BECTU submission to the EC on the Working Time Directive review of individual opt-out

8 October 2002

BECTU submission to the European Commission on the Working Time Directive review of individual opt-out.

1. BECTU is the British trade union for workers in the audiovisual and live entertainment sectors. We have a longstanding concern about the UK Government's application of the Working Time Directive - especially because of the implications for the many thousands of 'atypical workers' who we represent.
2. Our aim in this submission to the European Commission is to present evidence on the operation of the opt-out (ie the right for individuals to opt-out of the 48 hour weekly working time limit). We are aware the Commission is reviewing the operation of the opt-out and that by November 2003 the Council of Ministers will take a decision on whether the opt-out - which of course has only been applied in the UK - should be extended. We are also aware that a general study of the operation of the opt-out in the UK has been commissioned. However, because of our particular concerns about our own members' experience of the opt-out, we wish to provide some direct and specific evidence for your consideration.
3. We can make clear from the start our strongly-held view that the opt-out should not be extended and our wish for it to be removed from UK law at the earliest possible opportunity. This is, of course, also the view of the TUC.

The impact of the opt-out on BECTU members

4. Our concern centres on the operation of the opt-out in relation to our freelance members working in film and television. They work for broadcasters and for independent production companies across the whole range of audiovisual media including broadcast television, feature films, commercials, corporate productions and facilities houses. A particular feature of the British media is that a minimum of 25% of broadcasting hours (within specified genres) have to be commissioned externally rather than made directly by the broadcasters.
5. Essentially, the British audiovisual media relies strongly on this large pool of freelance labour (as well, of course, as the remaining permanent staff employed by the broadcasters). For all but an elite of workers, there is an inherent inequality in the relations between individual workers seeking engagements and the companies who have this large freelance labour pool to draw on.
6. The result, in terms of working time, is the prevalence of a long-hours culture, where production schedules are routinely geared to long hours and where contracts (in so far as they are written down at all) provide for long (and often unspecified) hours. The Government itself, through the Department of Trade and Industry's recent Work-Life Balance survey, has shown that 23% of all UK media workers (ie not just those we are concerned about) are regularly working more than 60 hours per week. We know, from the experience of our freelance members, that hours in excess of 48 per week are in fact the norm.
7. This is self evidently undesirable from the viewpoint of health and safety - especially in light of the fact that many freelances, without a regular workplace, have to accept longer the average home-to-work journeys. Sadly, this has resulted, in some cases, in fatal road accidents linked to fatigue.

The specific evidence

8. Attached to this covering note are copies of 40 individual employment contracts from the recent period (all, of course, since the UK's adoption of the opt-out). 15 of these are contracts with broadcasters (BBC, Granada, Carlton, Meridian, HTV) and 25 of these are with independent production companies. This is intended to provide a 'snapshot' of typical freelance contracts applying within a short period of time. Many additional examples can be provided if required.
9. The common feature of all such contracts is that they include a clause giving effect to the individual's opt-out from the 48 hour limit. Such a clause appears in every single contract appended and is standard practice in this sector of the industry. Larger organisations, such as the BBC, often have a standard from of words.
10. In addition, the following additional evidence is of particular significance:
1. The Producers Rights Agency (ie the employers association for independent production sector, formerly called 'PACT') has issued IR Circular 06/2002 to all member companies giving specific advice on obtaining a waiver of the 48-hour limit, including a 'suggested clause'. The circular makes clear that 'This waiver should be included in the individual contract'.
2. The model contract produced by PACT (now PRA) includes, in its standard letter of engagement, an equivalent waiver clause.
3. The BBC, in one of its typical freelance contracts (for the production 'A Face at the Window') not only includes a waiver clause but inserts an explicit statement that 'I have enclosed such an agreement (ie the 48-hour waiver) and it is a condition of this offer of contract that it is signed and returned unamended.' This makes it clear that agreeing to the waiver is a precondition for obtaining the job.
11. The overall picture of the use of opt-out in relation to our freelance members in this sector is as follows:
• The opt out is not an occasional feature of employment contracts but a regular, standard aspect ie it is the norm for this sector.
• In this context, individuals do not choose to opt-out but are routinely required to do so as a standard feature of employment. There is no question of individual choice since the 'opt-out' is in fact a matter of compulsion.
• As is made most clear and explicit in the BBC contract referred to above, but which is a general understanding - agreement to the 'opt-out' is a precondition for obtaining employment. If the individual cannot agree to the waiver they simply will not be engaged.
12. We believe, therefore, on the basis of the evidence provided, that the opt-out is being routinely abused in this sector. The original intention of this provision - that individuals could choose whether or not to exercise their right to opt-out - is not being fulfilled. Instead, the opt-out has become a matter of widespread compulsion - based on the imbalance of power in the employment relationship and to the detriment of the individual freelances involved.

Record keeping

13. As a subsidiary issue, we note that in 2000 the UK relaxed its regulations in respect of record keeping on opt-outs so that there is no remaining obligation on companies to keep records of hours worked. We believe these weak record keeping requirements reinforce the companies' opportunity and incentive to abuse the opt-out provision. We note, in this respect the cynicism of the PRA circular, which advises on record keeping only 'where there is a higher chance of an accident at work taking place'. In parallel to removing the opt-out, we therefore believe the UK should be compelled to strengthen the record-keeping provisions.

Conclusion

14. We hope you will take note of our evidence of the routine use of opt-out clauses for freelances working in the UK audiovisual sector - to the point where the opt-out has become a compulsion rather than a choice. We will be happy to provide additional evidence if required. We trust that the Commission will be able to make a clear recommendation against any further extension of the opt-out and for an obligation on the UK Government to end the opt-out provision as soon as possible.