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In August the regulations which implement the extension of the EU's Working Time Directive came into force in the United Kingdom. By November the Council of Ministers must receive a recommendation from the European Commission on the future of the existing 'opt-out' from the 48-hour maximum which only applies in the UK. As unions ready themselves to negotiate better deals for their members in newly included sectors like transport and health care, they look over their shoulders at the exceptions and loopholes that remain. We look at the chances of them disappearing and the best way to make use of the law as it is.
Since the incoming Labour government agreed to implement the EU's Working Time Directive in 1998 the impact on real working lives has been much less than was hoped. The TUC estimate that there has been only a 3% fall in the number of employees working long hours in the UK. 4 million people still work more than 48 hours a week on average. One reason for this has been the opt-out clause that the government negotiated at the time of the law's British implementation. Individuals were supposed to have to sign a written agreement with their employer to say that they did not want to be bound by the 48-hour maximum but could opt-in again on giving a specified length of notice. However there has been widespread evidence of employers sending opt-out forms to all new recruits, of employees working additional, unpaid and unmeasured hours to meet targets and of simple bullying of vulnerable workers into signing.
Now the period of the 'British exception' has come to an end and unions had been assuming that, under pressure from the Commission and the other EU Member States, the government would let the loophole disappear without a fight. However there have been worrying reports in the press that Prime Minister Blair who is said to regard the directive as 'the single worst piece of legislation' produced by the Commission is thinking of offering a deal to increase statutory holidays so that the opt-out could be renewed. At the same time the government has brought in regulations which will give deep-sea fishing workers, offshore workers, most transport workers and junior doctors the benefits of the law as it stands.
The Horizontal Amending Directive extended working time protection to these sectors and this has now been added to UK law. While the TUC estimates that 70,000 workers will find, for example, their holidays lengthened and about 160,000 their hours reduced, it draws attention to the exemptions allowed in the directive, all of which the government has used. There are a number of derogations from the rest break provisions, night work limits and the averaging period for the 48-hour week for people working in a large number of sectors including media production, postal and telecommunications services, ambulance, fire and civil protection services; gas, water and electricity production, refuse collection, agriculture and tourism.
So how should trade unions make use of these improved, if flawed, regulations ? The TUC feels that flexibility in the law can be used to workers' advantage, for instance where derogations are applied to rest periods, 'compensatory rest' must be provided by the employer and both the justification for delaying the period and deadlines for the start of the replacement can be negotiated. Individual unions such as the TGWU will attempt to use the new law in areas such as the bus industry with their 'Busworkers' Charter' but officials admit that the loopholes are causing problems.
A case from Germany has highlighted both the problems of different treatment of men and women in the pensions system and the generous nature of part-time allowances in that country. Under a scheme designed by the Federal government to reduce unemployment, any employee over the age of 55 can receive 70% of their full-time wage if they opt to work part-time. The difference between the normal salary for their new hours and the 70% is made up by the government; in return the employer must recruit an unemployed person. Furthermore some collectively agreed schemes provide 83% of salary.The part-time period may also be condensed into a full time one of half the length with the allowance continuing until retirement.
A Ms. Kutz-Bauer was employed by the City of Hamburg. She wanted
to enter the scheme at age 60, work
21/2
years full time and then give up work. This would have
meant that the 70% salary would have been payed until she was 65
whether she was actually working or not. However because she was a
woman, the state pension would be payable when she was 60 and the
government part-time scheme then withdrew all subsidy. The workplace
scheme stated that all employees must finish their employment in the
month before becoming eligible for a pension.Ms. Kutz-Bauer's request
was therefore refused. She took the case to court on the grounds
that, in practice, only men could benefit from the schemes between
the ages of 60 and 65 and therefore they were discriminatory under
the EU Equal Treatment Directive.
The ECJ decided in favour of Ms. Kutz-Bauer and directed the German
courts to override both national law and collective agreements and
allow women to claim a pension while working part-time under the
scheme.
A case from the UK has been decided on the basis of a previous ECJ TUPE decision which applies to people working on their own. Mr. Lowe was carrying out maintenance and repairing duties where the work was organised into packages for each individual. His package was sub-contracted but he was not taken on by the new company, Dudley Bower Building Services Ltd. He argued that TUPE should apply as his work had been transferred. Relying on a European case from 1994 the Employment Appeal Tribunals agreed with him. The EAT observed that, where the task to be performed is complex and sophisticated and requires careful planning, specification and costings, it may be that a stable economic entity exists even though there is only one employee.
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