Time could be up for the UK's 48-hour working week opt-out
Chris Dyer reports on the European Commission's plans to amend the working time Directive and the government's response
Across most of the European Union, weekly working time is restricted to a maximum of 48 hours, including overtime. This is not the case in the UK. Here, the government has made use of a provision in European law that allows it to disregard the 48-hour week maximum where workers agree to work more hours - generally known as the opt-out. But pressure is now building in the EU to tighten up on what some see as abuses of the opt-out, and there are moves to have it removed altogether. The UK government is preparing to fight a rear-guard action to defend its continued use.
The working time Directive (93/104/EC), adopted in 1993, sets out minimum requirements on the organisation of working time, with the aim of protecting against risks to workers' health and safety resulting from working excessive hours, insufficient rest or irregular organisation of work.
It was implemented in the UK by the Working Time Regulations 1998, which introduced minimum requirements for periods of rest, night work and paid annual leave, as well as limiting the maximum working week to 48 hours, averaged over four months. Some groups of workers, such as those in transport, were originally excluded, but the legislation has been amended so that nearly all employees are now covered (see Health and safety: the state of play).
Opt-out conditions
The conditions, set out in the Directive, under which the opt-out can be applied are that:
no employer requires a worker to work more than 48 hours over a seven-day period, unless it has first obtained the worker's agreement to perform such work;
no worker is subjected to any detriment by their employer because they are not willing to give their agreement to perform such work;
the employer keeps up-to-date records of all workers who carry out such work;
the records are placed at the disposal of the competent authorities, which may, for reasons of health and safety, prohibit or restrict the possibility of workers exceeding the maximum weekly working hours; and
at the request of the competent authorities, the employer provides information on cases where workers have agreed to work more than 48 hours over a period of seven days.
The Directive also required that the use of the opt-out was reviewed by November 2003. The European Commission published a document in December 2003 setting out its evaluation of the use of the opt-out and asking various EU bodies and the social partners - the European employer organisations and unions - for their views on a possible revision of the text of the Directive (see Commission reviews 48-hour week abuse).
Faulty guarantees
The Commission's evaluation of the UK's use of the opt-out is that legislation and practice do not offer all the guarantees set out in the Directive.
One concern is the general practice of asking workers to sign the opt-out at the same time as their work contract. This undermines the guarantee that no worker will suffer harm as a result of not being prepared to agree to being covered by the opt-out.
The Commission says that, "it is legitimate to suppose that if the opt-out agreement must be signed at the same time as the employment contract, freedom of choice is compromised by the worker's situation at that moment."
A further concern is that member states using the opt-out must ensure that employers keep up-to-date records of all employees who work in excess of 48 hours a week. The Commission believes that the intention of the legislation was that the employer should keep a record of the hours actually worked by employees who had signed an opt-out agreement, not just a record of workers who have signed a declaration.
The Commission argues that in order to know which workers exceed a 48-hour week, "It is of course necessary to keep records of the number of hours actually worked". Without these records, the Commission says, it is not possible for competent authorities to prohibit or restrict the option of working more than 48 hours.
But amendments introduced to the UK's Working Time Regulations in 1999 reduce the obligations to keep records to the simplest terms: only the agreement itself must be kept.
The Commission says this has led to a paradoxical situation where there may be records on hours actually worked by employees, subject to the 48-hour limit, but not for those who have opted to work longer hours, who are significantly more exposed to risks to their health and safety. It adds that there is an additional problem in that it is impossible to monitor compliance with other provisions of the Directive: "How can compliance regarding the daily rest period, breaks or weekly rest period be monitored if there are no records of the time actually worked by these workers?"
The Commission concludes that its evaluation identifies various problems in the implementation of the individual opt-out, particularly the conditions intended to ensure that the opt-out remains voluntary.
Its comments refer predominantly to the UK, which has been the only member state to make widespread use of the opt-out, but the Commission is also concerned about a growing use of the opt-out by other member states.
As a result of the European Court of Justice (ECJ) rulings in 2000 and 2003 that time spent on-call at the workplace by health professionals constitutes working time, France, Spain and Germany are now applying the opt-out from the maximum working week to their health sectors. Malta and Cyprus immediately began to apply it on a general basis when they joined the EU. Luxembourg uses the opt-out for its hotel and catering sector to cope with seasonal fluctuations.
Commission proposals
In May 2004, the Commission asked the social partners at European level to play their part in steps to revise the working time Directive. Agreement between the partners would be the first step towards amending the Directive. The Commission asked the partners to consider three specific areas:
the need to clarify the extent to which time spent on-call by health professionals should be counted as working time, following the judgements of the ECJ;
a suggestion from the Commission that the period over which the 48-hour weekly average is calculated should be extended from the current four months; and
various approaches "to tackle abuses in the application of the individual opt-out from the 48-hour week".
It immediately became obvious that the social partners agree on the need to amend the Directive, but not how.
The European Trade Union Confederation (ETUC) wants: on-call hours to be recognised as working time; to retain the limit on extending the four-month reference period for calculating the average working week, except by collective agreement; and the removal of the opt-out from the Directive.
