EHJ May 2004, pages 162-163
The UK is the only EU state where working hours are on the increase. Tina Garrity reports on fears that the UK is exploiting loopholes in employment legislation and looks at the accession states joining the European Union this month

Ten years after being adopted, the EU working time directive is as controversial as when it was first proposed. For many workers it has provided a welcome tool in the fight against long hours and lack of time off. Others, meanwhile, complain that the directive denies workers the choice of doing valuable overtime to supplement their income and that it imposes unreasonable burdens on small businesses.

When the directive was adopted, the UK secured an option for member states to opt out from the 48-hour week, as long as workers agreed and proper records of the hours worked were kept. Over the years, other member states have shown an interest in invoking the opt out, particularly for workers in sectors like healthcare and catering.

But there are fears that the loophole is being abused and that employers are forcing workers to sign agreements without giving them the alternative safeguards provided by the directive.

To complicate matters, there have been a number of disputes about the methods used to calculate the 48-hour week, in particular concerning doctors. The European Court of Justice has ruled that any doctor on call while at a place of work can count these hours towards the 48-hour total, even if no actual work is done. Member states believe this will lead to increased health care costs as hospitals are forced to recruit more doctors and nurses to cover the gap. Equally, the commission fears this decision will prompt even more abuses of the directive's opt-out clause

In particular, there are concerns about the way the UK has implemented the directive through the Working Time Regulations 1998 and 1999, which the commission believes fails to protect workers in the way the legislation intended.

Concerns focus on the way UK legislation allows for the opt-out agreement to be signed at the same time as the employment contract. This, the commission believes, could lead a new employee to feel they have to sign the opt out to get the job. It is also concerned that UK legislation no longer obliges employers to keep a note of the hours worked by those agreeing to the opt-out, as required by the directive. This makes it impossible to verify compliance with other parts of the directive. The commission warns: "The way the directive is transposed into national law, it could in practice prevent the workers in question from benefiting from certain rights laid down in the directive, which was evidently not the intention of the community legislature."

The commission has found no reliable figures on the number of workers who have signed opt-out agreements. A CBI survey suggests the figure could be as high as 33 per cent of UK workers. However, the number of people who say they actually work more than 48 hours a week is much less. Health and Safety Executive figures indicate that some 16 per cent of the workforce, 4 million people, work more than 48 hours a week. This means that more people are being asked to sign the opt out than are actually using it.

This 4 million figure is of concern, says the commission, since evidence clearly indicates that long hours at work have a bad effect on health and safety. Even more worrying is the increasing number of people working over 55 hours per week. The commission has noted that the UK is the only member state where weekly working time has increased over the last decade.

This comes as employees look for greater flexibility in working hours to cope with childcare or dependent elderly relatives. Also, companies are being forced to open longer hours in response to customer demand. But the commission believes that these new social and economic demands could lead to greater equality of opportunity for men and women and improve the overall quality of employment by enabling as many people as possible to work.

Productivity will also rise because more people working shorter hours will lead to increased motivation and availability and greater opportunities for vocational and personal training.

Among the measures currently being considered by some member states are flexible hours for carers, more part-time working, the use of time credit systems and the phasing out of working hours for older workers. Any revision of the working time directive will need to take these factors into account, believes the commission.

The commission is seeking views on three issues: the continuing appropriateness of an opt-out clause, how working hours are calculated, and the need to adapt EU legislation to fit changing patterns of work. This communication is the first step in the consultation process.

COM (2003) 843. Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions and the social partners at Community level concerning the re-exam of Directive 93/104/EC concerning certain aspects of the organisation of working time.

http://europa.eu.int/eur-lex/en/com/cnc/2003/acom2003_0843en02.pdf

Accession states become EU's new front line

On 1 May, the European Union gained 10 new members, representing the biggest enlargement in the EU's history. The expansion has come about largely because of the collapse of communism which presented an opportunity to extend the benefits of European integration eastwards to the former Soviet bloc countries of central and eastern Europe. Those joining in the first wave are Poland, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia and Slovenia. In 2007, Bulgaria and Romania will join, providing they meet the entry criteria in time. In addition to the eight former eastern bloc countries, two of Europe's smaller countries, Cyprus and Malta have taken the opportunity to join.

All 10 new members have been allowed to nominate individuals to sit on the European Commission. Although they will not have voting rights, they will be shadowing the existing commissioners over the next six months.

The bigger and more integrated market is expected to boost economic growth for the new and current members with newcomers also benefiting from investment by western European firms and from EU regional and social development grants.

On the environmental front, all the new entrants have had to adopt EU environmental legislation. It is hoped that the resulting reduction in transboundary air and water pollution will create a cleaner environment for all.

In the food safety arena, the new member states will be on the EU's front line for imports from third countries. In all their new border inspection posts, staff will have to fully apply EU legislation on behalf of the whole Europe in order to ensure food safety and security of animal health within its boundaries. Veterinary experts from the current member states will help enforce legislation at the new veterinary border inspection posts.

As for health and safety, working conditions and equal opportunities, the commission has called on government, employers, trade unions and civil society within the accession countries to adhere to EU law. It has announced it will be working hard over the coming months to help the accession states through this period of transition.