At a recent meeting of the EU Employment and Social Affairs Council, agreement was finally reached after many years in relation to the working time opt-out and definitions of on-call time, as well as new proposals to extend employment protection to temporary agency workers. The agreements now go to the European Parliament for approval.

According to the Commission press release (in the absence of the revised text of both Directives being available at the time of writing):

The main points of agreement in the Working Time Directive are:

  • on-call time 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) for workers who opt out: maximum working week of 60 hours unless social partners agree otherwise
  • new cap for workers who opt-out if inactive on-call time is counted as working time: maximum working week of 65 hours
  • the cap protects all workers employed for longer than 10 weeks with one employer
  • workers can opt-out only under certain conditions, such as: no signature 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.

The main points of agreement in the Temporary Agency Workers Directive:

  • equal treatment as of day one for temporary agency workers as well as regular workers in terms of pay, maternity leave and leave
  • possibility to derogate from this through collective agreements and through agreements between social partners at national level
  • temporary agency workers to be informed about permanent employment opportunities in the user enterprise
  • equal access to collective facilities (canteen, child care facilities, transport service)
  • Member States have to improve temporary agency workers' access to training and child care facilities in periods between their assignments so as to increase their employability
  • Member States have to ensure penalties for non-compliance by temporary agencies and enterprises.

Rueffert case - ECJ decides collective agreement is unlawful

In Rechtsanwalt Dr Dirk Rueffert (as liquidator of the assets of Objekt und Bauregie GmbH & Co KG) v Land Niedersachsen C-346/06, Polish construction workers were sacked from a German public sector construction contract when it was realised that they were not complying with regional legislation and local collective agreements, which required the payment of an enhanced minimum wage. The ECJ held that the regional, as opposed to national, law which placed the requirement on the public authority but which did not set any minimum rates of pay was not a "law" within the meaning of the Posted Workers Directive. Furthermore, the collective agreement at issue in this case had not been declared universally applicable and therefore did not comply with the Posted Workers Directive. The degree of worker protection in this case (ie the requirement to pay enhanced local pay rates) therefore fell outside that provided for under the Posted Workers Directive. The ECJ also decided that such protection restricted the provision of services in Germany by service providers based in lower wage countries. Such a restriction could not be justified either by the objective of ensuring worker protection (because the protection was limited both geographically and to the public sector and not universally applicable) or by the objective of ensuring protection of independence for trade unions in the organisation of working life. As such, it was a breach of Article 49.

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