Implementation of the Working Time Directive: BECTU response to the UK public consultation

7 May 1998

BECTU welcomes in broad principle the Government's measures to implement the Working Time Directive. We see these as a very significant improvement on the flawed proposals put forward by the previous Government. We further welcome the announcement of October as the date for the Regulations to come into force at long last.
Our welcome in broad principle does not mean that we do not have specific comments and criticisms of the Regulations. As a union representing significant numbers of both permanent employees and those on fixed term/short term/freelance and casual contracts, we operate in a very diverse sector of the labour market, with many specific features not characteristic of the labour market as a whole. We therefore have a number of particular concerns which are covered in our response. We focus on these, to the exclusion of some more general issues which are highlighted by the TUC, among others.

DEFINITION OF 'WORKER' (REGULATION 2)
Our underlying concern on this issue is that outside of those on permanent or open-ended contracts, there is in our view a lack of clarity and inclusiveness in the definition of those who fall within the remit of the Regulations. Our own starting point is the Directive itself, which in its preamble states without qualification, that 'The completion of the internal market must lead to an improvement in the living and working conditions of workers....as regards in particular the duration and organisation of working time and forms of employment other than open-ended contracts, such as fixed-term contracts, part-time working, temporary work and seasonal work'. This indicates to us a clear presumption that as many individuals as possible in non-permanent or atypical working arrangements should be included.
The Regulations and Consultation Paper together have a number of separate references to the meaning of 'worker' -not all of which seem consistent and some of which could cause confusion. We believe that what will count in reality is solely the wording of the Regulations (and the Directive) themselves. We therefore welcome the wording of Regulation 2, which would include all individual freelances, regardless of tax status (i.e. whether PAYE or Schedule D).
We wish, however, to clarify the working of our industry in some respects - especially the freelance labour market in film and television production. We believe that clarity on the position of freelances is essential in order to implement the spirit of the Directive in practice. In particular, we would point out that the vast majority of freelances operate in a way in which they 'perform personally any work or services' for the other party to the contract. In doing this, individuals may, from time to time, supply equipment together with their labour; they may invoice for payment; and they may be registered for VAT. None of these factors in themselves should in our view prevent such individuals from qualifying as 'workers' and we would certainly be prepared to challenge adverse interpretations through Tribunal cases.
These three factors are a product of the casualised nature of the industry and should not be taken in themselves as indicating that someone is 'in business on their own account'. The supply of equipment is essentially the individuals' 'tools of trade' in a broad sense. Given the sophisticated nature of contemporary film and television production this can encompass items which are expensive and complicated (e.g. camera equipment) but which may not be supplied by the production company for which the individual is working. This is not a sign of being in business - merely of providing the wherewithal to do the job required.
The practice of invoicing is widespread. Individual freelances will typically move rapidly between engagements for different companies. They may well not be paid in full until after they have left the engagement in question and moved on. Presenting an invoice is often the only practical way an individual freelance can indicate, for their own protection, the amount owing for their labour. The apparatus of wages departments and regular wageslips associated with permanent employment is simply not present. Again, therefore, this is not a sign of being in business - merely an unavoidable consequence of working in an overwhelmingly casualised labour market.
Finally, registration for VAT is significant for tax purposes, but does not, in our view, necessarily constitute a sign of being in business. Individuals may register for VAT without operating through a service company, and purely to deal with earnings derived from their personal labour. There is no reason, in such cases, to doubt that the individuals concerned continue to be 'workers' for purposes of the Regulations.
Clarification may be helpful in two further aspects. Firstly, some freelances may, on being engaged by a production company, be asked if they can obtain the services of other colleagues in closely related occupations (e.g. members of a camera crew). This could be, for example, because individual camera-persons have a particular style and way of working and therefore work best when regular fellow 'crew members' - who they know and have worked with before - are available. It could also be because the production company's knowledge of the freelance labour market is less precise and up-to-date than that of individual freelances (who may be in a better position to know who is available with relevant experience and adequate skills). The time and the infrastructure behind appointments to permanent posts (e.g. advertisements, shortlists, formal interviews) simply does not exist.
We believe, therefore, that the practice of individuals recommending or 'supplying' colleagues to a production company is in many cases simply a product of the casualised labour market rather than a sign of being in business. These individuals are not sub-contractors in the usual sense - once the engagement begins, all significant control over the project remains in the hands of the production company, and the company may pay all crew-members directly.
Secondly, although we accept that service companies as a category do not fall within the definition of 'worker', we nonetheless maintain that some such arrangements are compatible with it. We refer in particular to situations in which an individual may operate as a service company (e.g. for tax reasons) but where the only activity of the company is to personally provide the labour of the individual concerned. The existence of the company does not alter the fact that the individual is simply and solely offering their own labour for hire in the freelance labour market. This does not place them, in our view, in the 'business' category which falls outside the scope of the Regulations.

