BECTU response to UK Working Time Regulations proposed amendments

20 July 1999

1. I write on behalf of BECTU in response to the consultation on the proposed amendments concerning unmeasured working time and records for opted-out workers. We are a union representing large numbers of both freelance and staff workers, many of whom could potentially be adversely affected by the proposals. We regret the short time allowed for consultation.

2. Our initial and strongly-held view is that the amendments are ill-conceived and should be withdrawn. We question the assertion about 'the effect the Regulations are having on business' and the consequent desire 'to relieve some of the administrative burdens'. We have seen no public verifiable evidence that the Regulations impose any excessive burdens on business. To the contrary, we believe that the uncertainties and resulting disputes following the introduction of the amendments are likely to be far more of a burden for employers.

   Unmeasured Working Time (UWT)

3. The extension of the UWT derogation to a new category of worker for whom part of their time can be designated as UWT will cause wholly unnecessary uncertainty for many of our members and could lead unscrupulous employers to expect and demand increasing amounts of extra, unpaid work.

4. Among our freelance members working on film and television production (eg feature films, TV dramas and series), long working hours and (qualified) opt-outs are already the norm. Many such workers are forced, given the pressures of an industry that has to a large degree been casualised, to agree to working weeks of 60 or even 72 hours. In a number of cases, however, workers are already under pressure to work still longer hours to fulfil the needs of the production. The danger of this amendment is that employers will build in and strengthen an expectation that such work be done (with no additional payment or entitlements) as voluntary UWT over and above contracted hours.

5. For example, there a number of occupations with 'head of department' responsibilities for the various crafts involved in a film or television production e.g. art department, design, costume and wardrobe, hair and make-up, construction managers, production managers, assistant directors. Such workers have to work throughout the 'shooting day' or 'camera day' but have additional responsibilities e.g. to prepare for the following day. They have discretion as to exactly when to undertake such work (e.g. prior to the shooting schedule; at the end of the shooting day) but have no discretion overall since things simply have to be in place for the next day's shoot.

6. The amendment is dangerous for such workers who have discretion at the micro level as to working longer hours, but absolutely no discretion at the macro level since they are subject to the overall demands of the project. We are absolutely clear that they are not UWT and should therefore have the full protection of the regulations. However, neither the amendment nor the guidance is clear or specific enough to prevent unscrupulous employers from seeking to make use of it. The end result could be to place even greater pressure on workers who in our view already work excessively long hours.

7. Similar problems could affect a number of staff members, especially in the broadcasting sector. Our members have already experience problems of interpretation at the initial introduction of the Working Time Regulations. For example, some broadcasting employers sought to argue - ultimately unsuccessfully - that grades such as producers were autonomous decision takers controlling their own working hours.

8. In parallel to the freelance example mentioned above, this would be true only at a micro level and not at a macro level. A producer, working on a commissioned production may indeed have the freedom to choose to work his/her 12-hour+ day on a Saturday and take a Sunday off or vice versa. The brutal fact remains that he/she has to work one of those days because of the severe time and budgetary constraints now common throughout broadcasting.

9. We could accept that if a working producer were promoted to 'act up' for a fixed period (e.g. to a senior executive post), they might be appropriately designated as falling under the UWT derogation for that period. However, we believe that for the individuals described above, who are subject to the general, often prevailing demands of the production schedule, designating part of their time as UWT is wholly inappropriate. We anticipate, unfortunately, that the amendment will again lead some employers to argue that for these staff members, a degree of UWT is and should be a regular expectation. This puts immense extra pressure on people already working very long hours. Winning Tribunal cases after the event would be no consolation.

10. The problem for all of our members - whether staff or freelance - is that they work to the often severe demands of project-based film and television production schedules. Whether or not some of them have a degree of control over their working hours at the margins, they are still subject to the demands of the project's schedule. Their discretion at this level is zero. They should not be placed under pressure to treat part of their time as UWT and yet we fear this will be precisely the affect of this amendment.

11. Finally, but very significantly, we believe that the amendment may not comply with the Directive. This permits a derogation only where 'the duration of the working time is not measured or predetermined'. This appears to relate to the whole of the worker's working time, not merely to parts of it. The discrepancy between the amended Regulations and the Directive in this respect renders them vulnerable to legal challenge.

