The Member States of the European Union have once again failed to reach agreement on proposals to implement a revised Working Time Directive, this time at a meeting of the Employment, Social Policy, Health and Consumer Affairs Council (“ESPHCA”) chaired by Alan Johnson, the Secretary of State for The Department of Trade and Industry, in Brussels on 8-9 December 2005.
The main stumbling block to agreement was, as expected, the provision enabling Member States to permit individual workers within their territories to ‘opt out’ of the maximum 48-hour working week. The ‘opt out’, which is currently utilised by the UK Government amongst others, can be removed by a qualified majority vote of the Member States. However, it will remain in place so long as the Member States remain deadlocked.
In a bid to reach a political agreement, the UK Government tabled a compromise proposal that would have seen the individual worker’s right to ‘opt out’ gradually phased out and ‘opting out’ become the exceptional rather than the norm. However, the ESPHCA was unable to agree on whether a date for the eventual removal of the ‘opt out’ should be specified in the revised Working Time Directive.
There was discussion and disagreement as to whether the maximum working week limit should apply to a worker’s aggregate working time if he/she works under more than one contract of employment and/or for more than one employer and, if the ‘opt out’ were maintained, whether there should be an absolute limit of 65 hours on the working week, calculated over a 3 month reference period.
A number of Member States were keen to reach agreement on the revised Working Time Directive amid fears of legal challenges by workers- in particular those in the health and security sectors- in the light of the judgments of the European Court of Justice in SIMAP (2000) and Jaeger (2003) that time spent ‘on call’ in the workplace should be classified as working time. Many Member States have not, largely because of the costs involved in recruiting sufficient staff, amended their national legislation to comply with the jurisprudence of the European Court of Justice in this area. Although the ESPHCA was apparently broadly in agreement with the European Commission’s proposal that only ‘active’ time spent in the workplace should be classified as working time, due to the structure of the Working Time Directive, the Member States could not reach agreement on this issue without also reaching agreement on the ‘opt out’.
It had been hoped the ESPHCA, which is made up of ministers in the fields of employment, social policy, health and consumer affairs from each of the Member States, would reach a political agreement. Although some progress was made, the compromise text submitted by the UK Government was rejected by 15 of the 25 Member States (including Germany, France, Spain, Sweden and several ‘new’ Member States). It is now unlikely this issue will be resolved under the UK Government’s rotating presidency of the European Union, which ends on 31 December 2005. Furthermore, the impasse opens up the possibility of the European Commission bringing infringement actions against Member States for failing to implement a revised Working Time Directive. Public sector bodies, but not private sector bodies, may be exposed to direct legal action by their employers.