DEFINITION OF 'WORKING TIME' (REGULATION 2)
We share the widespread and continued uncertainty about a number of issues, which remain unclarified by the Regulations, including the position, for example, of travel time (excluding ordinary commuting), on-call time and unpaid layoffs in mid-engagement. We recognise that the Regulations encourage the resolution of difficulties through agreements between employers and workers. Nonetheless, a more proactive formula in the Regulations might prevent unnecessary subsequent litigation.
We are disappointed that time for trade union duties and activities, for health and safety representatives' duties and for relevant training has not clearly and unambiguously been identified as working time. We hope that the Regulations can be amended to clarify this, and we believe that European case law relating, for example, to equal pay, points in the direction of inclusiveness.

MAXIMUM WEEKLY WORKING TIME (REGULATION 4)
We could see no reference in the Regulations or Consultation Paper to the ending of the 'opt outs' by November 2003. Given the agreements relating to the original Directive, we assume that this deadline is still in place. We would welcome explicit recognition of this.
We have a number of concerns on the proposed opt-out arrangements i.e. agreements by individual workers that the maximum 48 hour week should not apply to them. Firstly, individual opt-out agreements may well be conditional rather than open-ended e.g. agreement to work over 48 hours but not more than 55 hours per week. What, exactly, is the enforcement mechanism if an employer, in these circumstances, requires an individual to work 60 hours per week? We would welcome clear and explicit clarification that enforcement mechanisms are available not just in relation to the existence of the opt-out per se, but to conditions that my be attached to any such opt-out.
Secondly, it is an unfortunately growing practice, in our freelance labour market, for there to be contracts with unspecified hours. The production company's rationalisation for this might be that shooting schedules were uncertain and that under tight financial pressures decisions on necessary hours could only be taken while the job was under way. Individual freelances - whose ability to find future work will depend on obtaining current work and adding to their CV - will often feel they have no choice but to accept. Our concern - leaving aside our opposition to such contracts in industrial terms - is that such contracts could be taken in themselves as 'opt-outs'. We believe this would be wrong and that agreements under 4(3) should only be valid if they explicitly specify that they are opt-outs by reference to these Regulations.
Thirdly, just as individual freelances can find themselves under economic pressure to sign unfavourable deals, so can any worker find themselves under unacceptable pressure to agree to an opt-out from the maximum 48 hour week. We believe that such decisions are very significant for the individuals concerned and should not be taken lightly. We would therefore suggest that anyone contemplating an opt-out agreement should have the right to seek independent advice - in line with the practice in relation to 'compromise agreements' in other areas of employment law.
Finally, given the serious health implications of excessive working time, we believe that safety representatives should be given the right to inspect the employers' records in relation to opt-outs as set out in Regulation 4(10).

NIGHT WORK (REGULATIONS 5-6)
Despite the precision of definition relating to night-work, we can again foresee particular problems in the freelance labour market. As indicated above, decisions on shooting schedules and therefore working hours are often still not taken at the point at which a worker accepts an engagement - indeed shooting hours decisions may only be taken 'on the day' in the light of weather conditions, availability of performers etc. Therefore, individuals may not know, sometimes until after the event, whether or not they fall into the category of 'night workers'. We believe that adequate protection for such workers is still essential and should be provided for.
We have a further two points in relation to health assessments and transfers:

- we believe that protections and remedies should be available to discourage and prevent workers being unfairly screened out and victimised from obtaining or undertaking such work.
- we believe that individuals should be entitled to use their own medical advisers for the health assessments under 6(1).

WEEKLY REST (REGULATION 10)
We note with concern that Regulation 10(6) would, in certain circumstances, allow a daily rest period to be included within the minimum weekly rest period (which would become 24 hours rather than 24 hours plus 11 hours). While recognising that the text used is derived from the original Directive, we nonetheless believe that clarification would be helpful, and that the 'objective etc. conditions' should be defined in as precise and limited a way as possible.
In this respect we note that paragraph 106 of the Consultation Paper indicates that 'work organisation conditions' should be 'relevant' to justify any modification of the entitlement. We see no reason why this clarification could not be included in the Regulations themselves.

