The saga continues of the so called “deal”, under which the UK’s
position opposing the Agency Workers Directive (AWD) was withdrawn in
exchange for agreement for the UK to retain the 48 hour opt out under
the Working Time Directive (WTD.) On 17th December the EU
Parliament made a determined attempt to remove the opt out by voting for
its removal – in direct conflict with the alleged agreement.
This could represent another nail in the coffin of the “deal”
although it is important to emphasise that the position is not yet
finalised and the Directive will now have to go to a conciliation
procedure to decide its future.
Let’s recap. The parties to the “deal” which was announced on 20th
May 2008 we are told were the CBI, for employers, and the TUC, for
workers. The deal authorised the UK to change its opposition to the AWD,
a position that it had long held. The UK wanted to change its position
apparently for no driving need other than to keep the unions happy, and
it clearly put pressure on the CBI by pointing out that the right for
workers to opt out of the 48 hour maximum week could be lost if no deal
Given the current circumstances it is
not clear how determined the UK actually was to retain the opt out since
it now looks as if the opt out may not be retained. The writer finds a
number of things hard to stomach about this. A deal is an agreement
which is meant to be binding on both parties. One part of such an
arrangement should not be allowed to be concluded unless the other part,
the consideration, is also concluded. This is basic stuff. Yet what we
all now know is that the AWD has been concluded, but the opt out
retention has not. It’s a bit like handing over the keys to the house
without receiving the money.
So what was the CBI doing
in not ensuring that included in the deal was the very simple condition
that its concession was dependent on the opt out being retained and
approved and concluded at EU level? The CBI clearly did not like having
to concede to AWD, which it described as “the least worst option”. What
was the worst option we ask? The very position that we now appear to be
facing? If the CBI relied on assurances from the government, what was
the government doing giving those assurances unless they could be
delivered upon? Who is meant to be protecting our interests?
It is true that for the opt out to be lost the WTD must be amended. No amendment and the opt out remains.
is for and against? The EU Parliament, by an absolute majority, and the
EU Commission are both for the amendment, getting rid of the opt out.
The EU Council and the UK is against the amendment, allowing the opt out
It is a sorry state of affairs that our right to opt
out remains only because of conflict, particularly as the conflict must
be resolved. How can it be resolved? By further negotiation perhaps? In
which event what further concessions will have to be made for the opt
out to be retained, or is it possible that the Council will concede to
the majority vote and the opt out be lost? Current indications are that
the Conciliation Committee could consider retaining the opt out, but for
only 3 years. Hooray, another victory for us in the UK! Is this what
the CBI had in mind?
Is anyone making a fuss about this or are we alone in voicing these concerns?
the meantime the AWD was published in the Official Journal of the EU on
5th December, effectively making it law. The UK therefore has until 5th December 2011 to implement it.
have now been told by BERR that the UK consultation is not likely to
commence until February or March 2009. This delay potentially indicates
that other factors are at play, either lack of Government time to
prepare the consultation, or a slow realisation that the issues are far
more complex than the Government previously recognised, or a combination
What we suspect will become clear, if not
already obvious, is that AWD will be difficult to implement in the UK
whilst still providing the level of protection that some have campaigned
Let’s not forget that the benefit of the opt out
is to help workers improve their income by working longer hours. The AWD
in contrast appears to provide little meaningful benefit but is set to
heap bureaucracy on us all.
Conclusion. There must be a significant change of tack if the horse, already bolted, is to be reined in.