Proposals for amendments to the Working Time Directive include significant tightening of conditions relating to the individual opt-out. Sarah Lamont reports
24 June 2005
Facilities managers and facilities management providers have been concerned about recent proposals for amendments to the EC Working Time Directive. As a result of those proposals, the future of the individual opt-out from the 48-hour working week has been increasingly under threat. However, a vote
by the Council of Ministers on 2 June has secured the continued operation of the opt-out, at least in the short term.
Under the Working Time Regulations 1998, workers are subject to a 48-hour limit on their average weekly hours of work. Individuals may opt out of that limit by written agreement with their employer. Workers may give written notice to terminate the agreement at any time, and may not be subjected to any detriment for refusing to sign an opt-out.
It was the United Kingdom that originally negotiated the individual opt-out, and to date the UK has been the only member state in Europe to make widespread use of it.
But France, Germany, the Netherlands, Spain and Luxembourg currently make limited use of the opt-out in certain sectors, or are proposing to do so.
The pressure for change began in September last year, when the European Commission proposed wide-ranging amendments to the Working Time Directive. These included the retention of the individual opt-out coupled, however, with a significant tightening of the conditions that apply to it.
The commission's main proposals were as follows:
In workplaces where unions have bargaining rights, it would only be possible for employers to use opt-outs for their staff if a collective agreement expressly allowed this and the individual worker consented. It was only where no such agreement was possible - because there was no collective agreement in force and no other form of collective negotiation - that individual consent could be obtained by the employer directly, without the need to seek the union's approval
It would no longer be possible for an opt-out to be entered into at the time when the employment contract was signed or during a worker's probation period. This proposal stemmed from a concern that the opt-out agreement is normally signed when a worker signs his or her employment contract - a practice which, in the commission's view, undermines the worker's freedom of choice
In all cases in which opt-outs were allowed, a worker's agreement would be valid for a maximum period of one year, although the agreement could be renewed
No worker would be allowed to work for more than 65 hours in any one week unless a collective agreement provided otherwise
Employers would be obliged to keep up-to-date records of all opted-out workers and of the number of hours actually worked by them. The United Kingdom legislation used to require this, but the Working Time Regulations were amended in 1999 so that employers only had to keep a copy of the opt-out agreement
On 11 May the commission's proposals were debated by the European parliament, which voted in favour of radical amendments under which the individual opt-out would have been scrapped altogether within three years of the revised directive coming into effect. The European parliament's proposals provoked widespread concern among employers' organisations, which claimed that the abolition of the opt-out would unduly restrict flexibility in the labour market. This is particularly the case in sectors such as facilities management, where providers may need to maintain a round-the-clock service or respond at short notice to emergencies or fluctuations in demand.
Facilities management providers will be relieved, therefore, to learn that on 2 June the Council of Ministers rejected the European parliament's proposals. The rebellion was led by the UK government, which gained enough support from other EU employment ministers to prevent a vote taking place on the proposal to remove the opt-out. Given that the United Kingdom takes over the EU presidency for six months on 1 July, any further debate on changes to the Working Time Directive is likely to be delayed until next year at the earliest. This means that the facilities management sector can rest easy - for the time being.
Sarah Lamont is a partner in the employment department at Bevan Brittan Solicitors