That old chestnut: working time

Peter Reid | 23 Jun 2008 | 12:19

Our old friend working time is back on the EU agenda. Things in Brussels never really go away – they simply fester like overripe Camembert. Some misguided souls thought that, if the UK kept quiet and no one mentioned the words “opt” and “out” in the same sentence as “working” and “time”, all would be peace and harmony. Misguided, given that a many member states are breaking the law on working time and the European Commission is waiting in the wings to take legal action. Simply put, a resolution must be found – unless you’re a Europhobe, of course.

The individual opt-out was a work of genius. In one step it challenged the fundamental premise behind the European law on working time that individual employees should not have the power to decide their own working conditions. Again and again, the EU favours the collective over the individual. In doing so, it is not deliberately being difficult or anti-British, but merely reflecting the domestic norm in most of “old Europe”. There, there’s a deep-rooted assumption that governments, not individuals, know what’s best.

In addition, the issue has history. Successive member states have tried unsuccessfully to broker a deal during their presidential terms. Where heavyweights such as France and Germany have failed, will plucky Slovenia, which holds the EU presidency until July, succeed? Bizarrely, success depends on what is understood by the term “collective bargaining”.

On 20 May, the CBI and TUC reached a deal establishing equal treatment for temporary workers after 12 weeks of continuous employment. The draft European temporary workers directive (which, like the working time directive, has been blocked) proposes that temps should be entitled to equal treatment after only six weeks of employment unless there’s a collective agreement that specifies otherwise. Both blocked laws have become linked.

Several member states need the working time law to be revised to remove the threat of a legal challenge. The UK wants to keep its opt-out, despite intense opposition from other member states. Ideally, it would also like to see the back of the temporary workers directive. For many other member states, reaching an agreement on temporary workers will simply legitimise protectionist local laws that restrict foreign workers from accessing their job markets. The price to the UK of being part of the EU is learning to live with, and amend as far as possible, the anti-competitive and protectionist legislation that comes from Brussels.

So here’s the rub: can a deal between the CBI and TUC ever be classified as collective bargaining? Not surprisingly, the French and several other member states will say “non”, but who cares? Instead of challenging the legitimacy of their collective agreements when less than 4 per cent of the private-sector workforce is unionised, think of Marcel Duchamp. The father of conceptual art bravely expounded the dictum “I am an artist, and everything I do is art if I say it is”. That’s impeccable from a philosophical point of view. So how about “we are the UK government and this is a collective agreement if we say it is”?

Challenges to statements of national competency do not go down well in the new quasi-constitution world. Rational responses may not win the day. The thought that a new member – Slovenia no less – might broker an agreement on not only one but two difficult issues will be too much for many bureaucrats.

A deal too far is, unfortunately, the outcome I predict.

EU leaders meet to discuss key employment legislation

Peter Reid | 13 Jun 2008 | 16:18

On the 10 June 2008, in the latest in a line of anonymous looking concrete buildings on the windswept plateau of Kirchberg, Luxembourg, 52 politicians from 27 member states sat down to the 2,876 Council meeting. The Employment, Social Policy, Health and Consumer Affairs Council (to give it its correct name) decides employment laws in Europe. The politicians meet in an oval shaped auditorium of over a 1,000 square meters with 100 seats in the front row to ensure that no-one feels left out. With space for a further 1,000 participants, there is ample room for the many hundreds of bureaucrats that any European meeting requires.

Despite the bureaucracy, the council under the leadership of Slovenia reached “political agreement” on two of the most contentious issues (working time and agency workers), that have defeated at least 6 other European Presidencies over the last four or five years. The same meeting also reached agreement on a shed load of other proposals, including: guidelines for the employment policies; two draft regulations concerning the coordination of social security systems; a recommendation on enhanced administrative cooperation on the posting of workers; the implementation of the Beijing Platform for Action concerning Girl Child and Women in political decision-making; and something to do with antimicrobial resistance, to name a few.

What member states politicians have done is to reach a political agreement linking working time and agency workers together. In effect this means that the broad outline has been agreed and it will be for national civil servants to agree the final text.

The main points of the 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
• Standard maximum limit remains at 48 working hours per week unless an individual worker chooses otherwise (UK opt-out)
• 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
• 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 are:

• 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.
Once the text has been finalised there will be a formal vote at a future council meeting. This really is just a formality. However, the big issue will be the attitude of the European Parliament. Both proposals are subject to co-decision with the European Parliament.

This means that they have to agree it and can block it. The track record of the EU Parliament is not good. Invariably on employment matters they act in a reactionary and protectionist manner and are hostile to individual rights taking their lead from the European trade union movement. Sensing this Vladimír Špidla, EU commissioner for employment, social affairs and equal opportunities strongly welcomed the agreement and stated, “The ball is now in the court of the European Parliament and I sincerely hope that this solid agreement will find a majority”. It will be several months before this issue is resolved, and based on past experience HR professionals should expect some change before these issues are finally agreed. Watch this space is the message.

Positive consequences

Peter Reid | 23 Apr 2008 | 16:08

Simple questions are sometimes the most effective. At a recent conference in Brussels on the European Commission’s plans to revise European Works Council law, there were some strident attempts to justify the commission’s actions. Ignoring the inherent bias of the commission-funded research which claims that 40 per cent of companies did not consult properly, a member of the audience interjected that “obviously then, 60 per cent of companies do consult properly”. The follow-up was the killer blow. “Why does the European Commission base its legislative proposals on things that go wrong, rather than things that go right?”. The Commission official was momentarily speechless and made no attempt to answer.

Later, at an informal dinner with the global HR leadership team of a US multinational I was reminded of thinking about the positive, when at the end of the meal, the executive vice president announced that it was time to “recognise”. So everyone present “recognised” an individual within their Company who had done something above and beyond what was required or expected. They stood up and explained what it was that their chosen person had done that was out of the ordinary. The process itself was subjective and entirely random and the issues and people recognised ranged across the organisation. It included someone who had managed the consequences of a customer-facing employee diagnosed with TB to an HR colleague who had assisted in the due diligence on an acquisition in Iberia. It sounds corny, but in reality it was not.

Simply put, it brought attention to those that deserved it. It worked. I was hooked and felt drawn to recognise one of the assistants who works for my client. An individual who is both fair and efficient and always goes the extra mile when asked, even if it is a consultant doing the asking.

So there you have it. HR thinks positively while the commission thinks negatively. Unlike a company they do not have to sell, they simply dictate. The best hope for the commission was that the European employers and trade unions would agree to negotiate revisions to the European Works Council law. Surprisingly for some, the trade unions have refused to negotiate. A decision that John Monks may well regret in the coming months and years. As a result of the trade union rejection of negotiations the ball is firmly in the commission court. They will now have to decide what will be in any revised proposals and when they will be introduced. Regardless of what the commission will bring forward we already know that their proposals will be based on what does not work. Not a recipe for success.