Blame game starts as Working Time talks collapse[fr][de] 

In the last round of negotiations, the Parliament and the Council agreed that they could not reach a compromise on three crucial points: the opt-out, on-call time and multiple contracts. The decision was taken by an overwhelming majority in the European Parliament (EP) delegation with 15 votes in favour, five abstentions and zero against.

It is the first time that no agreement has been found in a conciliation committee - the 'last-chance saloon' for negotiations between Council and Parliament - since the entry into force of the Amsterdam Treaty, which significantly extended the scope of the co-decision procedure for legislative acts. 

”Unfortunately, after five years of negotiations, it was not possible to reach an agreement. The EP negotiating team made several proposals on the opt-out so that it would become 'exceptional and temporary'. The opt-out cannot be forever. On the Council side, any attempt to put an end to the opt-out was not acceptable," said German Socialist MEP Mechtild Rothe, who lead the Parliament's delegation. 

Opt-out torpedo

Of all EU member states, the UK had been the most prominent in the debate over the years, and remained so until the last. The opt-out to the 48-hour week rule was originally inserted at the behest of the British government, and has attracted the support of successive UK administrations. A cluster of other countries followed suit.

"The Socialist-dominated negotiating team interpreted their mandate from the Parliament very rigidly, and refused to accept compromises regarding on-call time, which were on the table, unless there was a parallel agreement to phase out the opt-out. It was obvious from the beginning that the blocking minority in the Council would never agree to this, and so the Parliament's 'all or nothing' approach ensured that the result was nothing," said the centre-right EPP-ED group's employment and social affairs coordinator, Philip Bushill-Matthews. 

The EP negotiating team pointed the finger at the Council's blocking minority for having torpedoed the negotiations. "How can you have a blocking minority decide for the whole European Union?," exclaimed Swedish Socialist MEP Jan Andersson, who chairs the EU assembly's employment and social affairs committee and was also a member of the negotiating team. 

On call-time and multiple contracts 

Successive rulings by the European Court of Justice (ECJ) have classified on-call time as working time. This position was supported by a European Parliament vote on 17 December 2008 (EurActiv 18/12/08). 

The proposals by the Commission and the Council on the issue were backward steps compared to the ECJ's rulings, MEPs said. 

No substantive agreement on the issue of multiple contracts could be reached either. For workers covered by more than one employment contract, MEPs considered that working time should be calculated per worker and not per contract. 

Will the next Commission take up the baton? 

Since there is no agreement, the current directive, dating from 1993, remains in force. Nevertheless, the new Commission has the option of drafting a new proposal from scratch when it takes office in the autumn. 

"We can only hope that the new Commission makes a new proposal very soon," said Rothe, adding that during the confirmation hearings of the new commissioners,  working time was sure to play a prominent role.

"We have stuck to the mandate given to us by the Parliament. We took on board views of firemen, doctors, workers and business leaders that wanted to be sure that there would be no social dumping across Europe due to the working time systems," said Socialist MEP Alejandro Cercas, the Parliament's rapporteur on the revised directive. 

"Parliament also had a mandate to negotiate, but chose not to," added the centre-right EPP-ED group's employment and social affairs coordinator, Philip Bushill-Matthews. "But the good news is that the opt-out remains, and millions of workers throughout the EU will no longer be dictated to by politicians, who claim to know better than the people themselves how to run their lives. In the UK alone, over three million people choose to work longer hours in order to fend for their families: their freedom to choose is now preserved," he said.

UK Green MEP Jean Lambert, a member of the European Parliament's employment committee, commented: "Council's behaviour is deeply disappointing - governments have refused to listen to citizens and the European Parliament. Parliament has offered compromises in half-a-dozen meetings over the last few weeks, but an intransigent Council refused to even consider them, and stayed behind a red line of never ending the opt-out." 

"This was despite Parliament offering a solution, for example, for a definition of on-call time for emergency services that would have ended the need for the opt-out," she added. 

"Greens support the European Parliament position for a maximum of a 48-hour average working week. This already allows a good degree of flexibility for both workers and employers while respecting the health and safety of workers and the general public. There should be no opt-outs on health and safety legislation. These opt-outs also create an unacceptable situation where EU countries compete downwards on labour standards," Lambert said. 

"Many commentators will deplore this as another failure to move the European Union forward. They are right on one score: there is no progress towards a social Europe. But improving workers' rights has not been on the agenda of the Commission and the Council. On the contrary: their proposals aimed at a serious dismantling of the Working Time Directive, which already provides for a very low level of protection. That these attacks have failed so far is a victory for employees all over Europe and for the trade unions", Portuguese GUE/NGL MEP Ilda Figueiredo declared.

"If the Council and the Commission had succeeded, annualised flexible working time schemes could have been decreed by mere administrative provisions - the member states would not even have had to ask parliaments at national level," said Greek GUE/NGL MEP Dimitris Papadimoulis. "This kind of 'exit option' would have seriously undermined the power of trade unions to conclude meaningful collective agreements, especially in the public sector. As this revision has failed, we keep the safeguards in the existing Working Time Directive that annualised working hours are only possible on the strict condition of collective agreements."

"[EU Employment and Social Affairs] Commissioner [Vladimir] Špidla must take action now and launch infringement procedures against those member states not complying with the ECJ rulings, as he announced to the Council years ago. There is no further excuse for inaction from the Commission," Papadimoulis added.

ETUC General Secretary John Monks said: "This is certainly not a victory for social Europe. We regret that it was not possible to reach an agreement that would have meant genuine social progress in Europe; for that, the individual opt-out should have clearly been put on hold and be recognised as a temporary exception that does not have its place in health and safety legislation. Also, the situation of the millions of European workers with on-call duties in sectors such as healthcare should have been properly safeguarded."

"However, we agree with the European Parliament that, unfortunately, an agreement was not possible. A group of countries has become so much addicted to the individual opt-out that, by now, they consider it as their fundamental right to keep it forever. This is unacceptable for the majority in the European Parliament and the trade union movement," he added.

"The European Parliament has played an essential role, with our support, to stop an important piece of European social law to be considerably weakened. The challenge is now to ensure that the Working Time Directive regains its key role in providing minimum standards on working time in Europe. This is especially important in a time of economic crisis and a globalising world," Monks concluded.

BusinessEurope said it was pleased that the opt-out was retained. "This is important in contributing to the competitiveness of the European economy. It also allows workers to work overtime in order to improve their earnings," read the organisation's press release.

BusinessEurope President Ernest-Antoine Seillière said: "After so many years of stalemate, the compromise found by the Council was unfortunately not backed by the European Parliament. BusinessEurope asks the Commission to come forward with a practical solution for on-call time."

"We urge the Commission to draft a new legislative proposal finally taking into account the constraints of services around the clock by making a clear reference to the 'inactive on-call time' category," said Ralf Resch, general-secretary of CEEP (representing European employers and enterprises that provide public services).

"Only the ability not to count the inactive part of on-call time as working time can guarantee the effective provision of key SGIs all over Europe," Resch said. 

In the meantime, "CEEP will be obliged to keep delivering its members the same message of past years: as clarity over the uncertainties brought by these ECJ rulings is not provided by the EU legislator, you will have to keep bringing clarity yourself," he added.