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Has the opt-out still got clout?
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The opt-out clause survived a review of the Working Time Directive. Will this 'temporary' measure come under renewed pressure when the European Parliament reopens?
The opt-out clause in the Working Time Directive affects the UK transport industry as it gives non-mobile workers such as fitters, traffic office clerks and warehouse staff, the right to say no to the 48-hour average working week, provided they have a workforce agreement to do so.
Among the unions, the battle to end the clause goes on. They believe it is easy for employers to persuade their workers that the 48-hour week is against their interests and the interests of the business. In effect, they are being coerced out of their legal rights to shorter working hours.
In Europe, the battle to end the opt-out is led by the Brussels-based European Trades Union Confederation (ETUC), which represents unions across the European Union.
ETUC confederal secretary Catelene Passchier says the opt-out clause was intended as a political compromise at a time when the Conservatives were in power in the UK. "When it was negotiated in 1993, it was not meant to be there for ever," she says. "The UK even went to court to try to overturn the Working Time Directive and failed.
"Introducing the opt-out clause for 10 years was to allow for a change in the political landscape. When Labour was elected, it should have scrapped it straightaway."
Inside Europe, the battle to end the opt-out has been raging between the European Parliament and the European Commission and Council of Ministers, with the EC and the Council taking a pro-business stance to retain the clause.
It is not just the UK that favours keeping the opt-out. "Some countries have become addicted to it," says Passchier. "I am pessimistic about it being scrapped in a legislative act soon."
The June elections tilted the balance of the European Parliament to the right, with extreme parties, including the UK's BNP, making some notable gains.
Different focus
These parties are unlikely to fight for workers' rights. "Some countries among the new members focus more on competitiveness, than rights," says Passchier.
-It's harder than ever to bring in social law. In the UK, business is screaming out loud every time the government moves in the other direction. Me 12-month
reference period, over which the average 48 hours is calculated, hasn't been a problem for business." (The LIK's Road Transport Directive, which covers lorry drivers, introduced reference periods of 17 and 26 weeks when it became law in 2005.) The recent battle in Brussels between the pro and anti opt-outers leads Passchier to believe that there will be reluctance to return to the issue. "Offers were made to the UK on flexibility to see if it would abandon the opt-out. A lot of holes were shot in the directive without getting rid of the opt-out," she says.
Instead, Passchier believes Europe will focus on chasing countries that are in breach of the directive by not complying with the substance of the regulations. Ireland, for example, is still in the process of implementing the law four years after the UK complied.
"The EC will be under pressure to act against member states in breach," she says.
Union membership
Places that abuse the opt-out are those with low union membership. "Unions need to work harder to organise in areas where the opt-out is allowed. Workers should have more notice of longer hours."
So what does the industry think? The Road Haulage Association (RHA) is in favour of retaining the opt-out. -We believe individuals should have that right," says employment affairs director Ruth Pott."-There are other laws to protect workers' rights."
The RHA also believes that owner-drivers should be brought into the scope of the Working Time Directive. "All drivers should be covered by the same regulations," she says. "However, owner-drivers remain covered by the drivers' hours regulations. It will be difficult to enforce the directive for this group. The only thing worse than a had rule is a bad rule that can't he enforced."