March 19, 2013
The Working Time Directive can be made to work better – but calling for the repatriation of social policy is not the way to do it.
For many in this country the Working Time Directive (WTD) is the perfect expression of unwanted interference from Brussels in our day-to-day lives, an infringement of our personal liberty, and a catalyst for Europe’s economic decline. It is the campfire around which eurosceptics gather regardless of their different visions for the future of Europe and the UK’s place in it, or out of it. Whether it’s Boris Johnson or Nigel Farage, the WTD is an easy target. And David Cameron, ever careful not to set out his stall on which specific EU powers he would seek to repatriate, could not resist a swipe at it in his Europe speech.
If the UK were free from the WTD – the logic goes – British workers would be able to work as long as they liked and the economy would start growing again.
Now, I have some sympathy with WTD detractors. I agree that those who wish to work overtime to supplement their income should be allowed to do so, particularly in these difficult times. As long as they are properly remunerated for their time, and that they are not forced to work against their will, where is the harm? And I understand that equating ‘on call time’ with ‘working time’ puts intolerable strain on health systems across the EU which is why 16 out of 27 member states apply the individual opt-out and some ignore the regulations altogether. I also agree with many businesses that it’s a messy piece of law and the opt-out is the most straightforward aspect of it. In a recent poll of SMEs published by the European Commission, the WTD was one of the top ten most burdensome pieces of legislation. It is the most expensive EU rule on the UK statute books, coming in at £2.6 billion per annum according to UK Governmentsources1.
But let us be under no illusion that freeing ourselves from the WTD would magically liberate our labour market and kick start growth. For instance, the WTD doesn’t just provide for a 48 hour working week (from which individuals, including junior doctors, are free to opt out), it also gives workers mandatory rest periods and four weeks’ paid leave a year. These last two provisions are the most expensive to implement, and together make up some 85% of the total cost of the regulations. The cost of the 48-hour week, however, accounts for just 2.6% of the total2.
It is hard to believe that, in the absence of EU rules, a future British Government, of whichever political hue (s), would wish to row back on existing rights such as paid holiday or rest breaks. Nor would any self-respecting employer. In the absence of EU rules, it is more than likely that employers will continue to incur significant costs providing breaks and paid leave because they believe, just like society does, that the benefits for productivity, for health and safety, and for work-life balance, are worth it. It is even conceivable that a future Government might set a cap on the working week – even if it is greater than 48 hours.
Would the UK not be better off working with the Commission and other member states to solve any problems caused by the SiMAP/Jaeger judgements and to improve the operation of the directive when it comes up for review in the next few months? Such a strategy would have a greater chance of success than persuading the other member states to let the UK off its working time obligations altogether.
Even if the European Parliament fights to scrap the opt-out, it is more than likely that a compromise could be reached on how working time is calculated that would effectively make the opt-out redundant. After all, the last time the directive was up for review, the EP was set to allow employees to work a 48-hour week averaged over 12 months (the reference period is currently 17 weeks), with no cap on hours worked per week. This would have allowed employees to work a maximum of 2304 hours per year, or taking into account rest periods, a maximum of 89 hours per week at peak times. It is hard to think of many businesses that would require a longer working week in order to survive.
Nor would the opt-out be so necessary if a solution could be found for the health sector by making a distinction between ‘inactive’ and ‘active’ on call time (as the Commission proposed back in 2004). It won’t be an easy negotiation but this time though the UK will be part of a formidable alliance of half of the member states and the European Commission. David Cameron would do far better negotiating from within, rather than risk the UK’s future on an opt-out that could end up being nothing more than a fig leaf.
But the WTD is just the tip of the iceberg. The real prize for the eurosceptics is freedom from all the EU social rules that, according to them, stop UK businesses from growing and creating jobs (even though the number of people in work today is the greatest since records began). And let us be clear that the end of EU employment rules will not mean an end to employment law altogether. The UK government and businesses would undoubtedly continue to provide two weeks’ paternity leave, or paid holiday for part time workers; or protection for employees working with dangerous chemicals for example. Moreover there is no guarantee that national law would be better or cheaper.
And at what price would repatriation come? The EU and its member states are unlikely to risk fracturing the Single Market without seeking concessions that could cost as much or more as the UK would save by opting out of aspects of the Treaties. The 17 euro-zone members or even the other 26 EU member states are more than capable of forging ahead without the UK – last December’s summit proved a case in point. If these costs included reduced access to the aspects of the Single Market or less influence over its development, the UK might well lose out.
The reality is that offering voters a choice between the status quo or EU membership with all the benefits and none of the costs is fundamentally dishonest. The NHS would certainly save some money not having to comply with the ECJ judgements that equate on call time with working time. And many businesses would save on employing temps. Would those cost-savings be worth the loss of our seat around the table or access to the Single Market that would almost certainly result from repatriation of social and employment policy? Not to mention withdrawal from EU membership altogether.
Moreover, the current Government policy of making our continued membership of the EU contingent on our ability to pick and mix is not sustainable for the UK or for the EU. Repatriating social policy might placate some europhobic backbenchers and smaller businesses but it might also anger some of the 30 million adults in work in the UK who would, initially at least, lose a raft of employment rights that they took for granted. At best it would paper over the cracks.
It would certainly fail to address the growing schism between the citizens of Europe and the political class. Voters across the EU increasingly worry that decisions are being taken far removed from them less that EU regulates working time or car emissions. The EU needs to find ways of improving its institutional structures and decision-making if it wants to be able to deal with all the challenges it faces. And the UK should be an integral part of that process because it faces the exact same challenges as other EU states, whether it be the geopolitical shift eastwards; the ageing population or the finite resources that this planet has to offer. To pretend otherwise in the hope of short-term political gains, would be a gross failure of statesmanship. And to promise things that cannot be delivered only increases the risk of alienation and apathy that are the enemy of democracy and the rule of law.
Karen Clements, policy adviser, European Movement.
1 Department for Trade and Industry, ‘Horizontal Amending Directive on the Working Time Regulations (2000/34/EC)’, July 2003, in Department for Trade and Industry, 2003 Compendium of Regulatory Impact Assessments, April 2004, p.136.
2 House of Commons Research Paper 98/92 – The Working Time Regulations – p.23
Author : European Movement UK