Commission reviews 48-hour week abuse

The European Commission is reviewing the use that member states are making of the option to "opt out" from the 48-hour maximum working week in the 1993 working time Directive.

The Directive, which was implemented in the UK by the Working Time Regulations 1998, introduced minimum requirements for rest breaks, rest periods, night work and paid annual leave, as well as the 48-hour week. The Directive excluded workers in the transport and offshore sectors, but the past two years have seen nearly all of these workers brought within the Directive's framework (Lorry and coach drivers face limits on working hours and Health and safety: the state of play ).

During the negotiations of the 1993 Directive, the UK secured an option for member states to opt out from the 48-hour week providing: the employer reaches prior agreement with individuals to opt out and subsequently maintains records of working hours; and that there are no repercussions for individuals who refuse to opt out.

The Directive required the Commission to review by 23 November 2003 the use of the opt-out and the way in which it was calculated. The Commission's report, which also functions as the consultative document, finds these guarantees are not always met: for example, employers in the UK frequently ask workers to sign the opt-out agreement and their employment contract at the same time.

The Commission is further concerned that recent European Court of Justice decisions are leading to increasing use of the opt-out elsewhere in the EU. Five member states - France, Germany, the Netherlands, Spain and Luxembourg - are preparing, or have passed, legislation to make limited use of the opt-out on a sectoral basis. The legislation mainly covers the health sector and time spent "on call", although Luxembourg has extended it to hotels and catering. In France, the opt-out is used only where the protection is better than that contained in the Directive.

The Commission is also consulting over the length of the reference period used to calculate the 48-hour week. In most cases, employers must average the 48-hour week over four months, although they can use six months in some instances. The period can also be extended to one year, but only by collective agreement. This is a problem for the UK, which is the only member state in which collective agreements cover less than half of the workforce (36%). The Commission acknowledges, however, that the UK is one of only four member states in which the legislation "faithfully reproduces the provisions of the Directive" on calculating the reference period.

But generally, the Commission appears to see the UK as the main offender: "It has to be noted that the main characteristics of the system governing working time in the UK have remained unchanged despite the entry into force of the Directive, mainly as a result of using the opt-out":

Anna Diamantopoulou, the European Commissioner for employment and social affairs, said: "We appreciate the importance of freedom of choice of individuals as to how they work. But in practice, the measures that the Directive foresees to safeguard the workers' interests when opting out are not properly implemented. We need to find a solution that balances the interests of all concerned."

TUC general secretary Brendan Barber adds that, in the UK: "Evidence collected by the TUC shows that many workers do not know their rights or even if they do, many often feel pressurised by their employers to sign themselves out of working-time protection. The opt-out has caused serious problems in the UK, and it cannot be allowed to remain." The Commission, he says, was "right to express concern at the way the Directive has been applied in the UK. We've had rules on working time for over five years but because of lax enforcement and the individual opt-out, UK workers still work the longest hours in Europe"².

The European Trades Union Confederation says it is "disappointed" with the consultation document because it had not proposed concrete measures to address the opt-out problem. Consultation closes on 31 March 2004, after which time the Commission will consider what proposals, if any, it should make.

¹ "Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions concerning the re-examination of Directive 93/104/EC concerning certain aspects of the organisation of working time", COM(2003) 843 final, 30 December 2003", http://europa.eu.int/comm/employment_social/labour_law/documentation_en.htm.

² "Working time Directive review 2003: the use and abuse of the 'opt-out' in the UK", TUC, www.tuc.org.uk.