Brussels, 22/09/2004 (Agence Europe) - On Wednesday after a long battle, the European Commission adopted a new directive responding to the problems raised by application of the 1993 directive on certain aspects of the working time directive. This new draft aims to protect the health and safety of workers by protecting them against the effects of excessive working hours and work regimes but introduces greater flexibility and competitiveness. This allows for greater compatibility between professional and family life and avoids impossible constraints being imposed on companies, notably SMEs. Very lively discussions took place at the College, which focused on an absolute limit of 65 working hours a week through the draft amendment of the directive and involving social partners in the opt-outs (the possibility to extend the reference period for calculating the 48-hour maximum working week, which the British are keen to keep). Reservations were lifted from some quarters and the Commission adopted its compromise text, which will be submitted to the Employment and Social Policies Council on 4 October in Luxembourg and then to the European Parliament (EUROPE 15 September p 14).
Contents of the amended draft directive of 1993
The new proposal lays down that, "Member States have to take the measures necessary for encouraging collective bargaining on the question of compatibility between professional and family life, in respect of national traditions and practices and the autonomy of social partners". It also explains that "for the application of the maximum working week, the reference period does not exceed 4 months. Nevertheless, Member States can, for objective or technical reasons, or for work related reasons, extend this period to a year, under reserve and in respect of the health and safety of the workers and under reserve of a consultation between interested social partners and efforts to encourage all forms of relevant social dialogue, including concertation if the parties so wish". The Commission adds that "when the length of a work contract is less than a year, the reference period cannot in any situation be higher than the length of the work contract". In the context of the opt-out, the Commission is calling on Member States that want to use it "to take necessary measures for ensuring that: a) no employer can ask a worker to work more than 48 hours in a seven day week, unless he has obtained in writing the agreement of the worker to carry out such work. The validity of such an agreement can not go above a year, on a renewable basis. An agreement granted during the signing of an individual working contract or during any probationary period will be null and void; b) no worker should suffer discrimination for not wanting to give his agreement to carrying out such work; c) no worker can work more than 65 hours a week". The Commission defines "on call" as "the period in which the worker, without having to permanently exercise his activity, is compelled to be available to work at the employer's request, to exercise his activity or functions" and the "inactive period of being on call…the period in which the worker on call is not subsequently called on to work by his employer". This period will not be counted as working time, at least not in the national legislation where a collective agreement is not otherwise included. The proposal also outlines that the proposal also specifies that compensatory rest would not have to be granted immediately, but within 72 hours.
Addressing the press on Wednesday Employment and Social Affairs Commissioner Stavros Dimas said that it "is a balanced package of measures that protect the health and safety of workers whilst introducing greater flexibility and preserving competitiveness." Dimas added that they were using the elements of dialogue better with social partners. The Commissioner was aware that the proposal would provoke, due to its media profile, negative reactions from both bosses and unions. In connection with the opt-out, Dimas recognised that there were certain "shifts" but provided assurances that the Commission had sought to put into place sufficient safeguard measures that would allow it to be maintained. The Commissioner is hoping that the proposal will now receive the approval of the Council and EP.
Results of second phase of consultation with European social partners
It is recalled that the Commission has on two occasions consulted European social partners on review of the 1993 directive. The Commission had invited them to enter into negotiations on this sensitive issue (opinions differed greatly with the European employers granting greater importance to working hour flexibility, and European trade unions considering the text proposed was too much in favour of employers: see EUROPE of 26 May, p.13) but social partners refused and called on the Commission to present a proposal of directive, as it has done today. It must also be recalled that some Member States, like the United Kingdom and Poland, have given the Commission a hard time for political reasons, Antonia Mochan, Spokesperson for Commissioner Dimas, stressed.
Reaction of social partners
UNICE: The European employers consider, with figures in hand, that the proposals would put Europe at a disadvantage compared to the United States and Japan in terms of productivity. In Europe, workers provide 60 hours less on average than in the United States and 230 hours less than in Japan per year. According to UNICE, any initiative allowing for a further reduction in working hours must therefore be avoided. "Flexibility of working time is crucial to implement the Lisbon strategy. It is necessary for companies' competitiveness and in the interest of workers also", stated UNICE Secretary General Philippe de Buck. European employers consider the Commission should have fixed the reference period at 12 months instead of leaving it at 4 months with the possibility for Member States to extend it to 12 months at most. As far as the opt out is concerned, it would be necessary to allow companies to retain the possibility of individual opt outs, and not just foresee explicit opt-outs by means of collective agreements. "Unfortunately, the Commission proposals fall short of meeting our requirements. Moreover, the text is unnecessarily complicated", Philippe de Buck says in conclusion.
UEAPME: The European Association of Craft, Small and Medium-Sized Enterprises considers the proposal is not satisfactory as changes made to the Directive make the framework more rigid for companies that, on the contrary, need greater flexibility. UEAPME General Secretary Hans-Werner Müller deplores the fact that working time is one of the rare variables that allow SMEs to improve their productivity and rapidly adjust to new risks and opportunities. By placing this in a more rigid framework, the Commission, he said, has missed an opportunity to show European companies that it supports their need for greater flexibility. UEAPME mainly fears that the obligation to take on opt out by collective agreement or an agreement with social partners before individual consent could reduce the possibilities open to some SMEs. Those which are covered by a collective agreement might not have the possibility to derogate. UEAPME considers derogation should be possible not only by individual consent by also by collective agreement. SMEs also regret that the reference period has been extended from 4 to 12 months is not being taken as the general rule as 12 months responds to the "current practice of most small businesses concerning annual management of working time".
ETUC: The European Trade Union Confederation is displeased also but for other reasons. It considers that the Commission's proposals are "in clear contradiction to its obligations under EU treaties, notably to improve living and working conditions, and ensuring that improvements will be maintained". ETUC considers the proposals "go back to old-fashioned methods". "I am very disappointed by the Commission", John Monks, ETUC General Secretary admits, considering that the European Executive has largely given way to pressure from certain Member States and employers "lobbies" which, in the context of opt-out, may now extend the reference period to twelve months, "practically ending protection for on-call workers". ETUC therefore calls for the whole proposal to be rejected and restates its demands which are to: gradually eliminate all form of individual opt out and, at the same time, toughen the conditions for individual opt out; maintain the existing guarantees concerning flexibility of the 48-hour working week; and propose balanced solutions for time maintained.