BECTU's response to UK Department of Trade and Industry consultation on Part-Time Regulations

21 January 2000

1. BECTU's views on aspects of the draft Regulations as they could particularly affect our members are set out below. This does not attempt to be comprehensive and other general points which we would support may well be made by the TUC, among others. We, of course, welcome in principle the transposition of the European Framework Agreement into domestic legislation. We fear, however, that in their present form the draft Regulations fail to implement fully the EU approach to this group of atypical workers.

Scope: 'worker' or 'employee'

2. The Regulations are framed entirely in terms of 'employees' who work under 'a contract of employment'. This, in our view, falls short of the expressed intention of the Framework Agreement to cover 'part time workers, who have an employment contract or employment relationship', and fails to implement this part of the EU's programme for extending employment protection rights to atypical workers. More particularly, it runs contrary to the Government's own stated aim of a more inclusive approach to employment protection as illustrated by the move away from 'employee' to 'worker' as the subject of other recent legislation such as the Employment Relations Act, the Working Time Regulations, and the Minimum Wage Act.

3. As a union with many freelance and casual members - including both PAYE and Schedule D workers - this point is of great interest to us. We strongly believe that individual Schedule D freelances and casuals - who are not in business on their own account - should not be excluded from the benefit of these Regulations. They typically operate under the same collective agreements, conditions and practices as their PAYE colleagues and will often work literally side by side. They are not - given the casualisation of much of the media labour market - necessarily freelance by choice. We therefore urge the Government, as in other recent employment legislation, to replace the term 'employee' with 'worker', thereby ensuring that atypical workers can potentially benefit from the Regulations, in line with the original EU intention.

4. We note with approval that there appears to be no exclusion of casual workers.* We have a significant number of casual members in theatre, BBC World Service and the leisure sector, many of whom are 'regular' casuals. We take the view that a casual exclusion would simply provide employers with a strong incentive to push even more workers into the casual category. We welcome the absence of such a possibility.

Defining 'weekly hours'

5. We note that the draft Regulations refer to an 'average number of hours', with no attempt to define a reference period for calculating the average. Since the hours of some part-time workers can vary from week to week, we believe this will lead to considerable problems of interpretation.

6. Our own preference would be to follow any reference periods which are in effect determined by collective agreements (eg in annualised hours contracts) and, where there is no such agreed period, to require a minimum 12 week reference period. This will ensure that 'average' hours are fairly determined, with a time frame long enough to rule out untypically low (or indeed high) results.

Defining 'part time'

7. The draft Regulations appear to link the definition of 'part-time' to 'weekly hours'. This departs from the Framework Agreement, which in clause 3.1 defines as part-time someone 'whose normal hours of work, calculated on a weekly basis or on average over a period of employment of up to one year' are less than those of a full-time worker.

8. This is significant for us, since we believe that a number of our freelance members would rightly fall within the definition of part-time in the Framework Agreement, but not necessarily within the Regulations as drafted. In particular, we can refer to freelances who regularly work for particular companies (eg broadcasters such as the BBC). In any given year they may work for the same broadcaster on a number of separate engagements - interspersed with unemployment or work for other companies. Averaged over a year, they are part-time compared to staff, whereas in any given working week, their hours may be similar.

9. We would argue that they are part-time within the spirit and intention of the Framework Agreement - based on an annual rather than a weekly reference period. This reflects their pattern of a number of separate engagements, within which they may work full hours but between which they work no hours at all. They are just as much part-time, in our view, as the more conventional definition of permanent staff on less than full-time hours. This is particularly relevant because such freelances - who can have a regular relationship with the company concerned - work side by side with comparable full-time staff while enjoying, in some respects, inferior conditions (eg regarding access to pension, sick pay, holidays).

10. We believe the Framework Agreement is intended to cover such workers and we urge the Government to amend the Regulations accordingly.

Full-time comparators

11. We note that the draft Regulations deal with the absence of in-house full-time comparators by referring to comparators 'at a different establishment'. This does not, in our view, fully resolve the problem.

12. We have a number of categories of members (eg 'front of house' workers in theatres) for whom there may be virtually no full-time comparators either in-house or elsewhere, since the jobs are typically done on a part-time basis. Moreover, we believe that the appropriate comparators are not necessarily workers at other theatres (who may be on different terms and conditions) but full-timers (albeit in some different occupational categories) at the same theatre (and therefore subject to the same collective agreements).

13. We accept that part-timers cannot claim as comparators any full-timer at their workplace. However, we believe that the definition of 'broadly similar work' should be applied flexibly enough to find in-house comparators for such workers. It will be more in keeping with the intention of the Framework Agreement for such workers to be able to gain access on a pro-rata basis to terms and conditions applying at their own workplace than to those of difficult-to-find and not closely comparable workers elsewhere.

Pensions & redundancy

14. We welcome the removal of discrimination in access to pension schemes, the calculation of pension benefits on a pro-rata basis and the requirement for part-timers to be treated no less favourably for redundancy payments. However, we have a further specific concern in this area.

15. A number of workers may, during the course of their employment with a company, transfer from full-time to part-time work (eg women raising children). Despite long previous periods of full-time work, they may find that their current part-time status is all that determines (even if suitably pro-rata) their pensionable pay and redundancy pay entitlements. In our view, the calculation of such entitlements should take account of the proportion of previous service which was full-time rather than part-time, and adjusted upwards accordingly.

Conclusion

16. We urge reconsideration on all the issues raised above. In particular, we seek a change of approach on the scope of the Regulations (ie replacing 'employee' with 'worker') and on the definition of 'part-time' (which should rest on broader working patterns rather than the position within any given week). We believe that the amendments as advocated above will bring the Regulations more in line with the EU approach to atypical workers and with the Government's own aim of a more inclusive approach to employment protection legislation.