I regret that our basic statement did not reach the joint committee until this morning. We sent it in good faith by e-mail yesterday evening.
I thank the committee for presenting us with the opportunity to elaborate on recent developments and the current state of play regarding the sensitive dossier on working time. The proposals on the table are the result of the work of six EU Presidencies and numerous and prolonged meetings of many working groups of COREPER and the Council. We are now at the final stages of conciliation, with negotiations being conducted between the Council and the European Parliament. Members have a copy of a short note for information which my Department has provided and should have to hand a copy of a two-page note prepared and circulated by the Department of Health and Children with a specific focus on the situation regarding working time as it relates to non-consultant hospital doctors, a topical item.
Before I comment on the current proposals for an amending directive on the organisation of working time, it is necessary to put the proposed revisions to the rules on working time in context. Ireland, with other EU member states, has a comprehensive set of rules on working time based on various EU instruments, commencing with the core directive which dates back to 1993. The terms of these directives were transposed into Irish law with the enactment in 1997 of legislation, namely, the Organisation of Working Time Act 1997. The legislation sets core standards to protect the health and safety of workers based on working time and rest periods. For example, it sets the maximum working week at 48 hours averaged generally over a four-month reference period as a core provision.
By way of derogation, as provided for in the original directive, the reference period can be averaged over six months for certain defined sectors. This arises in the case of activities involving the need for continuity of service or production, such as is the case with dock and airport workers, gas, water and electricity production or industries where work cannot be easily interrupted on technical grounds or where there is a foreseeable surge of activity such as agriculture or tourism. It is also possible to extend the average working period to 12 months by means of a collective agreement between employers and workers in the sector which must be approved by the Labour Court. Currently, over 70 such agreements are registered with the Labour Court covering a wide range of activities, principally under the headings of agriculture and construction and which, based on the most recent data, apply to some 120,000 workers.
Furthermore, the 1997 Act clearly sets out employees' entitlements to daily and weekly rest breaks, annual leave, night work and shift work entitlements. These robust provisions are backed up by strong enforcement mechanisms within which workers can vindicate their rights. They can, for example, make a complaint to a rights commissioner in respect of breaches of the provisions of the 1997 Act. Under the terms of the legislation, employers are required to keep correct and prescribed records of employee attendance, holidays taken, etc. Labour inspectors have powers to examine records held by employers in respect of the working time of individual employees to ensure the terms of the Act are being complied with. The Labour Relations Commission hears approximately 1,500 cases per year under the Act.
Since 2005 the European Union has conducted a review of certain aspects of this key legislation, arising from a built-in review clause relating to the continued application of the individual opt-out from the 48-hour average working week and key judgments of the European Court of Justice in 2003 and 2004 in respect of on-call time. The SiMAP and Jaeger cases raised a number of issues in this regard.
The Commission commenced the review process in 2004 with a period of public consultation, followed in 2005 by a first set of draft proposals, during the First Reading of which the European Parliament proposed amendments. There have been prolonged and detailed discussions on these revised proposals, conducted by no less than six EU Presidencies, culminating in June 2008 when Ministers for Labour reached agreement by majority vote on a Council Common Position on certain core matters, including the opt-out from the 48-hour rule in respect of on-call time and compensatory rest. The European Parliament, meeting in plenary session in December 2008, disagreed with and proposed a range of amendments to several aspects of the Council Common Position.
I will now elaborate on the Council's and the European Parliament's position on a number of these core aspects. The opt-out was provided for in the original directive of 1993 and allows for individuals who wish to do so to opt out from the average 48-hour working week, without limitation to the hours to be worked beyond the maximum. Ireland has not availed of the opt-out in its transposing legislation. At the time of enactment of the 1977 Act the then Minister for labour affairs indicated that Ireland would not avail of the opt-out as the 1977 Act was effectively a worker health and safety measure and, therefore, it was not appropriate to provide for an opt-out.
The position adopted by EU Ministers in June 2008 would allow member states who wish to do so to provide for an opt-out from the 48-hour rule by individual workers but with new built in safeguards and limitations, stricter reference periods and review and evaluation clauses. These are designed to act as further constraints against unlimited and irregular working hours which may be to the detriment of the health and safety of workers concerned. Under the opt-out provision in the original 1993 EU directive for individual workers, there is no limitation on hours worked, whereas a cap of generally 60 or, in certain circumstances, 65 hours is now being proposed in the Council Common Position. One can see the evolution of thinking in that area. The European Parliament, on the other hand, is strongly opposed to the continuation of the opt-out and has proposed amendments to the Council Common Position which would have the overall effect of terminating the possibility for member states to avail of the use of the opt-out three years after the amending proposal, namely, the revised directive, enters into force. In this regard the core proposal of the European Parliament is set out under amendment No. 16.