    The 48 Hour Limit: Record Keeping

12. Given the culture of long-hours in the sectors in which our members work (notably film, television and theatre), opt-outs are common and record keeping assumes great significance.

13. Records of hours worked for opted-out workers are specifically needed for qualified opt-outs (e.g. an agreement to work for more than 48 hours but not more than 60-72 hours) and, in the freelance area, for calculating entitlements to paid holidays. Many such workers (e.g. freelances, production staff in broadcasting) are not on specific hourly overtime rates. If the record-keeping requirement is removed, there will be no need or incentive for employers to keep any such records.

14. For many such workers, 'opt-out' is a totally misleading term. They have, in effect, no choice but to work long hours; the economics of project-based television and theatre production require this. If, in a culture of de facto compulsory long-hours, the requirement for record keeping is removed, we foresee a significant threat to the health and safety of the workers involved and a significant counter-threat to employers of regular and expensive litigation on disputed cases.

15. The assertion that the authorities 'will be able to obtain any further information' to protect workers is wholly unconvincing. If records are not kept at the time, the prospect of retrospectively obtaining objective evidence in disputes over working hours seems small to non-existent. We will of course encourage our members wherever necessary to keep their own records. This places an unnecessary burden on them, although employers without contemporaneous records may then ironically find themselves at a disadvantage in some Tribunal cases.

16. Large parts of our industry run on long hours. Record-keeping is a small additional administrative task for any well-run company. We believe strongly it is a price well-worth paying, given the health and safety risks to workers who regularly work long hours. It is also, we believe, a necessary protection for employers - especially those responsible employers who are not seeking to exploit loopholes in the legislation. We have seen no objective evidence to support the assertion that such record keeping is an excessive burden and we remain totally unconvinced that the health and safety authorities have any ability to obtain the relevant information after the event. We can therefore see absolutely no justification for this amendment and urge its withdrawal.

    The 48 Hour Limit: Opting Out

17. A further and serious consequence of the amendments is that they have the effect of removing the requirement that the opt-out be in writing. This means that employers may seek to get round the Regulations on the basis of alleging that the worker had in fact agreed to work the particular hours and therefore the limit should apply. Indeed, it would be very difficult to show that where a worker has worked particular hours, he or she did not agree to do so. The amendment will seriously undermine the practical effects of the maximum weekly limit.

18. The removal of the requirement that the "opt-out" be in writing will mean that the Regulations are much more difficult to enforce and apply. Workers may not know that their employer claims that the limit does not apply to them. There will be evidential disputes as to whether an agreement has been reached. This is likely to lead to costly litigation and disputes.

19. The previous provision required that the worker must agree that the limit should not apply. The new requirement is merely for agreement that the worker shall "perform such work". This appears to mean that the limit will not apply to any worker who had agreed to perform particular work, without the worker agreeing specifically that the limit should not apply. This raises the possibility that an "agreement" may breached in circumstances where the worker is not aware of the limit or his/her rights under the Regulations.

20. Nowhere in the proposed Regulations or the covering letter from the Secretary of State is any reference made to the removal of the requirement for a written "opt-out". This amendment is a very serious weakening of the protection of the Regulations in a manner which may mean the Directive is not properly implemented.

21. This particular effect of the amended Regulations could be avoided by re-wording the amendment to Regulation 4(1) to read:-

    "4(1) - Unless his employer had obtained the worker's agreement in writing that this Regulation shall not apply to him, a worker's working time, including overtime, in any reference period which is applicable in this case should not exceed an average of 48 hours for each 7 days"

    Conclusion

22. In conclusion, and from the perspective of workers in sectors characterised by long-hours as a working norm, we see no advantage or justification in the amendments from a health and safety viewpoint, but a distinct danger that already vulnerable workers will be placed under even greater pressure to work longer hours without proper protection. We see no objective evidence of the alleged excessive burden on employers, whose self-interested claims on this respect are as unconvincing as they are predictable. We further believe that the amendments fail to comply with the Directive in some key respects and may be open to legal challenge. We urge you to withdraw the amendments.