Agreement at EU Level on the next phase of the Working Time Directive – June '08

At the same meeting of the EU Employment and Social Affairs Council on 10th June 2008 where the draft of the Temporary Agency Workers Directive was agreed (see above), agreement was also secured on the next Directive to amend our Working Time legislation.

In light of relatively recent case law from the European Court of Justice (Simap/Jager ruling), time spent by an employee on-call is considered to be working time by the Court. A new Directive was drafted in 2005 to plug certain “gaps” in the existing legislation, including taking account of the ruling on on-call time, plus placing further protection for employees in the Member States that use an “opt-out” clause for the 48-hour week. The main points of this agreement are:

• On-call time is to be split into active and inactive on-call time. Active on-call time to be counted as working time;
• Inactive on-call time may not be counted as rest time and can be counted as working time if national laws or social partners agree;
• The standard maximum limit remains at 48 working hours per week unless an individual worker chooses otherwise (opt-out);
• A new protective limit (cap) of 60 hours will be put in place for workers who opt out, unless social partners agree otherwise;
• A new cap of 65 hours will be put in place for workers who opt-out of the inactive on-call time being counted as working time;
• This cap protects all workers employed for longer than 10 weeks with one employer;
• The “opt-out” can only be used under certain conditions, such as: no signature on the “opt out” during first month of employment, no victimisation for not signing or withdrawing opt-out, employers must keep records on working hours of opted-out workers.

While this agreement will have much greater significance for Member States that use the “opt-out” option, such as the UK, once it is drafted into legislation, it will have an impact on Irish companies with a UK presence or those that are high users of on-call facilities. No date has been set for transposition into Irish law yet, but it is unlikely to happen this year.