Time to reflect

The European Union’s (EU) revamped Working Time Directive was to be finally agreed this summer, but it all fizzled out in June, and to all intents and purposes, we’re back to deadlock again.

The chief point at issue here of course is the UK’s opt-out from the provision setting a maximum working week of 48 hours and laying down minimum holiday, rest and night work periods.

It’s been an article of faith for more than a century in UK trade union circles that there should be legal limits on the number of hours worked. Employers disagree, arguing that the opt-out from the EU law is one of the main reasons for the UK’s labour flexibility and its recent economic success.

In May, after several months of heated debate, the European Parliament voted by 378 votes to 262 to phase out the opt-out by 2012. MEPs from Germany, Poland, Slovakia, Cyprus and Malta joined with some from the UK to vote against, but all 19 UK Labour MEPs voted to end the opt-out – breaking with Tony Blair’s government.

The directive subsequently went to the EU Council of Ministers in early June, where senior ministers considered a European Commission compromise, proposal to continue the opt-out for three years after implementation of the directive and then allow member states to request an extension in respect of years after 2012.

However, this would be at the discretion of the commission “for reasons relating to the individual states’ labour market arrangements”, sparking unease among some member governments and enabling the UK, backed by Germany and some of the EU newcomers, to flatly reject the idea and the compromise deal.

This suited the UK government, which, as the new EU president, can now see to it that the matter is kept off the agenda until 2006 at the earliest.
So where does this leave the opt-out?

“Your guess as good as mine,” says MEP Liz Lynne, the Liberal Democrat European Parliament employment spokesperson and member of the parliament’s employment committee.

“It could come back next year, but we don’t know when. The Council of Ministers has to make a decision, which has to come back to the parliament for a second reading – when we get a chance to table amendments – and then, if there are differences, it goes to conciliation”, (the arbitration procedure between MEPs and ministers). “The process is in limbo and unlikely to be resolved in the foreseeable future,” she told Occupational Health.

Despite being part of the currently left-wing Liberal Democrat party, Lynne backs the opt-out.

“Those opposed to the opt-out are not living in the real world, and are instead caught up in some idealistic view of working life,” she says. “They fail to address the real problems scrapping the opt-out will cause, especially for those employed in seasonal work or on short term-contracts.

Removing the opt-out will also lead to more people working illegally, who would therefore not be covered by other health and safety legislation,” she adds.

A survey earlier this year by the UK’s Chartered Institute of Personnel and Development (CIPD) backed this line, suggesting that for financial reasons and for career advancement, more than half of UK employees wanted to keep the right to work the hours they wanted to, and not be subject to limitations laid down by Brussels.

This despite (or maybe because of) the fact that the British work more hours than other European workers – an estimated four million already work more than 48 hours a week on average.

The TUC, however, claims that most of those working long hours are doing so against their wishes and would like to work fewer hours. It says that those working more than 48-hour week suffer disproportionately from heart disease, diabetes and mental illness.

Richard Jones, director of technical affairs at the Institution of Occupational Safety and Health (IOSH) told Occupational Health that IOSH was disappointed by failure to move against the UK’s opt-out, which, he says, “may lead to many more UK workers suffering the ill effects of long-hours working.”

“We challenge [trade and] industry secretary Alan Johnson to back his claim that abuses will be ‘weeded out’, by introducing new and immediate safeguards,” he adds.

There is growing evidence that being forced to work long hours was bad for the health and safety of employees, and was associated with stress and poorer psychological health, argues IOSH.

“I’m very relaxed about the Working Time Directive because, like everything else, the big companies that tend not to take any notice of these things won’t be taking any notice of it anyway. There’s been a lot of crocodile tears shed about it,” says Neal Etchells, a consultant at Professional Health and Security Consultants.

“The directive is fine and dandy, but the people who will take notice of it are civil servants, so that when you ring up at four on a Friday, everybody’s gone home. Those who need the legislation would never get the chance to take advantage of it – like people in supermarkets and so on. What the employers will do will be to put people on part-time contracts, and they’ll work out financial provisions around the directive,” he adds.

Etchells specialises in the construction industry “and here, if you have a job that’s got time penalties on it, I don’t see 30 blokes knocking off at four on Friday because they’ve gone over their working time. It’s just not going to happen. I think all the huff and puff is a bit bogus personally.”
Asim Khan, a Glasgow-based lawyer with Employment Law Consultants, predicts the directive will affect industries that sometimes require employees to work more than a 48 hour week at certain times of the year.

“Accountants, for instance, and those working long hours at the year end for seasonal reasons,” she explains.

“Many employers’ organisations, especially in the product sector, might have a difficulty with it,” she adds. If the directive comes into force in the UK, she says, “the government will have to look at compensating employers that use working flexibility as an essential tool of their business.

“Although the EU directive is driven by health and safety considerations, many employees welcome the opportunity to earn a few more pounds by working more hours at certain times of the year, such as in the build up to Christmas. Where does this leave them?” she says.

Khan says it could be that the nature of work in many continental European countries differs from that in the UK.

“Our [manufacturing] industry is dwindling, and we’re moving to a much more service-orientated environment, and that could be why we needed the opt-out. I’m not sure whether that’s mirrored across the rest of Europe.”

And one of the key issues with a lot of contractors, particularly those engaged in large projects, was that employees were often travelling long distances to and from the workplace, said Karl Gorner, technical director at OH consultants Safety Services (UK) Ltd. While this travel was not part of the working day, “obviously employers do have to consider it as part of the overall view of things and that can create issues,” he said.

One of the issues that had been raised concerned those in trades who worked outside in the summer months and generally wanted to work when there was available light. If working time was averaged over 16 weeks, it might not take into account seasonal variations, he said. Quite a lot of contractors were working to a price these days “and if you’re putting a roof on a building, for instance, then you would want to be able to work the hours available in terms of light.”

The construction industry as a whole tends to work Mondays to Fridays, and sometimes on Saturday mornings, with workers probably working an average of around eight hours a day, “so this (legislation) probably won’t have a huge effect in the construction industry, but in other industries, where rates of pay are lower, there is going to be an issue because some individuals are going to claim they can’t work enough hours to make ends meet,” Gorner says.


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