Working Time Regulations – European Commission rejects Parliament’s vote to scrap 48-hour opt-outMonday, February 23rd, 2009
On 16 December 2008, the European Parliament voted in favour of amendments to the European Working Time Directive that would, among other changes, phase out the opt-out from the average 48-hour working week. By so doing, the Parliament rejected the common position that had earlier been agreed by the EU Council of Ministers.
Having reviewed the amendments that had been voted for by the Parliament, the Commission has published an Opinion that sets out a compromise approach. Six of the amendments are accepted as they stand and a further nine are accepted subject to some rewording, most of which relate to the way in which on-call time and compensatory rest are handled and changes to the reference period rules for calculating average worked hours. However, the remaining seven amendments are rejected, most of which are in the context of the opt-out.
The amendments would have the effect of eliminating the opt-out after three years. The Commission accepts that the opt-out is a derogation from the principle of the 48-hour working week and that its use can present risks to workers’ short-term and long-term health and safety. While supportive of the eventual phasing-out of the opt-out, it does not believe that conditions allow it to be phased-out at present in the light of major changes to the pattern of use of the opt-out by Member States and of the positions expressed by Member States.
The Commission’s position on the opt-out, therefore, is that it should be retained but with the following safeguards:
- the reference period would be limited to 6 months, with the facility to extend it to 12 months only by collective agreement
- use of the opt-out must be subject to the express, free and informed consent of the worker concerned, and subject to enforcement through safeguards and monitoring
- use of the opt-out only after alternative forms of flexibility have been considered
- the agreement to opt-out is valid for one year, with the option for workers to give notice to end the agreement
- no opt-out permitted during a worker’s probationary period
- no upper limit of hours worked in a week unless set by the member state (the earlier proposal to an absolute maximum of 60 or 65 hours is removed).
Opinion of the Commission
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