Fabian Demicoli

Working Time Directive Opt-Out Clause

The Malta Chamber of Commerce and Enterprise
Federation of Industry
Malta Hotels and Restaurants Association
GRTU – Malta Chamber of Small and Medium Enterprises
Malta Employers Association

The Malta Chamber of Commerce and Enterprise
Federation of Industry
Malta Hotels and Restaurants Association
GRTU – Malta Chamber of Small and Medium Enterprises
Malta Employers Association

Working Time Directive Opt-Out Clause

The FOI – Federation of Industry, the Malta Chamber of Commerce and Enterprise, the Malta Employers Association, the Malta Hotels and Restaurants Association and GRTU – Malta Chamber of Small and Medium Enterprises, are active in several European fora in which these organisations send their representatives, to defend the interests of enterprises established in Malta. The media has in recent days carried various opinions of politicians and unions concerning the Organisation of Working Time, a draft directive that has been under discussion in the European Parliament as well as in the European Economic and Social Committee (EESC). Our five major organizations that represent the majority of enterprises in Malta have their own opinions on this highly important topic. in favour of the opt-out clause that gives workers the right of individual voluntary choice on whether to work more than the maximum 48 hours per week as imposed by the Working Time Directive.

The representatives of Maltese employers in Group 1 (Employers Representatives) at the European Economic and Social Committee (EESC) Ms Sylvia Sciberras and Mr Edwin Calleja representing all the employer organizations mentioned above, have supported and canvassed in favour of the adoption of a draft opinion by EESC during the Plenary Session of May 2005 on the Proposal for a Directive. The European Employers organizations did not support a draft opinion that had received the approval of the Unions supported by some representatives of Civil Society. in the EESC: General assembly. Employers representatives supported by a number of members from the Civil Society Group tabled a Draft Counter opinion that was also voted upon and supported by a strong minority of the members. Because of the strong support received this draft counter opinion will therefore go to the Council and the European Parliament to show the differing view point of employers.

“Employers supported the Commission’s proposal, and not the Trade Unions version, for amending Directive 2000/88 EC concerning certain aspects of the organisation of working time
This proposal is based on Article 137 (2) in the Treaty establishing the European Community according to which the directives adopted should “improve the working environment to protect the worker’s health and safety” while it “must avoid imposing administrative, financial and legal constraints in such a way as to hold back the creation and development of small and medium sized undertakings”.

Employers insist in their counter-opinion on:

· giving a high level of protection of workers’ health and safety, whilst allowing companies flexibility in managing working time.

· Allowing greater compatibility between work and family life;
· Avoiding any imposition of unreasonable constraints on companies, in particular SME’s

The Commission rightly emphasized the important role on this issue of Member States and social partners at national, branch or enterprise level.

More specifically, Employers emphasized that a 12-month reference period is already used in many Member States. It therefore believes the current provisions of the directive should promote the annualisation of the reference period.

Concerning on-call time the Employers’ counter opinion points out that several Member States have national legislation and practices which contain rules on time spent “on call” in various sectors and especially in the health sector. These rules vary in different ways, but it is common in all cases that either on-call time does not count as working time at all or only partly.

Employers supported the European Commission’s proposal that the inactive part of on-call time should not be regarded as working time. This is crucial for the functioning of all enterprises, especially SME’s and for the further development of the social economy.

Furthermore, European employers acknowledged that on-call time should not be considered as resting time as this would lead to excessively long working hours, which could hamper the reconciliation of work and family life and endanger the health and safety of workers.

However, they said that they would consider if necessary, that the inactive part of on-call time could be established as an average number of hours, in order to take into account the different needs in the various sectors and enterprises.

European employers believe that the possibility of the ‘opt-out’ should be maintained and the collective opt-out should be put on equal footing with the individual opt-out. This is important in order to take into account the different practices on industrial relations across the enlarged EU as well as the needs of enterprises and the needs and wishes of workers that might wish to work longer in different periods of their lives.

Nevertheless, it has to be assured that this possibility stays voluntary, is not used in an abusive way and that the worker can withdraw his consent to work longer when his live circumstances change. Employers therefore supported the additional conditions linked to the opt-out as suggested by the Commissions’ proposal”.

Employer organizations believe that it is inconceivable for small, medium and large businesses in Malta to remain competitive if work places are restricted to a 48 hour week as a statutory imposition.

Our organizations believe that the Group 1 (Employers) counter-opinion was most appropriate for the requirements of a small economy like Malta and the European Commission, the Parliament and the Council of Ministers should give due weight to the opinions of leaders of enterprises in Europe if they seriously believe in the Lisbon Agenda and really want the European and the maltese economy to prosper in the coming years.
For Release
May 27 , 2005

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