‘Opt-out’ from the 48-hour working week: the latest developments

April 23, 2009

Workers have recently felt the benefit of changes to legislation governing “working time”. For example, from 6 April 2009 the statutory entitlement to holidays increased to 28 days (inclusive of bank holidays) for those in full-time employment.

This is, however, not the first time in recent months that working time has been at the centre of considerable press coverage. For some time now, the European Council and the European Parliament have been debating whether the Working Time Directive should be revised. One issue in particular has been hotly contested - whether workers should lose the right, currently enshrined in domestic regulations, to opt out of the 48-hour limit on the working week; in other words, whether workers should be allowed to continue (by agreement with their employers) to work more than 48 hours a week. Along with the United Kingdom, 14 other member states make use of the opt-out, but only six (including the UK) apply it across the whole of their workforces, rather than just particular sectors.

What is the debate over the opt-out?

Opinions are divided in the UK. Some argue that the UK has a long-hours culture, which they regard as damaging and counterproductive. Others see the ability of UK workers to work beyond the 48-hour limit as beneficial. Yet another viewpoint is that provided the opt-out is voluntary, it should be up to the individual worker to decide whether to opt out and that it is not a matter to be determined by European legislation. This discretion is regarded as particularly important in the current economic downturn.

Recent developments

In September last year, the European Council adopted a “common position” on potential amendments to the Working Time Directive, which had then been approved by the European Commission. In relation to the 48-hour opt-out, it was agreed that this right should be retained, provided certain safeguards were in place.

However, in December 2008, when the matter went before the European Parliament, this common position was rejected and significant amendments were proposed, one of which was that the individual opt-out should be phased out three years after the adoption of the revised Working Time Directive. Then, in February this year, and contrary to the position adopted by the European Parliament, the European Commission stated that in its view the opt-out should be retained but should be subject to review.

So where are we now?

Unfortunately, it appears that we are still some way off a resolution to this long-running debate. This month, the most recent talks between the European Council of Ministers, the European Parliament and the European Commission failed to reach agreement. Consequently, the future of the opt-out remains uncertain. The European Parliament is still pushing for the opt-out to be phased out three years after the introduction of the revised Directive, but the UK and other countries remain opposed to this.

This is now the final stage of the legislative debate on current proposed amendments to the Working Time Directive. If no agreement is reached in May 2009, the European Commission will need to consider whether to introduce new proposals for amendment. In the meantime, the current position will be maintained.

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