Government acts on EU working time Directive
In April 1998, the UK's Labour Government published draft legislation to implement the provisions of the EU working time Directive. We review the background to this move and the implications of the Government's proposals.
On 8 April 1998, Margaret Beckett MP, President of the Board of Trade, launched a public consultation exercise on draft regulations to implement the provisions of the EU working time Directive (plus the working time aspects of the young workers Directive). Subject to any amendments the Government considers necessary in the light of the consultation exercise, the regulations will be laid before Parliament before the summer recess and are expected to take effect from 1 October 1998.
The Directive on certain aspects of the organisation of working time (93/104/EEC) was adopted by the EU Council of Ministers on 23 November 1993, the UK abstaining, and all EU Member States, including the UK, were required to implement its provisions by 23 November 1996. The UK's then Conservative Government was strongly opposed to the Directive, on both substantive and procedural grounds. It took the view that there was no need for the regulation of working time at European level and that the Directive would run counter to its domestic policy of promoting flexible working. The Conservative Government also objected to the Directive's treaty base - Article 118a of the EC Treaty, enabling the adoption of health and safety measures by qualified majority voting rather than unanimous approval and thereby preventing the UK from vetoing the Directive - and launched a legal challenge to the Directive in the European Court of Justice (ECJ) In November 1996, the ECJ rejected all aspects of the UK's case except one - the annulment of the provision that the minimum weekly rest period should in principle include Sunday.
The new proposals
The draft regulations reflect the working time standards laid down by the Directive and, subject to certain exceptions, provide for:
- a maximum average working week of 48 hours, including overtime;
- a maximum average of eight hours' night work in each 24-hour period;
- a minimum rest period of 11 consecutive hours per day;
- a minimum rest break of 20 minutes where the working day is longer than six hours;
- a minimum rest period of one day per week; and
- a minimum period of three weeks' annual paid leave, rising to four weeks in November 1999.
In some areas, more stringent working time limits apply to workers under the age of 18, reflecting certain provisions of the 1994 Directive on the protection of young people at work (94/33/EC). The regulations will be enforced via action by the health and safety authorities and industrial tribunal (IT) claims by employees.
The working time standards are subject to a complex set of exceptions and "derogations". Workers involved in certain activities are excluded from the scope of the regulations, including transport, sea fishing and other work at sea, and doctors in training. Many of the regulations do not apply in relation to workers whose working time is not measured or predetermined or can be determined by the workers themselves, including managing executives and family workers. There is also scope for the flexible application of the working time standards in a range of activities, including those involving the need for continuity of service or production or where there is a foreseeable surge of activity, provided that the workers concerned receive equivalent compensatory rest.
More generally, the flexible application of some of the regulations' standards is possible via collective agreements with trade unions or, where there is no recognised trade union, by "workforce agreements" - ie agreements signed individually by each member of the workforce or negotiated by elected employee representatives. The regulations also provide that individual employees can voluntarily agree with their employer in writing that the 48-hour limit on average weekly working time should not apply in their case.
Reaction from the social partners
The Confederation of British Industry (CBI) welcomed the Government's proposals, commenting that: "It is only right that individuals should have the right to work extra hours if that suits them, and that employers can retain the flexibility they need to run a business efficiently." The Trades Union Congress (TUC) said that the regulations should help reduce excessive working hours in the UK and improve the balance between work and home, but expressed the concern that "allowing individual opt-outs will not provide sufficient protection in non-unionised workplaces against employers putting undue pressure on their staff".
Some commentators have suggested that the new regulations will not require major changes in UK working time arrangements. This view seems wide of the mark, however. Historically, working time has not generally been regulated by the law in the UK (UK9702103F). Moreover, in line with their policy of deregulating the labour market, Conservative Governments in the 1980s and 1990s repealed almost all the limited statutory provision that existed for certain groups of workers in this area. The proposed new statutory framework therefore represents a significant change in approach to the regulation of working time with which employers and employees will need to come to terms.
The direct impact of the regulations on existing working time patterns is likely to be considerable: statistics quoted by the Government show that currently some 2.7 million workers usually work in excess of 48 hours per week, and that 2.5 million have an annual paid leave entitlement of less than three weeks (3.1 million with less than four weeks). As a result of the key role given to collective agreements (or non-union "workforce agreements") as a means of achieving the flexible application of the statutory standards, negotiation over detailed working time issues is likely to become more significant and widespread than at present. More broadly, the regulations may well prove to be the catalyst for a radical overhaul of the way in which working time is managed, with further moves towards options such as annual hours arrangements.
A key issue concerns the impact of the "individual opt-out" provision concerning the 48-hour limit on the average working week. Fears have been expressed by trade unions and others that this will serve to legitimise excessive working hours. The take-up rate of this option will be an important indicator. Where existing working time patterns do involve an average working week above the 48-hour ceiling, it might initially be expected that workers refusing to agree to longer working hours would be in a minority: there is likely to be a considerable vested interest in overtime working either because it is a critical factor in earnings or because long hours are regarded as essential to career progression. Managerial or peer-group pressure may also be significant. Much will depend, however, on whether the regulations and associated litigation have a wider influence on people's thinking about working time, encouraging greater employee resistance to long hours and increasing managerial interest in more radical options for the reform of working time practices. (Mark Hall, IRRU)