The European Parliament voted on December, 17th, against the Council's proposal on working time regulation, adopting by absolute majority the amendments proposed by Spanish rapporteur Alejando Cercas.  MEPs expressed their disagreement to exceptions to the 48 hours-maximum working time calculated over a reference period of 12 months and say the opt-out must end three years after adoption of the directive, adding that any period of on-call time should count as working time. A conciliation committee with the Council is now likely.

By adopting the amendments from rapporteur Cercas, the Parliament expressed its disagreement with the Council, where a political agreement on working time was reached in June 2008, notably regarding the “opt-out” and on on-call time, an issue of particular importance for the health sector. Council's Common Position adopted in October 2008 acknowledged the need to strengthen the protection of workers' health and safety and for greater flexibility in organising working time. With thier vote, MEPs adopted the amendment on the abolition of the opt-out 36 months after the entry into force of the directive with 421 votes for 273 against and 11 abstentions.
 
Rapporteur Cercas expressed after the vote in plenary that “this is a triumph for all the political groups in the European Parliament - for the whole Parliament.  It is a victory for the two million doctors and medical students across the EU.  I would like to congratulate the ETUC.  This is an opportunity for the Council to engage with the citizens' agenda and to have a constructive conciliation.  I call on the Commission to stop supporting the Council and play the role of an arbitrator."

Main elements of EP amendments

• The future of the opt-out clause: In 1993 the United Kingdom won an opt-out clause allowing it not to apply the maximum 48-hour working week if a worker agrees to work longer. The Parliament proposes the abolition of this clause, which is used in some Member States, three years after the revised directive, enters into force. Most MEPs feel that an annualisation of the reference period for calculating weekly working hours would allow a sufficiently flexible organisation of working time.  Fifteen Member States currently exercise the opt-out.
• Annualisation of the reference period: In May 2005, at first reading, Parliament proposed extending the reference period for calculating weekly working hours from four to twelve months under certain conditions, in order to prevent any risk to workers' health and safety. The text approved by the Council allows Member States to provide for a twelve month reference period in the legislation following consultations with employers' and employees' organisations. However, the maximum reference period will be six months in Member States which decide not to use the opt-out clause.
• Definition of on-call time as working time: The Council and Commission introduced the ideas of "active" on-call time (a period during which the worker must be available at the workplace in order to work when required by the employer) and "inactive" on-call time (a period when the worker is on call but is not required by his employer to work). At its second-reading vote, the Parliament reiterated its position that any period of on-call time, including inactive time, is to count as working time. However, inactive on-call periods can be calculated in a specific way for the purposes of complying with the maximum weekly average working time.

Other provisions

In addition, Member States must ensure that employers inform workers in good time of any planned major changes in the organisation of working hours. Regarding rest periods, the general principle is that, where normal rest periods cannot be taken, workers should be given periods of compensatory rest. The Council's common position states that it shall be up to Member States to determine the length of a "reasonable period" within which compensatory rest is to be granted.  The EP believes that compensatory rest periods should be granted "following periods of time spent on duty", in accordance with the relevant law or an agreement between the two sides of industry.
 
The Parliament adopted other amendments clarifying the situation of workers bound by more than one contract, stating that working time is to be defined as the sum of the periods of time worked under each contract.

It also stipulates the categories of senior executive exempted from the directive: chief executive officers, senior managers directly subordinate to them and persons directly appointed by a board of directors.

Working Time Directive

The 1993 directive on the organisation of working time lays down basic principles concerning maximum weekly working hours, daily rest time, breaks, weekly rest time, annual holidays and the duration of night work. It also lists various derogations that Member States may allow for certain categories of worker (for example senior executives) or certain sectors.
 
Against this background, the Commission in September 2004 put forward a proposal to amend the directive. Parliament voted at first reading in May 2005. After three years of deadlock, the Council reached an agreement in June 2008. The EP Committee on Employment and Social Affairs voted at second reading on November, 5th, 2008 and restated its first-reading position, notably on the two controversial points: opt-outs and on-call time.

The Council must now decide whether to accept Parliament's amendments and, if not accepted, the Directive would go into conciliation, the final stage of the proceeding, when both institutions will have to negotiate in order to reach an agreement, within a maximum of 24 weeks. Once agreed, the text turns back to Parliament for adoption or rejection, by a simple majority.