The working time directive

People may vote as they wish, but at least they should know the facts. No decision is legitimate unless it is an informed decision. A fact may attract or put off a voter. But facts are facts, whether you like them or not.

Such a situation arises when one considers the European Union directive regarding the limit of working time on overtime. An unmarried factory girl may feel happier to have fixed working hours without overtime, while a young husband may plan his future on the possibility of overtime.

On this debated issue, and the Working Time Directive, I was attracted some weeks ago after I heard the news on Italian television stations that Italy was faced with proceedings before the Court of Justice for failing to comply about the day of rest. Was Sunday going to remain Sunday?

What came closer to our people was the question of overtime. There is an EU Directive (93/104) which lays down minimum conditions for the safety and health of workers. Its purposes are sublime, but its functioning may not be at all palatable. It refers to workers in all activities, as defined in another Directive (89/391), whether private or public.

Directive 93/104 came into force on November 23, 1993, and governments of the member states were given three years to comply. Then within seven years there was to be monitoring on the Directive, and before the lapse of the seven years, that is this year, the Council has to see what should be done.

Thorny question

The most debated article is 6 (2). This lays down unequivocally that all workers should not work more than 48 hours, overtime included, in a period of seven days. According to Article 16, the average may be assessed on a period of four months. Calculating according to our 40-hour week, an employee may not work more than 136 hours of overtime over a period of four months, taking 17 weeks as equivalent to four months.

There are other rules about night shift work, and continuation of normal work.

When I read the Directive independently of the negotiation that were going on between the Malta government and the EU, and knowing the liking of most workers for overtime, especially the claims made to the Ombudsman about overtime and transfers depriving workers of overtime entitlement, I was struck by the possibility of radical changes after 2003.

If one reads the Directive as it is, Article 18 (1) (b) gives states the option "not to apply Article 6", under the conditions that the employee should give his consent to work more than 48 hours, that he is not victimised if he refuses, and that records are kept and are made available.

The Council could amend the Directive at any time, especially as it reserved the right to do so in Section 18 itself. This is, however, not the general rule, that overtime is by consent. It is an exception.

With the draft treaty...

With the draft Treaty of Accession in hand, I noticed that in exercising the option of "not applying Article 6", Malta chose a very limited scope. This was no longer in local legislation but as a clause to be inserted into an international binding treaty. Malta did not retain the full option stated in Article 18. The derogation was no longer general and indefinite, but specific and limited by time.

There is nothing better than quoting verbatim.

"In Malta, Article 6 (2) of Directive 93/104/EC shall not apply until 31 July 2004 in the manufacturing sub-sectors of food and beverages, textiles, clothing and footwear, transport equipment, electrical machinery, appliances and supplies, and furniture; and until 31 December 2004 in respect of collective agreements existing on 12 December 2001 in the above-mentioned manufacturing sub-sectors where these agreements contain clauses relevant for Article 6 (2) with validity beyond July 2004."

Now this draft treaty has already been approved by the Commission and the Council and is now before the European Parliament.

Had Malta said nothing with reference to Directive 93/104, as all the other applicant countries did, then Malta could have obtained the same result with reference to the manufacturing sub-sectors mentioned above by using the "option not to apply Article 6" mentioned in Article18 (1) (b). The only problem would have been as to what would come out of the decision of the Council in November 2003, or after.

As things are now, as Malta has limited its option to those specific cases and to that specific time period (manufacturing and end of 2004), the situation is different from what the virgin directive laid down. Malta is consequently binding its choice of options by a clause in the treaty. There is, for example, no phrase in the derogation such as "Without prejudice to Article 18 (1) (b) of Directive 93/104..." The die of the option "not to apply Article 6" has been irrevocably cast. This is the whole picture in its frame.

A final question. If the exemption was to apply to all workers, why does the draft treaty mention only the manufacturing sectors? Why was it not simply written down "in Malta Article 6 (2) of Directive 93/104 shall not apply to all workers"?