Working Time Directive - BECTU response to European Commission White Paper on excluded sectors

3 September 1997

Our concern: the exclusion of the self-employed
1. BECTU notes and understands that the aim of the White Paper is to find the best means of ensuring the health and safety of workers excluded from the Working Time Directive. We note that the Directive itself indicates that it applies to 'all sectors of activity....with the exception of air, rail, road, sea, inland waterway and lake transport, sea fishing, other work at sea and the activities of doctors in training.' We further note that 'it may be necessary to adopt separate measures with regard to the organisation of working time' in the excluded sectors.

2. However, we are very concerned that the White Paper contains the statement - completely unqualified and without background context - that 'Self-employed workers are not covered by Directive 93/104/EC'. This, if taken at face value, would have negative and serious implications for many of our members, as well as for workers in other sectors. In contrast to the excluded sectors specifically listed, we do not believe this statement is directly based on the Directive itself and its contradicts our (and many others') previous understanding that the Directive does indeed cover the self-employed. This vital point needs clarifying especially given the imminent implementation of the Directive in UK law.

   A Directive for 'Workers' Not Just 'Employees'

3. We strongly believe - as stated in our comments on the previous Conservative government's proposals for implementing the Directive - that any attempted exclusion of the self-employed is a contradiction of the letter and spirit of the Directive. Throughout the entire preamble and text of the Directive, the term used for those to whom it applies is 'workers'. There is no single instance in which this is qualified in order to exclude the self-employed or freelances. The Directive, in our understanding, is intended to apply to 'workers' and not just to the narrower category of 'employees'.

4. Furthermore, the Directive is formally a health and safety measure and we can note that the British Courts have not sought to apply health and safety measures in a way so as to exclude the self-employed. The Framework Directive - related as it is to the Working Time Directive - includes in its definition of an employer, a person who has an 'employment relationship' with a worker, which again suggests a wider category than that of 'employee'.

5. The key point which we wish the Commission to recognise is that many workers who are formally self-employed (e.g. for tax and national insurance purposes) are still subject in a broad sense to supervision and control by those for whom they work. These workers are not independent entrepreneurs; their flow of work is not initiated by themselves but provided by others; they are subject to the conditions of the sectoral labour market in exactly the same way as other freelances who may happen to be 'employees' for tax and NI purposes.

6. All of these points are also valid for that sub-group of workers in our sector who operate one-person service companies. Those who do so may in fact work in the same grade and occupation as many other freelances who have not chosen to operate in this way. There is nothing to distinguish them in terms of the jobs they actually do.

7. All of those workers with whom we are concerned are involved in personally providing services. Given the context as described above, we believe that anyone working under a contract personally to perform work or services should be regarded as falling within the remit of the Directive. A relevant parallel in British law is the Employment Rights Act 1996, which, in section 230, defines a worker to include exactly this category of individual. Further precedents in British law are found in the remits of the sex discrimination and race relations legislation, which are deemed to include those who provide their services personally (even if they are formally 'self employed').

8. We therefore hope that the Commission will recognise these points and will accept that the definition of 'workers' covered by the Working Time Directive should be taken to include freelances and the self-employed (and, by the same argument, trainees and agency staff).

   The Audiovisual and Entertainment Sectors

9. While our overall views, as set out above, concern the general interpretation of the Directive, we also wish to draw the Commission's attention to the particular conditions in the sectors where our self-employed members work. We are particularly concerned with that part of the audiovisual sector - film production, television commercials and independent production for broadcast - where freelancing is endemic and permanent employment very much a minority status. The same points would also apply, however, for the self-employed in other areas such as theatre.

10. Our aim is to make clear that working hours is a key point of concern for these workers. Indeed it is our belief that it is precisely such workers, under strong pressure to work long hours, who the Directive is intended to assist. If the self-employed were to be excluded from the provisions of the Directive, some of those most in need of protection would be denied it. We, therefore, believe that the Commission should take particular note of conditions in the audiovisual sector and should ensure that the Directive is applied with the maximum scope in this area.

11. The labour market in film production, commercials and independent production for broadcast is overwhelmingly freelance, a significant number of whom will be self-employed for tax and national insurance purposes. Long hours are endemic, and a feature of many current contracts is that working hours are determined in an open-ended way by the 'camera day' or 'shooting day' - in other words the hours are framed by reference to the needs of the production and not to the individual.

12. The shooting day could be 10 hours (excluding any lunch break) but it will very often be even more than this. The actual working hours of many freelances are, however, significantly longer, and this should be a cause of concern. The excessively long hours are caused by the fact that many of the functions of film and television production require work prior to and at the end of the actual shooting day ('prep' and 'wrap' times). For grades such as assistant director, make-up, hairdresser, costume, wardrobe and runner this can mean a normal working day of as long as 16,17 or 18 hours, since they have t be on site and regularly working before, during and after the shooting day.

13. The evidence for this can be found both in our own detailed experience of audiovisual production and contracts, and in an extensive questionnaire survey of freelances conducted by BECTU in 1996. The survey indicated that 'The 72 hour week has become the norm for those who work closely to the camera' (i.e. to those subject directly to the 'shooting day'). It also showed that the grades referred to above, with prep and wrap duties, 'are regularly working an additional 20 to 30 hors beyond the 72 hour week and in a few cases this can be as much as 40 hours more'. There had been a clear rise in the spread of excessive hours compared to the previous freelance survey conducted in 1993.

14. Such practices are not the exception; they are the rule in this sector. Nor are they just a feature of low-budget productions with little significance in terms of audience or revenue. Major television drama series with household names will often work to this pattern. They are not one-off productions but can last for 9 months in production for a whole series - a very long period of time to be working on anything approaching the hours described above. To add a further twist, such productions will typically be crewed with a hybrid mix of broadcasters' own staff and freelances, with a mixture of categories throughout many of the grades or occupations involved. If the self-employed were excluded from the Directive, we could reach the absurd position of individuals doing identical jobs on identical hours - some of whom would be protected by the Directive and some of whom would not.

15. Given the widespread use of 'shooting hours' contracts, and freelances' imperative need to find work (their prospects of obtaining future engagements will depend on their presenting a full CV of recent work), there is little prospect of producers voluntarily changing practices or reducing hours. The needs of the production remain paramount. Without supportive legislation or regulation, workers in this area will continue to work excessive hours, to the serious detriment of their own health and safety. Even worse, if the self-employed as a whole category are excluded from working time legislation there will be a strong incentive for employers wherever possible to redesignate workers as self-employed or even to make workers redundant and re-engage them on a self-employed basis. The problems of excessive hours could be compounded precisely because of a particular interpretation of the Directive.

    Conclusion

16. We strongly urge the Commission to avoid any blanket exclusion of the self-employed from the provisions of the Working Time Directive. If this was allowed to happen, there will be serious and long term health and safety implications for workers in the audiovisual sector - who at present are relying on the implementation of the Directive in the UK to begin to set some reasonable parameters for their working time. We believe such an exclusion would follow neither the spirit nor the letter of the Directive and we urge a more considered definition of 'workers' to include freelances, self-employed, trainees and agency staff - especially in the sectors with which we are most concerned.