BECTU response to European Commission communication: review of the Working Time Directive

16 January 2004
  1. BECTU is the British trade union for creative, technical and administrative workers in the audiovisual and live entertainment sectors. We welcome the opportunity to participate in the Commission's review and consultation on the Working Time Directive - with particular reference to the individual opt-out from the maximum 48 hour week.
  2. We have, at an earlier stage, submitted evidence to the Commission on this issue, comprising a report accompanied by 40 examples of employment contracts all giving effect to the opt-out. We again attach our initial submission - which continues to express our view on this issue - and will be happy to re-supply sample contracts if required.
  3. The key points, as expressed in our report, are as follows:
    • We have a particular concern about the prevalence of the opt-out in relation to our freelance members working in film and television - both for broadcasters and for independent producers.
    • This sector has a long hours culture with contracts routinely providing for long (often unspecified) hours.
    • A standard feature is the presence of a clause giving effect to the opt-out.
    • Individual freelances, therefore do not 'choose' to opt-out. They are routinely required to do so to the point where it is a matter of de factor compulsion. In these circumstances, if the individual cannot agree to the opt-out, they will simply not be engaged.

    4. The inclusion of the opt-out clause in the initial employment contract

  4. At the core of this problem is the fact that the individual freelance is faced with an opt-out clause which is routinely included in the initial contract. The worker has absolutely no option of working within a 48 hour working week since there is no such provision in the contract from the start. It is the opt-out which is the compulsory norm. The maximum 48 hour week is simply not on offer.
  5. We therefore agree completely with the Commission's evaluation of the UK legal provision as expressed in paragraph 2.2.1.2 of the Communication
    • 'The practice (of including an opt-out clause in the original contract) appears to undermine (the opt-out as expressed in Article 18 of the Directive), which aims to guarantee the worker's free consent by ensuring that no worker may suffer harm due to the fact that he is not prepared to give his agreement. It is legitimate to suppose that if the opt-out agreement must be signed at the same time as the employment contract, freedom of choice is compromised by the worker's situation at that moment'.
  6. This goes to the heart of the problems faced by our freelance members. In our view, it is therefore necessary to remove any legal possibility of employers including opt-out clauses in initial employment contracts. All such contracts should comply with the spirit and intention of the Working Time Directive, which is to provide for maximum weekly working hours of 48 on average, including overtime.

    7. Other issues

  7. Record Keeping. Our report also noted the weakening of record keeping requirements in the UK in respect of opt outs and referred to employers' abuse of these provisions. We therefore agree with the Communication (2.2.1.2) that there is now a paradox whereby 'there may be records on hours actively worked by workers subject to the 48 hour limit but not for those who have opted to work longer hours, who are significantly more exposed to risk to their health and safety'.
  8. Health and Safety. Our underlying concern throughout this debate is the effect of a compulsory long hours culture on the health and safety of the workers affected. As the Communication indicates (2.2.1.6), the evidence shows that 'work-related fatigue is increased by the number of hours worked'. This is born out by the experience of our members - up to and including fatal road accidents linked to fatigue.

    9. Conclusion

  9. Our conclusion remains - as indicated in our initial report - that the opt-out provision should now be abolished as soon as possible. In our view, the resulting abuses suffered by our members, and by many others, far outweigh any conceivable economic 'gains'. In this respect, we agree with the views of the ETUC (paper to the European Parliament Committee on Employment and Social Affairs, 27.11.03) that the opt-out 'is in flagrant contradiction to the principles and goals of the EU�and�.has lead to unacceptable abuses in the country for which the derogation was created, the UK'. The opt-out should now be deleted from the Directive.
  10. Furthermore, regardless of the general position on the opt-out, the specific problem faced by our freelance members - of being faced with initial contracts which already contain an opt-out - should now be addressed. It is simply unacceptable that an opt-out should be presented as a compulsory clause in employment contracts from the very start - with the clear implication that individuals who do not accept this will simply not be engaged. This practice should be ruled as unlawful in terms of the Directive and resulting Regulations. All such workers should have the opportunity of operating within a framework of the maximum 48 hour week. The practice of including an opt-out clause within the initial offer of an employment contract should no longer be allowed within the framework of the Directive.
  11. We hope you will take note of our views. We can readily provide further evidence - in the form of employment contracts - to support the arguments set out above. We look forward to further progress along these lines in the review of the Working Time Directive.
Last updated 6 April 2004