Council discusses draft Directives on working time, equality and radiation

An EU social policy and employment Council meeting took place in early December 2004. Topics discussed included the European Commission's proposed revision of the working time Directive, a proposal aimed at bringing existing equality Directives together into a single text, and a draft Directive on protecting workers against exposure to optical radiation.

EU employment and social affairs ministers met in Brussels on 6-7 December 2004, within the framework of the Employment, Social Policy, Health and Consumer Affairs Council, under the Dutch Presidency of the Council of the European Union.

Health and safety - optical radiation

The Council reached political agreement on a common position on a draft EU Directive on minimum health and safety requirements regarding the exposure of workers to the risks arising from optical radiation. The text sets out minimum requirements for exposure, aiming to harmonise controls in the different Member States. It is based on guidelines for restrictions on exposure produced by the International Commission for Non-Ionising Radiation Protection, designed to prevent acute and long-term effects on the eyes and skin that can occur at extremely high levels of exposure. The text places duties on employers, including requirements to assess risk, reduce exposure, undertake health surveillance and provide information and training to workers.

This text is the fourth and final 'physical agents' Directive to be proposed since 1999, when the Commission decided to split an original proposal for a Directive on minimum health and safety requirements into separate Directives on four physical agents: mechanical vibration; noise; electromagnetic fields (EU0405202N); and optical radiation.

The common position will be formally adopted at a forthcoming Council meeting before being forwarded to the European Parliament (EP) for a second reading under the co-decision procedure.

Working time

The Council made progress on a number of key issues regarding the proposal for a Directive amending the Directive concerning certain aspects of the organisation of working time (originally adopted in 1993 and now consolidated in Directive 2003/88/EC), which was presented by the Commission in September 2004 (EU0410205F). These issues include:

• a redefinition of working time, reflecting recent European Court of Justice (ECJ) judgments on the subject of on-call working. It introduces the introduction of the concepts of 'on-call time' and 'inactive part of on-call time'. On-call working is defined as time during which the worker has the obligation to be available at the workplace to carry out duties at the employer’s request. The inactive part of on-call working is defined as a period during which the worker is on call, but not required to carry out duties. The inactive part of on-call working would not be classified as working time. The draft also includes a definition of 'workplace';

• the granting of compensatory rest. Where derogations to rules on daily or weekly rest have been made, compensatory rest should be granted within 72 hours or within a reasonable period (within a maximum of seven days) as determined by national laws, regulations or administrative provisions, or collective agreements or agreements between the two sides of industry;

• a review of the provisions of Directive 2003/88/EC concerning the possibility of, and the conditions for, derogating from the reference period for the application of the maximum weekly working time. The normal four-month reference period for averaging out maximum working time would be retained. However, the Council agreed on a provisional basis that Member States may extend this period up to one year by law or regulation, after having consulted the social partners; and

• a review of the 'opt-out' from the maximum 48-hour week provision of the Directive. This is the most controversial element of the Directive. The proposal makes the opt-out subject to a collective agreement as well as individual agreement, stating that an individual agreement on its own would be acceptable only in the absence of a collective agreement and of employee representation empowered to conclude a collective agreement. The proposal also tightens record-keeping provisions and states that opt-outs should not be sought on the conclusion of the employment contract, nor during any probationary period.

This proposal was discussed at the October (EU0410204F) and November social affairs Councils but differing views between governments, largely on the opt-out from the 48-hour week, prevented political agreement being reached. While it is reported that countries such as France, Belgium, Spain, Sweden and Greece are in favour of abolishing the opt-out over time, Ireland, the UK and some of the new Member States are in favour of maintaining the individual opt-out. Subsequently, the Council instructed the Committee of Permanent Representatives to continue work on this proposal, pending receipt of the EP’s opinion, and it is hoped that agreement on a common position in the Council can be reached at the earliest possible date. The social affairs Commissioner, Vladimir Spidla, expressed the hope that political agreement could be reached during the Luxembourg Presidency, which runs during the first six months of 2005. A first reading of the text in the EP is due in May 2005.

Social policy agenda

The Council discussed a new social policy agenda in the context of the Lisbon strategy (EU0412205F and EU0004241F), identifying six possible specific areas for priority action, known as the 'A-C-T-I-O-N' approach. These are:

• activation - more and better jobs and a more dynamic and inclusive labour market, to increase labour market participation;

• commitment - from actors at all relevant levels;

• training - investment in 'human capital' to increase skills and productivity;

• inclusion - of the most vulnerable social groups;

• organisation of work - increasing the adaptability of companies and workers; and

• non-discrimination - equal opportunities for all in all aspects of life and access to work and services.

Equality between men and women

Pending the opinion of the EP, the Council endorsed a general approach on a draft EU Directive that aims to bring together into a single text seven Directives in the gender equality area. The Commission has proposed this move as it feels that, in the interests of legal clarity and certainty and to reflect developments in ECJ case law over the past 20 years, it would be a good idea to bring all of these Directives together into a single coherent instrument. They are:

• Directive [75/117/EEC](http://europa.eu.int/servlet/portail/RenderServlet?search=Query&lg=en&nb_docs=25&domain=Legislation&coll=&in_force=YES&title=&party=&year_from=1975&month_from=1&day_from=1&year_to=1975&month_to=12&day_to=31&text=equal pay&inforce=on&from=1/1/1975&to=31/12/1975) on equal pay;

• Directive 76/207/EEC, as amended by Directive 2002/73/EC, on equal treatment as regards access to employment, vocational training and promotion and working conditions;

• Directive 86/378/EEC, as amended by Directive 96/97/EC, on equal treatment in occupational security schemes; and

• Directive 98/80/EC, as amended by Directive 98/52/EC, on the burden of proof in cases of discrimination based on sex.

A first reading of the draft Directive in the EP, under the co-decision procedure, is due in May 2005.

Equality action programmes

Pending the opinion of the EP, the Council endorsed a general approach on a draft EP and Council decision aligning the duration of two programmes in the field of equality between men and women until 31 December 2006. This concerns the programme relating to the Community framework strategy on gender equality (EU0007264F) (Decision 2001/51/EC) and the Community action programme to promote organisations active at European level in the field of equality between men and women (Decision No. 848/2004/EC). The proposal includes a corresponding adjustment in the budget of these two programmes.

Commentary

The December employment and social Council covered a number of important issues. These included reaching political agreement on a common position on the draft Directive on protecting workers against exposure to optical radiation. The Council also discussed the proposal to amend the Directive on the organisation of working time. However, it would seem that there is still a long way to go before agreement can be reached in the Council on this proposal. Equality between men and women was another important issue covered, in that the Council took a step towards a single EU Directive drawing together seven individual Directives on the equal treatment of men and women in the field of employment as well as aligning the duration of two equality action programmes. (Beatrice Harper, IRS)