TCS Daily

Working Time Blues

By Jonatan Henriksson - May 4, 2005 12:00 AM

The EU's Directive on Working Time, which is currently undergoing a review with a first reading in the European Parliament due on 10 May, is perhaps one of the Union's most controversial measures in the social field. Originally agreed in 1993, the Directive sets limits on the amount of hours people can work per day (11) and per week (48, calculated as an average over 4 months, extendable to 12 months by collective agreement).

In the 1990s, the UK contested the legality of the Directive on the grounds that it could not qualify as a measure for protecting the health and safety of workers (the Treaty article on the basis of which the Directive was adopted). After the Court of Justice in Luxembourg threw out the British case, questioning of the Directive's very existence seems to have ceased. The debate on the September 2004 European Commission proposal for an amended Directive has shown, however, that there is still a substantial amount of discord as to its content - especially as far as the so-called individual opt-out is concerned.

Under this provision, individual workers can exempt themselves from the 48-hour ceiling on weekly working time by signing an agreement with their employers. Seen by some as an expression of pragmatism ("Enterprises need flexibility") and by others as a self-evident individual freedom ("Every person should have the right to work as much as he likes"), a third group considers the opt-out as the denial of a fundamental principle ("Every person should enjoy a limited working week") and calls for its suppression.

The opponents of the opt-out probably have a majority in the European Parliament. Most recently, the Parliament's employment committee confirmed its long-standing disapproval of the opt-out by voting an amendment to suppress it three years at the latest after the entry into force of the revised Directive. Elsewhere, trade unions and several member states (France, Germany, Spain, Sweden....) would also like to get rid of the opt-out. However, there are several reasons why they are wrong in taking such a non-compromising line.

First, and most obvious, the decision in the Council is subject to unanimity, which means that the UK - the opt-out's most stern supporter - could single-handedly veto any suggestion to abolish it. As the UK does not stand alone but is supported, tacitly or openly, by a number of countries in keeping the opt-out, an "arm-twisting" strategy is even less likely to succeed.

Second, and most principled, if certain countries consider the use of the opt-out to be in line with their perception of a welfare society, why should the rest of the EU take the opt-out away from them?

In addition, the opt-out is not widely used. The UK is currently the only country applying it in a general way. Luxembourg applies it only to the hotel sector, and Germany, France and Spain only to the health sector. The countries which do not make use of the opt-out should therefore have little to fear by way of competitive pressures resulting from the opt-out in other countries.

Third, and most importantly, it must not be forgotten that the aim of the Directive is to protect workers' health and safety. There is scientific evidence demonstrating that, so far as the individual is motivated for carrying out the work, the negative effect of long hours is attenuated. From this angle, the key question is rather how to ensure that the consent to work more than 48 hours per week is freely given and not subject to undue pressure from the employer.

Rather than advocating the suppression of the opt-out, it would therefore seem to make more sense for its opponents to reallocate their energy towards ensuring that its conditions protect the free choice of the worker.

On this point, the Commission proposal from September 2004 was fairly balanced. While maintaining the opt-out, it suggested a number of safeguards for the individual: the agreement cannot be given at the same time as the employment contract is signed, nor during any probationary period; no worker should suffer any detriment for refusing to opt-out; the employer should keep up-to-date records of the workers working more than 48 hours per week, as well as the actual number of hours worked; and these records should be open to inspection from the competent authorities.

These conditions will, for sure, add paperwork and somewhat reduce flexibility for enterprises, but, in truth, isn't this a fair price to pay for maintaining the opt-out? As for its opponents, if they do not deem the safeguards just mentioned sufficient, they should think about two further conditions the Commission has proposed. First, setting an absolute working time limit of 65 hours per week for those on the opt-out undermines their argument that the opt-out precludes every worker's right to a statutory limitation of working time. Second, the proposal that the opt-out can only be used if expressly foreseen in a collective agreement should do away with their remaining concerns that the opt-out cannot be applied in a fair manner to the workers involved. (Of course, in case there is no collective agreement or workers' representation capable of concluding one, an individual agreement is still sufficient under the Commission proposal.)

In view of all these safeguards, it is high time to stop thinking of the opt-out as a symbol of laissez-faire capitalism and accept that the Commission proposal would transform the opt-out into a regulated procedure (which, by the way, member states are free to make even stricter).

It is not easy to understand why the European Parliament often feels called upon to make competitive conditions in Europe more, rather than less, difficult. If the Parliament were to follow the employment committee's recommendation, and decide in plenary on 10 May to abolish the opt-out, it would clearly put enterprises in the UK and some other countries in a worse competitive position. Can it be sure that anybody -- including the workers concerned -- would be better off as a result?


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