In the BBC we have specified in the Agreed Statement that the Broadcast derogation applies to staff directly involved in news gathering or news and current affairs programming (including on-line services), in the production of live radio and television programmes and in the production of recorded programmes where the scheduling of production is dictated by the availability of performers, suitable weather condition, the availability of studios or location facilities/resources and the availability of the event (e.g. sports events for future transmission, animal behaviour for natural history programmes). Staff who provide direct support to these programme making activities are also covered by the provision. In addition, staff involved in transmission, technical support and press offices where continuity is a requirement are covered.

In our discussion, you indicated that you would accept this interpretation provided agreement could be reached on the use of the opt-out and compensatory rest.

The Agreed Statement also refers to derogations relating to:

• Security Activities
• Unforeseeable Circumstances and Accidents
• Foreseeable Surges of Activity

At the NJC on 19th November 1998, the BBC agreed to remove the specific reference to the 'location' derogation from the Agreed Statement as the wording had given rise to questions about existing home base arrangements for OBs. We made it clear however, that this derogation is within the law and therefore we reserve the right in the future to apply the 'location derogation' should it be necessary, and we will advise the unions accordingly.

Within the Regulations, the application of the derogations is a matter for management decision, rather than a matter for negotiation. If we are not able to reach agreement on the 52 week averaging period, the BBC will continue to interpret the derogations in the way we have outlined in the Agreed Statement.

Individual Opt-out

As we have said throughout the NJC discussions, if the unions agree to a 52 week averaging period and the BBC applies the 'Broadcast' derogation as the Directorates intend, we will not be seeking wide use of the individual opt-out for staff on continuing contracts and where possible we would attempt to limit its use to the circumstances described in the attached document, unless otherwise discussed with the Trade Unions.

Without a 52 week averaging period, as explained in my last letter, we would have to withdraw the attached framework principles and rely much more heavily on the use of the opt-out on an individual basis in order to cope with the averaging restrictions.

Broadcasting is a 24-hour, events-driven business with peaks and troughs throughout the programme year. Some flexibility will always be needed to cope with the unexpected (eg a breaking news story or disrupted filming due to poor weather), and therefore the longer the averaging period, the greater the scope to manage working hours.

A reference period of 17 weeks (unless staff are covered by a derogation), without the greater use of the opt-out, may restrict our ability to deploy staff on certain activities/programmes, which may have been work they wished to undertake.

I hope the above clarifies the BBC's position.

Yours sincerely

Mark Waters
Head of Employee Relations, BBC

Enc. Individual Opt-out: Framework Principles (as tabled on 19/11/98)

Individual Opt-out: Framework Principles

The opt-out only removes the limit on the 48 hour working week, it does not remove the obligation to observe other provisions of the Working Time Regulations such as the need for rest periods and the daily and weekly rest breaks. Where an individual has signed the opt-out, the employer must record that individual's actual working time and hold these records for a minimum of two years.

Wherever operationally possible, the BBC will expect its employees not to infringe the 48 hour averaging limit. There could be circumstances where it may be appropriate to ask some individuals to sign the individual opt-out. For example:

• Some new starters for the first 17 weeks of their employment may be asked to sign where the averaging restrictions within the Regulations limits operational flexibility eg where a new starter is working alongside colleagues where there is a particular requirement to work more than 48 hours per week.

• Similarly some people on fixed term contracts of less than 52 weeks duration may be asked to sign (eg to cope with known short periods of intense activity such as drama shoots).

• There may also be peaks in workload and programme making activities where the opt-out may be required, which may arise towards the end of the reference period or, for example, from transfer situations. In situations of this kind staff would normally be asked to sign the opt out for a fixed period of time.

NOTE: THESE PRINCIPLES ARE SUBJECT TO AGREEMENT OF THE 52 WEEK AVERAGING PERIOD FOR THE 48 HOUR WEEK.

DRAFT AMENDED FROM THE VERSION TABLED AT THE WORKING TIME NJC ON 5 NOVEMBER 1998