REST BREAKS (REGULATION 11)
While recognising that the minimum 20 minute provision is a definite improvement on the previous Government's proposal for 5 minutes, we would still emphasise that this is still a very short amount of time for what could be a worker's only meal break within a lengthy working period.
As well as seeking an increase in the minimum from 20 minutes (and/or a shorter threshold time than 6 hours), we would make the following points:

- The trigger point for entitlement to breaks should clearly and unambiguously be calculated from the start of the shift/work period concerned and not from the last break (thus including the period of the break itself).
- For periods of lengthy working time, a graduated approach would be appropriate i.e. entitlement to any break beyond the first break should rest on a shorter threshold time (i.e. less than the current 6 hours provision) and should be for a longer break period.

ANNUAL LEAVE (REGULATIONS 12-14)
We question very strongly the justification for the 3 months service qualification for entitlement to annual leave. Article 7 of the Directive includes no such qualification and simply states that 'every worker is entitled to paid annual leave of at least four weeks'.
We cannot overemphasise that in an industry such as ours, with so many workers on freelance and short term contracts, the 3 months requirement will simply result in a very substantial proportion of the workforce having no holiday entitlement whatsoever under the Regulations. We believe this is entirely unjustified and contrary to the intention of the Directive. Given the significance of this for our members, if the Regulations remain unamended we will have no alternative but to give serious consideration to a legal challenge on this point.
To clarify further, many of the freelances concerned will work on a regular basis but for a range of different companies. Their need for annual leave is as great as that of permanent employees. It therefore seems grossly unfair that the Regulations would seem to deny them this. The labour market in this sector is such that the opportunity to work in excess of 3 months for a single employer is extremely limited, and yet the widespread practice of lengthy working hours is such that annual leave is all the more necessary. We strongly urge the Government to reconsider this point.
Subsidiary points of clarification are as follows

- Regardless of any limit on entitlement, the Regulations should clearly and unambiguously provide that the relevant leave year should take account of the first 3 months of employment i.e. leave should be accruing during the first 3 months even if entitlement to take it is not triggered until the 3 month point is reached.
- Further clarification would be helpful on the entitlements of workers with irregular or varying hours. In particular, a number of our members work on rotating shifts, with each shift having a different pattern of hours. Leave for such workers might best be defined in terms of shifts rather than weeks.
- We would contend that if annual leave is to be meaningful, workers ought to have the right to take a minimum amount (e.g. 2 weeks) in a block. Without this, it might be possible for an employer to require a worker to take his/her leave entirely in 1 or 2 day periods - which would contravene the spirit and intention of the Directive.

EXCLUDED SECTORS (REGULATION 16)
We note that a specific group of workers in broadcasting (i.e. drivers and rigger-drivers concerned with broadcasting transmissions e.g. for outside broadcasts) are apparently already excluded from the provisions of the Large Goods Vehicle Directive. To the extent that this is the case, we believe it is essential that such workers should not simultaneously be excluded from working time legislation under Regulation 16(a)(i). Such workers should, in our view, be treated the same as other broadcasting workers (and to the extend that a continuity of service derogation then applied, compensatory rest would still be available).

UNMEASURED WORKING TIME (UWT) (REGULATION 18)
Many workers in our sector may not have precisely measured weekly/monthly hours, but are nonetheless under flexible hours contracts (e.g. annualised hours or similar). We take it that such arrangements still clearly fall within the Regulations and should not be taken as examples of UWT.
A further aspect of our sector is that some workers (e.g. producers, directors, researchers, location managers etc.) may not have specifically measured hours of work but are nonetheless subject to overall deadlines i.e. production companies or broadcasters will require that a certain amount of work (e.g. production of a television programme) is to be undertaken by a stated deadline - even though the precise hours worked are not specified. We would argue that these are clearly examples of working time which is predetermined by the employer and not determined by the workers themselves.

