European lawmakers have recently declared that the Working Time Directive opt-out should be abolished. Or was that restricted? Or, even weakened? Typical of all matters European another simple issue has been made subject to a morass of confusion and complexity.

Since 1993, all HR practitioners EU-wide have been ensuring that they manage a 48 hour week. Well, may be in the UK and Denmark. Elsewhere, France works a 35 hour week (now 39 hour week) while the Germans accrus 40 hours.

Yet, for flexibility purposes and as the original Directive decreed, the Directive sought only to set out minimum standards which could be bettered by national implementing provisions and in any case, such EU and national provisions could be overridden by collective and/or workforce agreements on working time.

This framework has allowed the social partners, management and unions or the workers themselves to agree working patterns to meet workload, income and business needs.

So, do these changes mean abolition, restriction or curtailment? The answer is unclear, since it seems to support contradictory messages. Further amendments have been proposed by the European Commission in relation to the Working Time Directive and can be found in COM(2005) 246 final published on 31 May 2005.

All amendments suggested by the Parliament have been accepted by the Commission with the only exceptions concerning the individual opt-out and the position of on-call hours. The suggestion by the Parliament of scrapping the opt-out was rejected. The Commission’s amended proposal makes the following provisions:

• in principle the opt-out will be available only for a period not exceeding three years following the date of implementation of the Directive by Member States (usually three years after adoption of the Directive, so probably 2012);
• Member States making use of the opt-out may, “for reasons relating to their labour market arrangements,” ask for the option to be extended beyond the period of three years. The Commission shall decide on the response to this request, giving reasons for its decision;
• the opt-out must be laid down by collective agreement or by law;
• workers having opted-out cannot work more than 55 hours in any week;

The Commission was also not able to accept the amendment proposed by the Parliament that hours spent “on-call” are to count as working time in most cases.

The Commission’s amended proposal instead makes the following concessions:

• allows the calculation of the inactive part of on-call time on the basis of an average number of hours or a proportion of on-call time
• lays down that the inactive part of on-call time cannot be taken into account in calculating the 11 hours daily rest or the 24 hours weekly rest period
• the proposal suggests that inactive on-call time is not counted as working time. However, inactive on-call time is also not counted as resting time

The amended proposal also includes a new provision concerning compatibility between working and family life. According to this provision, EU Member States are to encourage the social partners to conclude agreements aimed at improving compatibility between working and family life.

In particular employers must inform workers in good time of any changes in the pattern or organisation of working time and that workers may request changes to their working hours and patterns, and that employers are obliged to examine these requests taking into account employers’ and workers’ needs for flexibility.

Makes sense? It would seem that such a provision suggests that an opt-out on a collective basis can survive and co-exist under the Directive.

Thus, clarity prevails…or does it? In effect, despite the amendments made the end of the opt-out appears to create what the original Directive sought to prevent a two tier working force and mixed working practices. Let us not forget that the regulation of working time is about health and safety. Still, on average over 2,000 die at work in Britain.

To that end, British and EU HR practitioners alike should, in the first instance, strategically consider what is the best working pattern(s) to meet their business needs. Following such an audit, a discussion with employee representatives to consider workload and safety issues is paramount. Thereby reaching an agreement managing working time and in effect, opting out towards a more manageable working time regulation.

Dr Stephen Hardy is Senior Lecturer in Law, researching in Employment and EU law at the University of Manchester.