What about overtime?

The working time directive (93/104EC as amended by directive 2000/34EC) has been transposed in local legislation by LN 247/03, which came into force on April 5, 2004.

My interest in the matter is two-fold. Firstly, I have specialised my studies in EU labour and social policy law to synchronise with my line of professional practice as a labour law practitioner. Secondly, as a Nationalist Party candidate for the coming European parliament elections, issues relating to work, health and safety and worker's rights will be very much on my agenda, having worked very closely with the Union Haddiema Maghqudin as its legal advisor for the past eight years.

The issue on the working time directive has to be looked into irrespective of political considerations and in line with what is best for the worker, the industry, the employer and the country.

I will try to write as simple English as possible for one and all to understand the concepts and stimulate a better discussion.

Following a report by the Commission late last year, the European parliament took an "own initiative" and prepared a report on this directive and the way it is being interpreted by the ECJ. The report was published towards the end of January this year.

A final resolution suggested that a revision of the directive was to be made, with a view to planning out as soon as possible the opt-out clause (the right of a worker to refuse to work for more than eight hours overtime per week over and above the 40 hours) and in the mean-time called on the Commission to identify practical ways of tackling potential or actual abuses arising out of this opt-out clause.

In Malta, representatives have voiced their concern that even here such abuses could take place. An employee could, for example, be asked to sign a declaration on whether to opt-out or otherwise during the probation period. The consequences could be obvious.

Let us not generalise and I believe that the very vast majority of local employers deal with their employees well and would not abuse of any such situations.

I will not go into the technicalities of the directive on the opt-out clause. Suffice it to say at this point that there are various categories of workers who are omitted from the effects of this directive and should thus not be concerned. Among these are self-employed, managers and workers in a family concern. This means that many of our SMEs' employees will really not be affected by the directive.

My position on the matter is that I tend to advocate for leaving the status quo with the directive, improving on the protection afforded to employees to curb any possible abuses and implementing it with a measure of flexibility in order that local employers will cope well with the obligations it imposes on them. But, in principle, I am in favour of the opt-out clause and all the protection afforded to the employee in its implementation.

The regulation clearly stipulates that an employee shall be deemed to have been unfairly dismissed if his job is so terminated because he has refused to comply with some requirement which the employer imposed or proposed to impose, it being in contravention of the regulations, or because he refused or proposed to refuse to forgo a right conferred on the employee by these regulations and the employee may initiate proceedings before the industrial tribunal for unfair dismissal.

Moreover, the regulations lay down that any person who contravenes or fails to comply with the provisions of these regulations will be deemed to be guilty of an offence and liable, if guilty, to a fine.

The law does provide a level of protection to the employee. The unions should be fully aware of this and it is now up to the employee to make use of the tools provided by the EU.

But the law does not only place responsibilities on the employer. It also, in more than one way and starting from the raison d'etre of the regulation itself, safeguards the employer's rights.

After all, a healthy working environment can only but prove beneficial to the same employer.

Within this context, I propose that the debate on the working time directive focuses on three particular issues, namely, the issue of health and safety at work, that of allowing a sizeable measure of flexibility in the way the directive is managed, thus avoiding unreasonable constraints on SMEs and employers in general, and, thirdly, focusing on how the law should help to make it easier for everyone to reconcile his/her work with family life.

If we manage to achieve these objectives, we will all gain. This is what we should work for - this is what we shall attain.

Dr Spiteri Bailey is a PN candidate for the European parliament elections.