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AS WE OUTLINED IN OUR LAST ISSUE (page 3), the EU is currently deciding how to amend and update its Working Time Directive. Designed to protect the health and safety of workers by limiting long hours, the directive was first passed in 1993. In 1998 the incoming Labour government applied it in the UK with the important difference that employees were permitted to sign an opt-out which allowed them to work longer than the 48 hour average weekly limit. Now that the directive is under review this is proving to be the most contentious of its provisions.
In the second phase of their consultation process the European Commission reports on the responses from both unions and employers (the social partners). They say that 'Firstly, there is a consensus on the question as to whether the Directive should be amended' and calls for them to negotiate. However this would seem to be unlikely when the positions of the partners are examined. The European Trade Union Confederation (ETUC) considers that the opt-out 'is in flagrant contradiction to the objectives and provisions of the Directive, and with the fundamental principles of the protection of health and safety'. On the other hand the Union of Industrial and Employers' Confederations of Europe (UNICE) wants the opt-out to be maintained and to be extended by collective agreement where possible.
If the parties cannot reach an agreement the Commission must put forward its own proposals and it has given several possible alternatives which give a clue to its thinking. One alternative would be to keep the opt-out but tighten up its application by, for instance, not allowing employees to sign up as they are hired, regularly asking workers if they wish to continue their opt-out and instituting an ultimate maximum for hours worked even under the opt-out. Another possibility is that the individual opt-out will be replaced by a collective one between unions and employers. Thirdly a combination of the previous two options might allow individuals to sign opt-outs under stricter conditions only where no collective agreement can be made. Lastly the Commission retains the right to abolish the opt-out, albeit in a phased way while tackling abuses in the meantime.
The British government also made a submission to the Commission in which they stated that 'The opt-out, properly operated, allows workers to choose whether or not they wish to have their hours limited. Provided workers freely choose to work long hours, and are subject to appropriate health and safety regulations, we feel strongly that their right to choose should be respected on this subject'. But this drew fierce fire from the TUC who criticised it as being 'riddled with errors, inconsistencies and sloppy argument'. 'If this is the best they can do, it shows the strength of the case for ending the opt-out. Our only worry is that the Commission may fail to understand that this is little more than a cut and paste job from employer lobbying' continued General Secretary Brendan Barber.
The Commission is also considering the extension of the so-called 'reference period', which is used to average out working hours, from 17 weeks to 1 year. Once again the social partners line up on opposite sides with UNICE wanting to go beyond a year in some cases and the ETUC demanding that 17 weeks stay the norm except by collective agreement.
Finally the Commission proposes that on-call time, in occupations such as medicine and the police, be given a third category which is neither work nor rest in order to deal with complications arising from the SIMAP and Jaeger court cases (see European Review issues 13 and 25). The ETUC want such time classified as work while UNICE see it as rest.
Consultation to get works councils moving
TEN YEARS AFTER THE PASSING of the original directive on European Works Councils, the European Commission is anxious to take them to the next stage of 'transnational social dialogue' and is consulting unions and employers about possible amendments. 650 companies employing 11 million workers now have European Works Councils on which 10,000 representatives sit and the Commission acknowledges their contribution to company progression and the management of change. But it also stresses the developments that have occurred since the legislation that created them. The Lisbon summit in 2000 enshrined change in industry and management as the motor which would provide the economic dynamism necessary to create 'The most competitive and dynamic knowledge-based economy in the world'. Other developments have included the directive on Information and Consultation, the success of the social partners in negotiating agreements in areas like part-time and temporary workers and the experience gained within the works councils themselves.
According to the European Commission 'European works councils have clearly demonstrated their value, not only in meeting the objective of providing access to information and consultation for employees ... but, equally significantly, in providing a ... contribution to company development, particularly to the successful management of change'.
However the trade unions are well aware of failures in the law which need to be remedied. The European Trade Union Confederation (ETUC) are urging a tighter definition of 'information and consultation' to match that directive as well as of the rôle of unions and as to whether one company is a subsidiary of another. It also wants action on training, the use of experts, access to company sites and preparatory and follow-up meetings so that reps. can disharge their duties properly. Finally it wants companies to be prevented from using confidentiality as a way of gagging Council members and for decisions taken in breach of the directive to be voided.
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