DTI consultation on the application and operation of the Working Time Opt Out: BECTU Response

15 July 2004

Response to DTI (UK Department of Trade and Industry) consultation.

BECTU position

1. BECTU has taken a close interest in the working time opt out since the very inception of the debate on this issue. We have made two submissions to the European Commission - in October 2002 and January 2004 - both of which have also been sent to the DTI. They are attached as appendices 1 and 2 to this submission. Enclosed with our first submission were 40 individual employment contracts exemplifying abuses of the opt out faced in our sector. We will be more than happy to resubmit these to the DTI if required - together with many other additional examples.
2. Our key concerns - as set out in more detail in our earlier attached submissions, are as follows:
   • The opt-out is prevalent in relation to our freelance members working in film and television 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 in contracts 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. It is, in effect, compulsory. If the individual cannot agree to opt out, they simply will not be engaged.

The European Commission's options on the opt out

3. We have noted the EC's four options on the opt out, as set out in its 'Second Phase Consultation of the Social Partners at Community Level'. BECTU's basic view, in line with that of the TUC, favours Option 4 ie that the opt out should be phased out as quickly as possible and that means of tackling abuses should be identified during any interim period. We note that in Ireland the opt out was successfully phased out in 3 years. We are disappointed that a Labour Government should take a position whereby it 'strongly supports the retention of the individual opt out'.
4. We see collective bargaining as having a key role in minimising abuses pending the elimination of the opt out. Far from limiting flexibility on this issue, collective bargaining is the main means by which the opt out can be phased out in a way that takes account of the particular conditions in our sector. Such bargaining can only really have force, however, in the absence of any default position whereby individual opt outs are allowed to continue as before in the event of a failure to agree. We have therefore taken an interest in proposed measures to prevent abuses during the phasing out of the opt out.

Measures to tackle the abuses of the opt-out

5. We note the series of measures proposed to tackle abuses. We address these below - not as alternatives to phasing out the opt out but as measures to be applied during the phasing out.
6. We note the proposal that opt out agreements must be in writing and include a statement of rights. We believe any such statement should make it clear that it is unlawful for employers to force workers to sign opt-outs or to subject them to detriment if they insist on their rights; and that detriment includes refusing to employ such workers.
7. We note the proposal for making it clear that it is unlawful for employers to include opt-out clauses in the contract of employment or to require an opt out to be agreed at the same time as the contract. As pointed out in our previous submissions, this is absolutely standard behaviour by employers in the sector we are most concerned about (freelance engagements in film and television). A measure of this kind would therefore be helpful if allied, as in the previous proposal, to an explicit statement that subjecting workers to detriment is unlawful and that detriment includes refusing to employ workers who choose not to sign an opt-out. We do not believe this measure in itself will solve the problems we have identified (since, we believe, employers will still exert immense pressure for opt-outs to be agreed at a later stage than the initial contract) but we would welcome it as a useful partial measure.
8. We note the proposal for making the opt out time-limited and for reducing the notice period for opting-in. While we recognise these may be of assistance to workers in a number of other sectors, they will be less relevant to freelances on short fixed-term contracts who will not be employed for long enough to exceed any time limit or to go through an opting in procedure.
9. We note the proposal for a cap on long hours for opted-out workers. We would see this as operating only in a context of a phasing out period. In that context, we would see the setting of or operation of a cap on hours as best approached through sectoral collective bargaining.
10. On the proposed risk assessments and voluntary health assessments for long hours working, we would welcome these measures in themselves together with the associated requirements for record-keeping by employers. However, we believe that in any sector strongly characterised by long hours working, risk assessments should already be taking account of the impact of long hours on workers' health and safety. It would be an indictment of employers' attitudes to health and safety (and, as the TUC points out, of our weak and under-resourced enforcement system) if long hours were not already taken fully into account in applying risk assessments to a sector such as film and television production.
11. Finally, we note the proposals for an awareness campaign on working time rights, guidance on good practice and a national code of practice. We would welcome these measures in themselves - but with a preference for a strong code of practice rather than simple guidance notes.

Conclusion

12. We have strong concerns on the abuses of the opt-out by employers (both broadcasters and independent producers) in relation to freelance workers in film and television. We have been expressing these concerns both to the European Commission and the UK Government from a very early stage in this debate. We are disappointed that the Government's position remains in favour of continuing with the opt out. We believe, on the basis of the widespread abuses suffered by our members, that the opt out should now be phased out as soon as possible and that the process of phasing out should be conducted whenever possible through sectoral collective bargaining. We hope you will take note of our views - both in terms of our basic opposition to the opt out and of the particular issues explored above.