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Session 2002 - 03
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Delegated Legislation Committee Debates

Working Time (Amendment) Regulations 2003

Third Standing Committee on Delegated Legislation

Wednesday 22 October 2003

[Mrs. Marion Roe in the Chair]

Working Time (Amendment) Regulations 2003

8.55 am

The Parliamentary Under-Secretary of State for Trade and Industry (Mr. Gerry Sutcliffe): I beg to move

    That the Committee has considered the Working Time (Amendment) Regulations 2003 (S.I., 2003, No. 1684).

Welcome to the Chair, Mrs. Roe, and to our deliberations on this technical, but important subject. The Working Time (Amendment) Regulations 2003 implement the horizontal amending directive 2000/34/EC, or HAD, as it is more commonly known. The United Kingdom was required to transpose HAD into national law by 1 August 2003. HAD extends the working time directive 93/104/EC to sectors that were previously excluded. Those sectors cover all forms of transport—road, rail, air, sea and inland waterways and lake transport—sea fishing, offshore oil and gas exploitation and doctors in training. They were excluded from the original working time directive because of their different working patterns.

The working time directive is designed to ensure that all workers enjoy basic minimum standards on working time, rests and holidays. In the UK, the original working time directive was implemented by the Working Time Regulations 1998. It may help the Committee if I recap the provisions of those regulations. Since their introduction on 1 October 1998, the working time regulations have provided protection to a large number of workers in the UK, ensuring that they enjoy basic employment rights. Specifically, these rights are: no worker can be forced to work more than 48 hours a week on average; a right to four weeks paid annual leave; a right to rest breaks during the working day; a right to rest periods from work, including the right to one day off a week; special protection for night workers, including the right to health assessments; special protections for adolescent workers; and protection from unfair dismissal or detriment for asserting those rights.

The Working Time (Amendment) Regulations 2003 extend the measures to all non-mobile workers in the road, sea, inland waterways, and sea fishing industries; all workers in the rail sector and offshore sectors; and all workers in aviation not covered by the sector-specific aviation directive. Separate regulations are being made for sea fishermen, mobile workers on inland waterways and mobile workers in the road transport sector.

Different measures apply to mobile workers in the road transport sector. Workers not covered by European drivers' hours rules—bus drivers for example—are entitled to an average 48-hour working

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week, although they may choose to work for longer; four weeks paid annual leave; health assessments if they work nights; and adequate rest.Workers who are covered by European drivers' hours rules—heavy goods vehicle drivers, for example—fall under the scope of the road transport directive for all aspects of working time except paid annual leave and health assessments. The provisions of the regulations dealing with those two elements of working time have applied to them from 1 August 2003. The regulations extend to junior doctors from 1 August 2004.

While we believe that these rights and entitlements are appropriate, we recognise that businesses have to operate them. Our approach when implementing the original working time directive was to maximise flexibility wherever possible, as long as that did not detract from the protection provided by the directive. We believe that that was the right approach. It supports labour market flexibility and Government initiatives on flexible working. We have therefore adopted the same approach when implementing HAD.

Consequently, the regulations allow provisions such as the opt-out, which lets workers who wish to opt out of the weekly working time limits to do so individually. The opt-out is only legal if workers choose to exercise it; the regulations protect them from being forced to agree to the opt-out and from being discriminated against for not agreeing to it. Regulations also allow, through the use of collective and work force agreements, for workers and employers to reach agreement to vary or modify the rest entitlements, night work limits and the reference period for averaging weekly working time.

Derogations from the regulations allow the night work limits and rest entitlements to be disapplied in some cases, such as when there is a need for 24-hour cover, as in hospitals, care homes, prisons and the like. HAD made provision for those derogations to apply to offshore workers and some railway workers, provided that they were compensated if they lost out on any of their statutory rest entitlements. The same flexibilities also apply to shift workers.

The Government consulted extensively on the implementation of the regulations. A number of issues arose, but I will concentrate on the most relevant to this debate: the implementation of HAD in the offshore and rail sectors. Starting with the offshore sector, I should like to confirm that offshore workers will benefit from the general entitlement to four weeks paid annual leave. We have also legislated, in the case of offshore workers, for a 52-week reference period for averaging weekly working time.

HAD made provision for a 52-week reference period for the offshore sector. To quote the directive,

    ''subject to compliance with the general principles relating to the protection of the safety and health of workers, and provided that there is consultation of representatives of the employer and employees concerned and efforts to encourage all relevant forms of social dialogue, including negotiation if the parties so wish, Member States may, for objective or technical reasons or reasons concerning the organisation of work, extend the reference period referred to in Article 16(2) to twelve months in respect of workers who mainly perform offshore work''.