CONTINUITY OF SERVICE/PRODUCTION (REGULATION 19)
We note that Regulation 19 A is simply transcribed from the Directive. We believe, however, that further clarification is necessary. It would be devastating, for example, for freelances in film and television, if this paragraph were to be open-endedly applied to them. Given the nature of their labour market, they have no choice but to take work wherever it is available and many will routinely have periods working away from home. Additionally, within a given engagement, they may be sent to work at a number of different locations which may be distant from one another.
We believe that derogating freelances on these grounds is contrary to the intention of the Directive. In our view, the provision in 19A is primarily aimed at those workers, for example on oil rigs, who have a regular working pattern of periods away from home followed by periods (which may include paid time-off) resting at home. Freelances work to a much more irregular pattern, with no regular rest periods, no paid time-off and the prospect of working away at short notice. It is surely all the more important, in these circumstances, to ensure that the Regulations apply wherever possible, so as to ensure adequate periods of rest.
An additional point is that - since home location is not necessarily a significant factor in obtaining work - freelances on any given engagement may include people near enough to commute from home and others staying away from home. If 19A allowed a derogation purely on the basis that individuals worked away from home this could lead to a large number of anomalies whereby colleagues working similar hours in similar jobs would be treated completely differently (to the point of being covered or not by the Regulations).
On a separate issue, we note that while 'radio, television, cinematographic production' is included, as in the Directive, as a special case under which aspects of the Regulations may not apply, this nonetheless refers only to the precise circumstances of each individual and not to those workers as a broad category.
We further note that European case law relating to health and safety indicates that this cannot be simply subsumed or overridden by commercial considerations. By the same token, we therefore believe that any need for continuity should be demonstrable on objective grounds and not simply justified by an employer's claim of commercial convenience.

WORKFORCE AGREEMENTS (REGULATION 21, SCHEDULE 1)
Apart from any general reservations about such agreements, we have a specific concern about their application to a sector involving freelance/short term contract labour with a high turnover. It would be conceivable, but surely inappropriate, that an employer could reach a 'workforce agreement' with a group of freelances engaged on a given date and then seek to apply this to any future workers in the same occupational categories - even though very few if any of them had been party to the original agreement. We believe that in the absence of a constant independent factor (such as trade unions in the case of collective agreements), workforce agreements should not, in sectors with high labour turnover, be allowed to bind future workers who have had no opportunity for consultation or input.

COMPENSATORY REST (REGULATION 22)
The great weakness of this provision (and therefore of the derogations in general) is that in their present form the Regulations give no adequate guidance on implementation:

- Within what period should such rest be provided (especially in the case of freelance/short term contract workers who will not be engaged beyond a given date)?

- What counts as an 'equivalent' period and as 'compensatory' rest and who can decide this?
We urge further clarification on these points. Leaving interpretation entirely to Tribunals is extremely unsatisfactory. Just as workers will be left in confusion as to their entitlements, so will employers be left in confusion as to their legal obligations.
Even vaguer, we suggest, is the provision in 22(b) for 'appropriate protection' as an alternative to compensatory rest. What does this mean and how might it operate in practice? We appreciate that this term is transcribed from the Directive, but further guidance and clarification is surely necessary on this point.

RIGHT NOT TO SUFFER DETRIMENT (REGULATION 29)
We fully support the inclusion of Regulations on detriment. We would point out, however, that as currently written, the Regulations appear to have a major omission. This concerns detriment in the sense of not obtaining or being offered work in the first place. Employers - based on shared knowledge of individuals asserting their entitlements or, for example, refusing individual opt-outs - could simply choose not to engage such individuals (perhaps with no stated reason).
This is not a hypothetical concern, but one based on practical experience with certain employers in the freelance labour market, where individuals with a 'reputation' are not disadvantaged while in work, but are simply not offered engagements in the first place. Their detriment is as serious as that of a permanently-employed worker who is penalised for asserting their rights, yet it is not clear what, if any, redress they would have under the current Regulations.
We urge that the section on detriment be amended to offer redress in such situations - perhaps borrowing from the examples of legislation on victimisation for trade union membership or on sex/race discrimination.

ENFORCEMENT
Finally, as a general observation, we hope that adequate resources will be made available both to the health and safety authorities and the employment tribunal system in order to ensure the proper application of the Regulations.

CONCLUSION
We reiterate that, despite our many requests for further clarification and points of criticism, we continue to welcome the implementation of the Working Time Directive in broad principle. It is because we take the proposed Regulations so seriously that we wish to ensure they are drafted as wisely and relevantly as possible.
We are equally concerned for the interests of all our members - be they permanently employed or freelance. If there is a preponderance of points in our submission relating to the latter, it is because of the inherently greater difficulties in applying working time legislation to a casualised labour market.
We urge in particular that as inclusive as possible an approach be taken (in terms of deciding who counts as a 'worker' and of limiting when derogations apply), that the 3 month service qualification for annual leave entitlement is removed and that the provisions on compensatory rest and detriment are re-examined. We would welcome particular reconsideration in these areas when drafting the final Regulations.

Last updated 2 June 1998

Implementation of the Working Time Directive: BECTU response to the UK public consultation

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