The Directive has been stalled in the Council of Ministers for a number of years. Progress has been blocked by two opposing groups of Member States, each of which has enough votes under Qualified Majority Voting to form a ‘blocking minority’.
One group of countries – led by the UK – is in favour of retaining the individual opt out; the other group, including France and Spain, would like to see it phased out.
In what is a complex and ever-changing issue, the main issues are:
· The individual opt out. The Commission’s revised proposal suggested that the individual opt out would be retained in the Directive but with a number of onerous conditions attached to its use, including imposing a maximum number of hours that can be worked in any week.
It also included provisions for the use of the individual opt out to be monitored and reviewed by the Commission after a few years which could then have led to pressure for it then to be phased out. The European Parliament went further and voted at 1st Reading to phase out the individual opt out altogether.
· Reference periods. Until now there had been agreement by all Member States that, in future, the 48-hour working week should be automatically averaged over 52 weeks rather than, as now, 17 weeks (although EEF is concerned about the conditions that could be attached to this provision).
However, the most recent attempt to find a compromise, by the Portuguese Presidency, suggested that, if Member States made use of the opt out, they would not be able to use the 52 weeks reference period and would only be able to average working time over a maximum of 26 weeks.
· ‘On-call’ working time. Although less relevant to EEF, this issue is significant because many Member States want a deal reached on the Directive in order to negate the effects of European Court of Justice (ECJ) rulings on what counts as ‘on-call’ time.
In the SIMAP and Jaeger rulings, the ECJ stated that all time spent ‘on-call’ at the place of work, even if that time is ‘inactive’, should be classed as ‘working time’.
If properly enforced, this could have a major impact on the cost of running health services across the EU, where it is often common practice for doctors to stay in hospitals ‘on-call’, even though they are not actually working.
It is believed that more than 20 Member States are currently in breach of these rulings and the Commission has started to use the threat of legal action against them as a lever to encourage the Council to reach agreement.
Unfortunately, after a long hiatus, a deal moved a step closer at the Employment Council on 5 December 2007. In the run up to the Council, it was rumoured that the Portuguese Presidency was offering a compromise “deal” on working time (including maintaining the individual opt out), in return for the UK and other countries dropping their opposition to the Temporary Agency Workers Directive.
With many Member States now desperate to resolve problems created by the SIMAP/Jaeger rulings, it was felt that this deal, plus a change of government in Poland, could have undermined support for the UK’s position on the Temporary Agency Workers Directive.
Following extensive lobbying by EEF and other business organisations, this proposal was not put to the vote but it is likely to be put back on the table for discussion under either the Slovenian or French Presidencies during 2008
EEF is concerned that this compromise “deal” could see the UK being forced to make concessions on one proposal in return for gains on the other. For example, the UK could be asked to drop its call for a longer agency worker qualifying period in return for maintaining the individual opt out.
We believe that it is a mistake to link what are two separate issues, a view that we have recently persuaded our sister organisations in other Member States to support, and we are urging the government not to make concessions which could damage the flexibility of the UK’s labour market.