Select Committee on European Union Twenty-Sixth Report

Working time and temporary agency workers: towards EU agreement

1.  This report describes the developments up to September 2008 in the search for agreement among EU Member States to the Commission's proposals: (a) to amend the present Directive 2003/88/EC[1] on working time; and (b) to introduce a new directive on the working conditions of temporary agency workers.

2.  On 10 July 2008, the responsible UK Minister—Mr Pat McFadden MP—gave evidence to us about the agreements reached in Council on 9 June about the two Directives. Subsequently, on 15 September 2008, the General Affairs and External Relations Council formally adopted the Common Position on the Directives and on 22 September these were submitted to the European Parliament for Second Reading.

3.  At the time of preparing this report, we had just seen the 7 October 2008 decision[2] of the European Parliament Employment and Social Affairs Committee to approve the Council Common Position on temporary work, without amendment. The Committee expressed the wish that the six year old proposal for a directive should enter into force without further delay. We note, however, that amendments may nonetheless be tabled at the plenary session of the European Parliament when the Council's Common Position is discussed.

4.  This report makes available for the information of the House, the evidence relating to the agreements reached in Council, which we heard from Pat McFadden MP on 10 July. The evidence was taken by Members of EU Sub-Committee G (Social Policy and Consumer Affairs), whose names are shown in Appendix 1.


5.  Both these Commission proposals are of very long standing and it has been politically difficult for the Ministers representing EU Member States to reach agreement on them at meetings of the Employment Council[3]. The Committee has taken a keen interest in both proposals since their publication and has conducted extensive correspondence with the Government about the progress being made towards agreement on them.

6.  In 2004, the Commission conducted a consultation as part of its preparation for its 2005 proposal to amend the Working Time Directive. The Committee conducted an inquiry and published a report[4] as an input to that review. The Government responded to this report[5], and it was debated on 2 July 2004[6].

7.  Despite attempts by successive Presidencies, agreement on the two Directives could not be reached in Council until the 9 June 2008 Employment Council meeting. In advance of that meeting, the Secretary of State for the Department of Business, Enterprise and Regulatory Reform (BERR), John Hutton MP, wrote to the Committee setting out the background. Attached to Mr Hutton's letter was a copy of a Joint Declaration by the Government, CBI and TUC on the subject of temporary agency workers.

8.  The Committee replied to the Minister expressing our support for him to seek agreement in Council on texts that satisfactorily removed the long-standing UK problems with both the Commission's proposals. We went on to confirm that we wished to explore the issues further with the Minister for Employment Relations—Pat McFadden MP—when he came to give evidence to us after the Council meeting.

9.  Copies of the correspondence between the Committee and the Government before and after the 9 June Council meeting are shown in Appendix 2 to this report, and a copy of the Joint Declaration by the Government, CBI and TUC on the subject of temporary agency workers is shown in Appendix 3.

10.  The Council documents from the 9 June meeting setting out the political agreement on the Working Time Directive[7] and on temporary workers[8], as well as a joint statement by certain Member States about the agreement on working time[9], are all accessible on the Council's website.

The Minister's Evidence

11.  The topics we explored with Mr McFadden on 10 July were as follows. The full transcript of the Minister's evidence is printed from pp 1-9.

Working time Directive

12.  Mr McFadden explained that there would no longer be any requirement to phase out arrangements that Member States wished to operate in order to allow individuals the right to opt out from a 48 hours maximum to their working week. It would also now be possible for Member States to exclude inactive periods for workers who were on call from the calculation of average weekly hours. This latter flexibility would be of particular relevance in the context of arrangements for on-call working in the National Health Service which had been affected by the SiMAP[10] and Jaeger[11] judgments in the European Court of Justice[12] (QQ 1, 12-13).

Temporary Agency Workers Directive

13.  In relation to the temporary agency workers directive, the Minister explained that the main change agreed in Council on 9 June was that it would be now be possible for Member States to apply the directive in a way that allowed the conditions applicable to temporary agency workers to be qualified by national agreements with the social partners. The agreement reached by the Government with the TUC and CBI (shown in Appendix 3) was an example of such an acceptable agreement (QQ 1, 19).

Next steps with the Directives

14.  Mr McFadden made clear to us that the 9 June agreement in Council on the two directives was by no means the end of the story. Since both the proposals were subject to the process of co-decision, it would now be necessary to seek the views of the European Parliament on the texts agreed in Council. The Minister thought that the process for the Parliament to consider the texts would begin in September 2008 (QQ 5-6).

15.  The Minister added that, if the European Parliament were to request substantial changes to the latest texts, a process of conciliation between the Council and the Parliament could be entered into in order to find texts acceptable to both institutions (Q 5). He assured us that the Government would be talking to MEPs, not just UK MEPs, in order to try to secure maximum support for the position that had been reached on 9 June. It was for the Parliament to take its own view but, the Minister emphasised, "I think it is worth everyone in this bearing in mind how long it took to get the agreement on 9 June and, therefore, if we all start unpicking it and saying, 'We don't like this part and we don't like that part', we could be back where we were, which was an inability to agree this" (QQ 10-11).


16.  We welcome the agreements reached in Council on 9 June on both these long-standing proposals. Bearing in mind, however, that under the co-decision procedure the agreement of the European Parliament must also be achieved, we urge the Government to argue energetically the case with MEPs for the merits of the texts agreed in Council.

17.  Nevertheless, we recognise that achieving the agreement of the European Parliament may not be straightforward and that, since both the proposals are subject to co-decision, a process of conciliation may be necessary. We plan therefore to retain both these proposals under our scrutiny reserve and to consider further any revised texts that may be brought forward following the European Parliament's deliberations.

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3   The full title of the Council forum in which these matters are discussed is the Employment, Social Policy, Health and Consumer Affairs Council (EPSCO) Back

4   EU Select Committee, 9th Report (2003-04): The Working Time Directive: A response to the European Commission's Review (HL 67) Back

5   EU Select Committee, 26h Report (2003-04): Government Responses pp 39-43 Back

6   HL Deb 2 July 2004 cols 481-506 Back

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10   Judgment of the Court of 3 October 2000 in case C-303/98, request submitted to the Court by the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain) in the dispute between Sindicato de Médicos de Asistencia Pública (SIMAP) and Conselleria de Sanidad y Consumo de la Generalidad Valenciana, ECR 2000, p. I-07963. Back

11   Judgment of the Court of 9 October 2003 in case C-151/02, request submitted to the Court by the Landesarbeitsgericht Schleswig-Holstein (Germany) concerning the dispute pending before that court between Landeshauptstadt Kiel and Norbert Jaeger, ECR 2003, p. I-08389 Back

12   See the account of the SiMAP and Jaeger judgments given in chapter 3 of the EU Committee report cited above. Back

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