Brussels, 17/12/2008 (Agence Europe) - In Strasbourg on 17 December, the European Parliament, by absolute majority, adopted the common position on the working time directive as amended by the EP employment and social affairs committee, thereby confirming the deep differences between it and the Council on this issue, particularly with regard to the opt-out clause and on-call time (see EUROPE 9805). Wednesday's vote, therefore, brings the prospect of what is sure to be a difficult conciliation procedure. The French Presidency was to inform the Employment, Social Policy and Health Council, meeting in Brussels on the same day, of the outcome of the second reading vote in the European Parliament.
The main points of discord that the Parliament and Council must now try to resolve are:
Opt-out clause. The Council common position of 15 September states that the working week in the EU must be limited to 48 hours maximum, unless a member state introduces an opt-out clause and workers decide to use that clause. For workers who opt for the derogation, the text lays down a maximum of 60 hours of work per week on average over a 3-month period. This can be increased to 65 hours a week on average over three months where there is no collective bargaining agreement and where the inactive period of on-call time is regarded as working time (see below). The text also sets out a series of conditions for workers using the opt-out clause. Parliament, however, re-affirmed its first reading position, which called for the opt-out clause to be scrapped within three years of the revised directive coming into force. Belgium holds a position that is close to the Parliament's: it is against the opt-out clause championed by the United Kingdom. Most MEPs felt that extending the reference period for calculating weekly working hours to twelve months would allow work to be organised flexibly. The Council common position also takes the reference period to one year, but only after consultation with the social partners. Furthermore, the maximum reference period would be six months in member states which decide not to make use of the opt-out clause.
On-call time. The Council and Commission introduced the ideas of “active” on-call time, that is, a period during which a worker must be available at the workplace in order to be able to work when required by an employer, and “inactive” on-call time, when the worker is on call but is not required by his/her employer to work. In the common position, the Council says that inactive on-call time should not count as working time unless otherwise decided by national law or by agreement between employers' and employees' representatives in accordance with national law. Parliament, on the other hand, says that inactive on-call time should be considered to be working time. However, it considers that inactive on-call time may be calculated in a specific way for the purposes of complying with maximum weekly average working time. Belgium, which abstained in the vote on the common position, shares the EP's position that all on-call time, including inactive periods, must be considered as working time. The Court of Justice, in December 2005, found against the French system of “equivalence periods”, which did not take account of some periods of inactivity. The Council of State thereafter repealed the decree in question. Working time, even inactive, is, then, counted as part of working time in France.
Time off in lieu. The general principle here is that workers should be given time off in lieu when normal rest periods cannot be taken. The Council's common position states that “it shall be up to member states to determine the length of a 'reasonable period'” within which time off in lieu is to be granted. The EP says that time off in lieu must be given “following periods of time spent on duty”, in accordance with the relevant law or an agreement between the two sides of industry.
Work-life balance. The Council agreed to the first reading amendments brought by the Parliament on the need to find a better work-life balance. Parliament, however, made further demands in second reading. (O.L./transl.rt)