the UK can retain the opt-out in relation to the restrictions on working more than a 48 hour week. Many employers had predicted that the loss of the opt-out would have a substantial impact on their turnover which would, in the long term, result in a loss of jobs and/or lower wages.
"Most will agree however, that there is a fine balance to be struck between maintaining commercial competitiveness in the UK and protecting the health and safety and work/life balance of workers.
"The Commission's proposals provide some additional protection for workers but should not in real terms impact on the profitability of their employers. Nevertheless, it is anticipated that the Commission's failure to remove the opt-out altogether will be received with disappointment in some quarters."
TUC General Secretary Brendan Barber called the proposals "disappointing" and said they will satisfy no one. "These limited reforms show that the Commission has failed to grasp the scale of the UK's long hours culture and the damage it is doing to our workforce and economy," he said. "British bosses will still be able to rely on pressuring staff to work long hours instead of adopting safe, efficient and productive working practices."
The proposals will not become part of EU law until they have been approved by the Council of Ministers and the European Parliament.
At the time of writing the text of the proposals was not yet available, but should be found at Frequently Asked Questions on the Directive and the new proposals
.