Mr Cercas said after the vote in plenary: "This is a triumph for all the political groups in the European Parliament - for the whole Parliament. It is a victory for the two million doctors and medical students across the EU. I would like to congratulate the ETUC. This is an opportunity for the Council to engage with the citizens' agenda and to have a constructive conciliation. I call on the Commission to stop supporting the Council and play the role of an arbitrator."
Conciliation
The directive is now likely to go into conciliation - the final stage of negations with Council.
An absolute majority of 393 votes was needed in plenary to confirm the Employment committee's amendments or to adopt any other amendment to the Council's common position.
The future of the opt-out clause
In 1993 the United Kingdom won an opt-out clause allowing it not to apply the maximum 48-hour working week if a worker agrees to work longer. The Parliament proposes the abolition of this clause, which is used in some Member States, three years after the revised directive, enters into force. Most MEPs feels that an annualisation of the reference period for calculating weekly working hours would allow a sufficiently flexible organisation of working time. Fifteen Member States currently exercise the opt-out.
MEPs adopted the amendment on the abolition of the opt-out 36 months after the entry into force of Directive with 421 votes in favour 273 against and 11 abstentions.
In June this year, EU employment and social affairs ministers reached an agreement. Under their common position of 15 September 2008, working time in the EU must be limited to 48 hours maximum unless a Member State introduces an opt-out clause and a worker decides to use that clause. For workers who opt for the derogation, the legislative text lays down a maximum of 60 hours of work a week on average over a three-month period. This can be increased to 65 hours a week on average over three months where there is no collective bargaining agreement and where the inactive period of on-call time is regarded as working time. The text also stipulates various safeguards for workers who use the opt-out clause.
Annualisation of the reference period
In May 2005, at first reading, Parliament proposed extending the reference period for calculating weekly working hours from four to twelve months under certain conditions, in order to prevent any risk to workers' health and safety.
The aim was to strike a balance between health and safety and the need for work to be organised flexibly, as well as to simplify the existing directive, which allowed various derogations and exceptions.
The text approved by the Council allows Member States to provide for a twelve month reference period in the legislation following consultations with employers' and employees' organisations. However, the maximum reference period will be six months in Member States which decide not to use the opt-out clause.
Definition of on-call time as working time
The Council and Commission introduced the ideas of "active" on-call time (a period during which the worker must be available at the workplace in order to work when required by the employer) and "inactive" on-call time (a period when the worker is on call but is not required by his employer to work).
In its common position the Council says that inactive on-call time should not count as working time unless otherwise decided by national law or by agreement between employers' and employees' representatives in accordance with national law.
At its second-reading vote, the Parliament reiterated its position that any period of on-call time, including inactive time, is to count as working time. However, inactive on-call periods can be calculated in a specific way for the purposes of complying with maximum weekly average working time.
Other provisions
In addition, Member States must ensure that employers inform workers in good time of any planned major changes in the organisation of working hours. For the Parliament, employers will have to inform workers well in advance of any changes in working hours. In addition, workers will be entitled to request changes in their working hours, and employers will have to take account of such requests in a fair manner and can only refuse them for valid reasons
Regarding rest periods, the general principle is that, where normal rest periods cannot be taken, workers should be given periods of compensatory rest. The Council's common position states that it shall be up to Member States to determine the length of a "reasonable period" within which compensatory rest is to be granted. The EP believes that compensatory rest periods should be granted "following periods of time spent on duty", in accordance with the relevant law or an agreement between the two sides of industry.
The Parliament adopted other amendments clarifying the situation of workers bound by more than one contract. Here it says that working time is to be defined as the sum of the periods of time worked under each contract.
It also stipulates the categories of senior executive exempted from the directive: chief executive officers, senior managers directly subordinate to them and persons directly appointed by a board of directors.
Background
The 1993 directive on the organisation of working time lays down basic principles concerning maximum weekly working hours, daily rest time, breaks, weekly rest time, annual holidays and the duration of night work. It also lists various derogations that Member States may allow for certain categories of worker (for example senior executives) or certain sectors.
Some articles of the directive were due to be reviewed after ten years. The review must also take account of rulings of the Court of Justice regarding on-call time. The Court has delivered two judgments - in the SIMAP and Jaeger cases - which define as working time doctors' on-call periods taken as a whole, in the light of the rules requiring their physical presence in a health care establishment.
Against this background, the Commission in September 2004 put forward a proposal to amend the directive. Parliament voted at first reading in May 2005. After three years of deadlock, the Council reached an agreement in June 2008 (Belgium, Cyprus, Greece, Spain and Hungary did not support the compromise). The EP Committee on Employment and Social Affairs voted at second reading on 5 November 2008 (rapporteur: Alejandro Cercas, PES, ES) and restated its first-reading position, notably on the two controversial points: opt-outs and on-call time.
