Report on the proposal for a directive of the European Parliament and of the Council amending Directive 2003/88/EC concerning certain aspects of the organisation of working time

MEPs want the right of individual workers to opt out of the maximum 48 hour working week to be scrapped three years after the new working hours directive enters into force (Amendment 20 adopted with 378 votes in favour, 262 against with 15 abstentions). They also want hours "on-call" to count as working time in most cases. Parliament took these decisions when it adopted a legislative report by Alejandro CERCAS (PES, ES) by 345 votes to 264 against, with 43 abstentions.

Members thus disagree with the proposal put forward by the European Commission, which would keep the individual opt-out while tightening up the conditions for its application. Again in contrast to the Commission, MEPs want the entire period of any time spent on-call, including the "inactive part", to be regarded as working time. But the committee decided that Member States could allow inactive parts of on-call time to be calculated in special ways in order to comply with the maximum weekly average working time. MEPs also clarify the definitions of "on-call time" and "inactive part of on-call time."

MEPs agree in general with the Commissions proposal to extend the reference period over which the average working week is calculated from 4 to 12 months, but Members want to strengthen the conditions. According to the rapporteur, extending the reference period meets reasonable concerns regarding the flexibility of regulations, but it has to be guaranteed that it’s implemented reasonably with checks and a guarantee of protection of health and safety. That’s why Members demand that either a collective agreement is necessary, or, in cases where workers are not covered by collective agreements, workers have to be consulted in an appropriate way and measures have to be taken to prevent any health and safety risks. In further amendments to the Commission’s text, MEPs decided that working hours should be organised in such a way as to give employees the opportunity for life-long learning. They also want to achieve the right balance between reconciling work and family life and the need for more flexible organisation of working time. And they want to make it clear that workers who have more than one employment contract are covered by the directive, so another amendment spells out that an individual’s working time must be calculated as the sum of the periods under each of the contracts.

Background The working time directive (Directive 2003/88/EC) provides a basic level of protection for most workers, with the notable exception of managers. It means an employee has the right to a daily 11 hour rest period, regular breaks, a weekly working time of no more than 48 hours, a minimum annual holiday of four weeks, and, in general, that night time working should be limited to eight hours out of 24. The original Directive 93/104/EC, adopted in 1993, was amended in 2000 by Directive 2000/34/EC. The two have been consolidated into Directive 2003/88/EC which is now up for review.

In 1993, the UK negotiated an opt-out system, which authorised Member States not to apply the 48 hour limit under certain conditions. The individual employee had to agree in advance, workers who refused to waive their rights must not be victimised and working hours of people who did waive their rights must be recorded. Although this opt-out was not limited to the UK, this is where it has been most widely used. Concerns have been raised about potential abuse of the individual opt-out system, for example by workers being presented with the opt-out clause at the same time as their contract, which could be seen as limiting the individual’s real freedom of choice. The lack of a definition of on-call time in the directive caused more problems. It led to Court of Justice rulings which state that on-call time must be counted as working time. This has major financial and organisational implications for many Member States. Most Member States need to adapt their national law as a result. The court rulings affect above all - but not exclusively - the health sector. Following the rulings, France, Germany and Spain applied the opt-out to their health care systems.