With regard to on-call time, Ministers have sought to distinguish between active and inactive periods of on-call time at the workplace. Their proposal creates a new category of on-call time, the inactive period, during which the worker is available in the workplace but might not carry out any duties. The Council position is that the inactive part of on-call time should not be considered as working time unless, in accordance with national law and practice, a collective agreement or an agreement between the social partners provides otherwise. There would be an element of national call on this in various member states. The Parliament, on the other hand, has opposed this approach and proposed that the entire period of on-call time, including the inactive part, be deemed to be working time and cannot be deemed to be rest time.
With regard to the issue of compensatory rest and the timing of compensatory rest, many member states have difficulty with compensatory rest occurring immediately following the duty period, as envisaged in the European Court of Justice in the cases I mentioned. EU Ministers sought that such rest be granted within a reasonable period, determined by national legislation, collective agreement or in agreement between the social partners. Again, there would be a devolved approach to this. The Parliament considers that compensatory rest should be granted to workers following periods of time spent on duty. There is significant divergence between the two approaches.
In view of the differences between the Council and Parliament, it has been necessary to move to the next and final stage of conciliation between the co-legislators on this dossier. Negotiations are also conducted by the EU Presidency in what is termed an informal trialogue format where the Presidency, following agreement with member states at COREPER on the Council mandate, bring the position of Council to the negotiations with the representatives of Parliament. These initial informal trialogue meetings usually precede the more formal conciliation sessions. To date two rounds of conciliation have taken place, on 17 March and 1 April, but without any breakthrough.
I should say a few words on the role of the European Commission at this stage. The Commission sees itself as playing a key role as honest broker and, in co-operation with the Czech Presidency and in accordance with its treaty obligations, is assisting the co-legislators in arriving at agreement on this important amending proposal. On 4 February this year the Commission issued its opinion on the way forward towards adoption of the revised directive. In effect, as regards the possibilities of finding agreement between the Council and the Parliament on the dossier, the European Commission is of the view that the Council should move towards the Parliament's position with regard to on-call time with the Parliament moving towards the Council regarding the opt-out.
This approach on these core aspects, together with the movement proposed on other elements of the dossier, is designed to obtain a successful conclusion to the outcome of the conciliation phase, leading to the adoption of the revised directive. The Commission does not see the necessary support in the Council for ending the opt-out; it feels a review clause should be retained.
The Czech Presidency has convened several meetings of COREPER in recent weeks to develop the Council mandate for negotiations with the European Parliament in preparation for the conciliation phase. Clearly the Council Common Position provides a useful base from which to consider further adjustments that will be needed. These will lead to the compromise necessary for a successful conclusion of the dossier at conciliation. In preparation for conciliation, member states have considered each of the core issues to achieve the balance necessary for a sustainable compromise that can lead to the adoption of the amending directive. With this approach in mind I will outline the most recent developments at conciliation.
Member states have moved towards the European Parliament's position in several areas. An agreement between the Council and the European Parliament on on-call time looks feasible; the Parliament wants inactive on-call time to be considered as working time, but on less than an hour for hour basis towards working time limits. This conception of equivalence has opened up the possibility for a compromise on this core aspect.
Member states are considering a re-formulation of the wording of the Parliament amendment on compensatory rest. A possibility is that, as a general rule, compensatory rest must follow the period of duty. However, national laws or collective agreements could provide that in certain sectors of activity compensatory rest could be taken within what is termed "a reasonable period". Again, according to the Commission, any solution in this regard needs legal clarity on timing and must ensure flexibility for workers in organising work patterns.
With regard to the reconciliation of work and family life, member states do not want to introduce excessive burdens on businesses. Nevertheless, aspects of the Parliament's position are being considered, particularly those dealing with a worker's right to have a request in this area fairly considered by an employer.
These points represent the positive aspects achieved to date in COREPER discussions between member states; they will help develop the Council mandate and the follow-on negotiations between the Council and Parliament at conciliation. However, the challenge remains to find a suitable compromise on the opt-out, which is a core issue. The Presidency is currently in intensive discussions with member states on a weekly basis to obtain the necessary consensus on the Council mandate in advance of the regular informal trialogue and formal Council negotiations. In this regard a substantial effort has been made by member states at COREPER aimed at strengthening the value to the Parliament of the review clause. This is a major focus of the approach by the Presidency, the Commission and member states aimed at forging a compromise between the two institutions on this important aspect of the amending directive. This has been the clear focus of the Commission from the outset.
Regarding the next steps, negotiations between the Council and Parliament are ongoing. Clearly there are challenges for all concerned relating to the successful conclusion of conciliation and the adoption of the amending directive. A further trialogue is scheduled for 15 April and this will strive for a compromise solution on outstanding matters, particularly the opt-out. Any such solution must aim at achieving the necessary overall balance to arrive at a sustainable compromise on this dossier. The challenge remains and is formidable.
