Select Committee on European Union Minutes of Evidence

Supplementary evidence from Department of Trade and Industry

  Following the proceedings of the Committee, which were held on 4 February, I am writing to provide the supplementary written information, which was requested by the Committee, in connection with four issues which were discussed before it.

BARNARD REPORT

  Although the Commission have not published the Barnard report, they have made it available to those who have asked. The contact at the Commission is:

Fernando Pereira

DG Employment and Social Affairs D02

European Commission

B-1049 Brussels

Email: [e-mail]

Tel: [phone]

INCIDENCE OF LONG HOURS WORKING

  We agreed to provide the Committee with further details of the incidence of long hours working. More detailed industrial analysis shows that the industries that have the highest proportion of full-time employees usually working over 48 hours a week in the Spring quarter 2003 are Agriculture (42 per cent), the Oil and Gas industry (37 per cent), Manufacture of wood products (not furniture) (27 per cent), Construction (26 per cent), Sales of motor vehicles, parts and fuel (27 per cent), Transport by land (39 per cent), Water Transport (39 per cent), Personal, household, machine equipment rental (27 per cent), Education (29 per cent), Activities of membership organisations (27 per cent), Private households with employed persons (42 per cent).

TOURISM INDUSTRY

  In response to Lord Harrison's question about the tourism sector, I can inform you that the reason that tourism was not mentioned as a long hours sector at the Select Committee is because the Standard Industrial Classifications that are used in our analysis of the Labour Force Survey do not separately identify the tourism industry. However, it is possible to look at long hours working in industries considered to be predominantly service tourism. The extent of long hours working in these "tourism related industries" compared to all employees is provided in the table below.

PERCENTAGE OF FULL-TIME EMPLOYEES IN TOURISM RELATED INDUSTRIES USUALLY WORKING GREATER THAN 48 HOURS PER WEEK

	Per cent
Tourism related industries	19.1
55.1: Hotels, motels	19
55.2: Camping sites, short stay accommodation	*
55.3: Restaurants	26
55.4: Bars	26
63.3: Travel agencies, travel organisers and guides etc	9
92.5: Library, archive, museums and other cultural activies	*
92.6: Sporting activities, arenas, stadia	16
92.7: Other recreational activities	15
All industries	20.0
* Sample size too small for reliable estimate.
Source: Labour Force Survey, Average of Winter 2002, Spring 2003, Summer 2003, Autumn 2003 Quarters.

INFRACTION PROCEEDINGS AGAINST THE UK ON WORKING TIME

  Generally the infraction proceedings were commenced by a letter from the Commission dated 28 March 2001. The Commission's Reasoned Opinion was issued on 30 April 2003 and the UK replied on 30 June 2003. We understand that a meeting of the Infraction Chefs has now decided to refer the case to the ECJ. We further understand from the Treasury Solicitor's Department, that the case has not, as yet, been listed by the ECJ although it is anticipated that this may happen in the course of the next few weeks.

  In response to the Committee's questions concerning the subject matter of the infraction proceedings, the original infraction proceedings focused on four areas where the Working Time Regulations 1998, as amended by the Working Time Regulations 1999, were felt not to be entirely consistent with the provisions of the Working Time Directive:

  1.  Annual leave—13 week qualifying period;

  2.  Calculation of night workers' hours;

  3.  Partly unmeasured working time; and

  4.  Guidance concerning an employers' responsibility regarding his workers' rest periods.

  Regarding annual leave, Regulation 13(7) of the Working Time Regulations 1998 originally made it a pre-condition of entitlement to annual leave that a worker had worked for his employer for a 13 week qualifying period. This was held to be inconsistent with the WTD by the European Court of Justice in the case of Broadcasting, Entertainment, Cinematographic & Theatre Union (BECTU) v Secretary of State for Trade and Industry [2001] IRLR 559. t. Regulation 13(7) was, therefore, revoked by the Working Time (Amendment) Regulations 2001, SI (2001/3256) and, as a result, the Commission have now removed this issue from the infraction proceedings.

  As regards the second ground for infraction, the offending provision concerning length of night work was contained in Regulation 6(6) of the Working Time Regulations 1998 but this has now been revoked by the Working Time (Amendment) Regulations 2002 SI 2002/3128. As a result of this amendment, the term "normal hours" includes routinely worked overtime, whether or not it is guaranteed by the employer. We have informed the Commission of the revocation in our response to the Reasoned Opinion and, as a result, we anticipate that this issue will also be dropped from the infraction proceedings.

  As to the third ground for infraction, concerning partly unmeasured working time, the amendment to Regulation 20 of the Working Time Regulations 1998, which was made by the Working Time Regulations 1999 (SI 1999/3372), applies where "the specific characteristics of the activity are such that, without being required to do so by the employer, the worker may also do work the duration of which is not measured or predetermined or can be determined by the worker himself". It has been argued that this has the effect of disapplying the regulations from unmeasured overtime, even if the rest of a worker's time is measured. The Commission's view is that this unduly extends the derogation allowed by Article 17(1) of the Working Time Directive (which states that "Member States may derogate from Articles 3, 4, 5, 6, 8 or 16 when, on account of the specific characteristics of the activity concerned, the duration of the working time is not measured and/or predetermined or can be determined by the workers themselves"). The Commission argue further that the derogation must be interpreted restrictively, and therefore only workers whose time is wholly unmeasured can be covered; to extend it would "make impracticable the whole protection system introduced by the Directive". This is a point on which there are arguments on both sides and it is recognised that there is a risk that the UK may not succeed before the ECJ on this issue.

  The final ground for infraction concerns the Guidance issued by the DTI concerning an employer's responsibility regarding his workers' rest periods. The provisions of the Working Time Directive, which govern daily and weekly rest and rest breaks (Articles 3-5) are expressed in terms of an entitlement of the worker, ie Article 3 provides that "every worker is entitled to a minimum daily rest period of 11 consecutive hours per 24 hour period". The relevant regulations of the Working Time Regulations 1998 (Regulations 10-12) reflect the wording contained in the Working Time Directive and provide that an adult worker is entitled to certain rest breaks. The guidance, which has been issued in connection with the Working Time Regulations, states "Employers must make sure that workers can take their rest, but are not required to make sure they do take their rest." We feel that this reflects the fact that the right to rest is expressed in the Working Time Regulations as an entitlement of the worker. The Commission contests this interpretation, arguing that "Member States have the obligation to make sure that rights to daily and weekly rest are granted and exercised". We feel that this is goingly slightly beyond what is actually required by the Working Time Directive.

  We expect that the Commission will take their final two issues of concern to the ECJ this year.

Fran Buckle

Senior Policy Advisor—Working Time

25 February 2004

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