The employers' organisation, the Union des Industries de la Communauté Européenne (UNICE) wants:
only time actually worked considered as working time;
the reference period extended to 12 months, with a possibility to extend it beyond 12 months by collective agreement; and
abuses of the opt-out, where they exist, treated by compliance measures at member state level and not by removing the opt-out.
UNICE says it sees no prospect of negotiations.
If the social partners don't reach an agreement within the nine months allowed for negotiation, the Commission is likely to propose a new version of the working time Directive1.
It says that in addition to the existing categories of "working time" and "rest time" set out in the directive, it will introduce a third category of time to cover inactive on-call time and will clarify the arrangements for rest-periods after time spent on call. The Commission is also likely to propose extension of the reference period over which the average working week is calculated.
As regards the opt-out, a proposal from the Commission will be based on four ideas, either separately or in combination:
to strengthen the conditions under which the individual opt-out can be applied to ensure it is truly voluntary;
to allow exemption from the maximum weekly working hours on the basis of collective agreements, or agreements between the social partners;
to allow exemptions on the basis of collective agreements or agreements among social partners, but keep the possibility of an individual opt-out in the absence of such agreements and for undertakings without worker representation; and
to phase out the individual opt-out as soon as possible and, in the meantime, tighten the conditions of its use - an approach proposed by the European Parliament.
DTI consultation
In response to these expected proposals, the Department of Trade and Industry (DTI) has launched a consultation looking into long working hours and the way the individual opt-out operates in the UK2. The DTI's consultation does not set out any proposals, but it does offer ideas and options on which opinions are invited (see box 1 ).
The government strongly supports the retention of the individual opt-out, which it says has particular significance for two reasons:
it preserves labour market flexibility; and
it recognises the wide use of individual contracts of employment in the UK, which place a value on individual choice.
Announcing the consultation employment relations minister Gerry Sutcliffe said: "I have made our position on the retention of the opt-out to the 48-hour weekly limit very clear. It is important that we protect workers from having to work more than 48 hours a week, but equally important that we enable those who freely choose to work longer hours to do so."
"The DTI gets many letters from workers asking us to keep the opt-out, but some parties have raised concerns that some people are pressured into signing the opt-out. Such action is illegal, as the opt-out must be signed voluntarily under current employment legislation," added Sutcliffe.
"But we are open to ideas on how the operation of the opt-out can be improved - that is why we are seeking views now, so that they can be taken into consideration as we move forward with the European Commission's review of the working time Directive."
Because of the low level of union representation and collective agreements in the UK (30% of the workforce are union members and 35% are covered by collective agreements), the government does not believe it would be fair for the opt-out to be available only when authorised by collective agreement. This would mean the majority of employees and businesses would no longer have the opt-out available to them.
The government is happy for other member states to be given the possibility of allowing the opt-out by collective agreement, but says this must be in addition to, not in preference to, the individual opt-out.
Responding to the DTI's consultation, CBI deputy director-general John Cridland, said: "Claims of widespread abuse are wildly overdone. They should not be used as an excuse to deny UK employees and companies this vital freedom. Businesses want to stamp out abuses that do exist. They undermine the Regulations and put law-abiding firms at a competitive disadvantage."
But TUC general secretary Brendan Barber said: "It's hard to take this consultation seriously. It is clear that the government has made its mind up to resist an effective crackdown on Britain's long-hours culture. The government appears to have dismissed the views and research of employee organisations in favour of a sample of letters carefully selected from its mailbag. The government should stop defending the indefensible and end the UK opt-out of the 48-hour working week."
1 "Second phase of consultation of the social partners at Community level concerning the revision of Directive 93/104/EC concerning certain aspects of the organisation of working time", website: europa.eu.int/comm/employment_social/labour_law/index_en.htm.
2 "Working time - widening the debate. A preliminary consultation on long hours working in the UK and the application and operation of the working time opt-out", June 2004, www.dti.gov.uk/er/work_time_regs/index.htm. Responses and enquiries should be made to Tracy Hudson, Working time team, Employment relations directorate, DTI, 1 Victoria Street, London SW1H 0ET, tel: 020 7215 5925, email: tracy.hudson@dti.gsi.gov.uk, by 22 September 2004.
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Timing of agreement - the law could be changed to make it unlawful for an employer to include an opt-out clause in an employment contract and to require a delay before an agreement to work long hours can be reached. Time limited opt-out - after a certain time, such as one or two year, the workers' agreement would automatically expire and unless the agreement was renewed, the worker would no longer be able to work more than an average of 48 hours a week. Cap maximum hours - workers who agreed to work long hours would be able to average more than 48 hours a week, but would then have a higher limit, either a maximum number of hours on average, or a maximum in any one week. Risk assessments - businesses with workers who have agreed to work long hours could be required to focus on any risks these might entail and, if necessary, to form a plan to minimise those risks. Health assessments - the system under which night workers must be offered a health assessment could be extended to all long-hours workers. Record keeping - require records of the hours worked by long hours workers to be kept. Awareness campaigns - look at ways to increase workers' awareness of their working time rights. Good practice guidance - the government could work with employers and trade unions to agree some good practice guidance on either just long hours or on the wider issue of choice in working hours. Code of practice - although guidance could form the basis for helping workers adopt good practice, a code of practice has more force. It would be agreed between employers and trade unions, and would be a template against which employers could assess their actions and to which they could turn for ideas. |