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Unfortunately, the two sides of industry did not reach a consensus on the length of the reference period. Having considered the views of both employers and trade unions on this issue, we believe that a 12-month reference period for averaging weekly working time is essential for the organisation of the work in a unique working environment.

We accept that activities such as maintenance, construction and well servicing are carried out during the spring, summer and autumn months as they depend on weather and daylight. On the other hand, oil and gas production is concentrated during the winter months to meet peak demand. As with any major industry, we accept the need for planned and phased maintenance programmes to ensure continuity of supply. For those reasons we believe that a 52-week reference period will provide employers with the flexibility to plan and secure the right resources to meet seasonal variations, while complying with the regulations. In doing so, we believe that the employees' interests will be adequately protected by both general health and safety legislation and by the provisions of the working time regulations. It should be remembered that, under the terms of those regulations, and unless they choose to opt out, employees can only be required to work a total of 2,004 hours during a year, whether the reference period is for 26 or 52 weeks.

The leave issue is more complex because the provision on paid annual leave is written in general terms in both the directive and the regulations. The regulations do not set out how the annual leave provisions will operate in the context of different sectors. The working patterns of the offshore industry do not fit well with the directive's assumption of weekly cycles of work. That means that it may sometimes be difficult to say how the entitlement to four weeks paid leave should be integrated into the working patterns of certain offshore workers—for example, those who have non-standard contracts of employment and those whose work is divided between offshore and onshore working.

Once again, there appeared to be no consensus within the industry on the issue. We were asked to remove all doubt by providing legislation or guidance, and seriously considered doing so. The difficulty we faced is that the variety of working practices and contractual arrangements within the offshore sector would make it impractical to impose a single solution on the sector. My predecessor—my right hon. Friend the Member for Hull, West and Hessle (Alan Johnson), who is now the Minister for Lifelong Learning, Further and Higher Education—my officials, and ACAS have made strenuous attempts to resolve the issue through meetings with employers and trade unions at official and ministerial level. Before that, ACAS chaired a series of forum meetings of employers and trade union representatives in an attempt to reach agreement on how HAD should be implemented offshore. Unfortunately, despite those efforts, a mutually acceptable interpretation could not be achieved.

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Since coming to office, I too have taken a close personal interest in this issue. Like workers onshore, offshore workers should be entitled to four weeks paid annual leave, which should not be taken during periods of compensatory rest—that is rest owed to a worker under the working time regulations. The variety of offshore working patterns makes it impossible to generalise about how that applies in practice, so we tend to talk in general terms of standard two weeks offshore and two weeks field break contracts. I accept that that does not present a true picture of the industry: many offshore workers do not work a standard cycle and others spend part of their working time onshore. Offshore work patterns have evolved to meet the needs of industry while ensuring that workers have adequate rest between offshore cycles.

Ultimately, the timing of leave is a contractual matter. I believe that it is a reasonable compromise for the paid leave of offshore workers, whose annual working time is split equally between offshore and field break time, to be allocated equally between offshore and field break time. That would allow offshore workers two weeks paid holiday during rig time, and two weeks holiday during time that would otherwise be spent onshore. As many hon. Members know, I have written along those lines to the United Kingdom Offshore Operators Association, which represents the offshore employers, and copied the letter to key employer and trade union contacts within the industry. I hope that my letter proves to be of some use in the negotiation of contracts of employment.

Turning to the railway sector, the regulations apply to all workers in the railway industry, with derogations from the night work limits and rest entitlements for some workers. Three groups of workers are covered by the derogation: those whose activities are intermittent, for example, rural stationmasters; those who work on board trains, such as train drivers and ticket inspectors; and those whose activities are linked to maintaining railway timetables, for instance, maintenance crews.

The rail employers asked us to defer implementation of the directive for operational and competitive reasons. They argued that the industry needed more time to recruit and train staff to comply with the regulations. The freight companies argued that they would suffer a competitive disadvantage compared with the road haulage industry, which would not be subject to working time rules until 2005. I was not convinced by those arguments. They ignore the fact that the social partners in the European railway industry reached an agreement on 30 September 1998 to adopt precisely the measures that HAD and these regulations, introduce. The industry has had five years, which is more than enough time to prepare for implementation of the working time directive. Besides, although the road transport directive will not be implemented for another two years, it applies stricter rules than those for rail—for example, there is no opt-out provision.

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Legislation is, of course, no good without ensuring adequate enforcement. For most sectors the Health and Safety Executive and local authorities will enforce the weekly working time and night working time limits, and the health assessments for night workers. Recognising the need for expertise in certain sectors, the Vehicle and Operator Services Agency will enforce those entitlements for mobile workers in road transport, and the Civil Aviation Authority will do so for mobile aviation workers who fall under the scope of the aviation directive. Individuals will assert their rights to paid annual leave, rest breaks and rest periods through employment tribunals.

 
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