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Since this briefing note was first published the UK has succeeded in stalling the proposal to scrap the right to opt-out of the maximum 48-hour working week contained in the European Working Time Directive.

The European Council was due to vote on the proposal on 3 June 2005. However, it is understood that due to opposition by a significant number of ministers the vote was prevented from taking place. The UK Secretary of State for Trade and Industry, Alan Johnson, was backed by employment ministers from Germany, Poland, Austria, Hungary, Malta and Cyprus amongst others to form a minority group large enough to block a vote.

As the UK takes over the presidency of the European Union from 1 July this contentious issue is unlikely to be back on the agenda until 2006.

IS IT ALL OVER FOR THE OPT-OUT?

The European Parliament has this week voted to scrap the right of workers to opt out of the 48-hour working week contained in the Working Time Directive.

Currently UK workers can agree that the 48-hour limit will not apply to them. However, the existence of this ‘opt-out’ has always been very controversial - some groups have argued that in practice workers have no choice but to agree to the opt-out if they want to keep their jobs.

Therefore when the matter came up for review, the European Commission proposed a compromise solution whereby the opt-out could remain but subject to certain safeguards to prevent abuse. However, the European Parliament has gone much further than that and voted to phase out the opt-out completely within three years.

So is this the end of the UK’s opt-out?

At first glance the European Parliament’s vote seems very worrying for both employers and workers who wish to opt out. However, there is still a very long way to go before the current law can be changed.

In particular, the law can only be changed to remove the opt-out if both the European Parliament and the European Council (which is made up of ministers from each of the different member states) agree to that change.

Can the UK block the change?

The UK Government remains firmly opposed to removing the opt-out. The issue will be decided by the European Council by a complex form of majority voting. Effectively this means that the UK alone cannot veto the change. However, if the UK can muster the support of enough other countries opposed to the change (including Germany, Austria and Slovakia) then in theory there is already sufficient opposition to block it!

Watch out for lots of ‘behind the scenes’ diplomacy as the UK tries to shore up the opposition – there is already talk of a deal being struck between the UK and Germany to ensure they vote together against the proposed change!

There is also the strong possibility of a more balanced compromise solution emerging out of the European Council’s internal discussions – for example returning to the Commission’s original proposal to keep the opt-out but with safeguards.

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