However, the conditions attached to the retention of the individual opt out, although not as onerous as had been previously suggested by some Member States, are still quite stringent. These include:-
- Preventing individual opt out agreements being signed by workers
during their first four weeks of employment (there is an agreed exemption to this restriction for short-term workers – see below).
- Providing for a ‘cooling-off’ period of 6 months after a worker has signed an opt out agreement so that, during this time, he/she can withdraw from the opt out without having to give notice. Thereafter, the employer can require the worker to give a period of notice in writing before withdrawing from the agreement. This period of notice cannot exceed two months.
- Restricting maximum working hours over a period of seven days, even where there is a valid opt out agreement, to 60 hours calculated as an average over a period of three months, unless otherwise provided for in a collective agreement or an agreement between the social partners. (In certain specific circumstances, detailed in the revised Directive, the maximum is raised to 65 hours per week).
There is however a helpful exemption for employers employing workers on short-term contracts. The revised Directive states that both the prohibition on signing an individual opt out agreement during the first four weeks of employment and the maximum weekly hours (60 or 65 per week) will not apply where the a worker is employed by the same employer for a period, or periods, not exceeding a total of 10 weeks over a 12 month period.
The revised Directive also requires Member States to report to the Commission every five years on the practical implications of the Directive and, 4 years after it has been agreed, to report on how they have used the individual opt out provisions. However, it contains no provision for a gradual phasing out of the individual opt out for which some Member States had pushed..
Next steps
The revised Working Time Directive will now be discussed by the European Parliament for its Second Reading. This is unlikely to happen before Autumn 2008. EEF will continue to lobby to try to ensure that any amendments to the text of the revised Directive that are proposed by MEPs do not undermine business flexibility or increase costs/administrative burdens. However, it is clear that there is likely to be considerable pressure from the European Parliament to phase out the individual opt out and/or toughen the conditions attached to its use.