Examination of Witnesses (Questions 120
- 139)
WEDNESDAY 25 FEBRUARY 2004
MR IAN
BRINKLEY AND
MR PAUL
SELLERS
Q120 Lord Howie of Troon: Is that not a
bit of an infringement of the worker's rights to earn a living
and become rich?
Mr Brinkley: No more so that the Directive per
se and if it is right to stop someone working more than 48
hours within the terms of the Directive for a fulltime job, it
must apply whether that job is split into separate ones or is
simply one. The principles are exactly the same. I am not sure
too many people would be caught by this because the majority of
people doing second jobs are either doing two part-time jobs,
or their second job is as a self-employed person. The combination
of fulltime and part-time is relatively rare. Certainly looking
across Europe, the incidence of second jobs does not appear to
be particularly high or low compared with the UK.
Q121 Lord Howie of Troon: But there is a
good deal of it in Britain, is there not?
Mr Brinkley: There is some in Britain; it is
slightly higher than the European average but not excessively
so and it has not been increasing recently.
Lord Howie of Troon: I do not think it
is the TUC's business to stop workers earning as much as they
can. You do not need to answer that.
Q122 Earl of Dundee: This is a hypothetical
observation, but I suppose if you take the previous point and
focus on worker's choice and on job satisfaction, all the more
so would these factors have a part to play. If talking about a
man or woman who has two jobs or three jobs, by definition they
do it very much from the choice of doing that. Therefore when
one looks to see what restrictions should or should not be imposed
upon them, it is not likely to be restrictions which obtain in
the same ways as they would have done if it were a man or woman
who had one job. There may be an insufficiency of cases for it
to have come to your attention, but I am just following the thoughts
of my colleague Lord Howie of Troon. What would you say on that
one?
Mr Brinkley: There is no reason why people cannot
hold several jobs. The whole question is whether you limit the
number of hours; whether you split the employment up into several
different jobs or just have one job, the principle must be the
same, must it not? Your question about whether you are imposing
choice on people is much the same.
Q123 Earl of Dundee: Yes, it will be, except
that if to some extent one wants to protect people from getting
exhausted and under stress and that it is a good idea with certain
jobs to have more than others and perhaps it is easier to work
out how to do it if a man or woman has one single job, but when
a man or woman has more than one job, it would by definition become
more cavalier to impose restrictions upon him or her. Your point
still obtains about 48 hours is 48 hours is 48 hours, whether
you divide it into three or four. Getting back to Baroness Brigstocke's
point, if one never took account of different ways of judgment
when it is two or three jobs rather than one, one would tend to
impose a kind of economic overview with insufficient regard to
human circumstances.
Mr Sellers: I do not think anyone has tried
to run that kind of statistical analysis from the labour force
survey. Although statistics are never conclusive, it might be
a useful exercise to test job satisfaction on those who have long
hours and two jobs. That might be interesting.
Chairman: We might move on now to regulation.
There are several points on regulation, potential abuse of the
opt-out and so on. This is a point which is covered in the Commission
document and in your document.
Q124 Baroness Greengross: I share your concern,
if there is widespread abuse of the opt-out provision, but going
back to what I was saying before, we need evidence and you talk
about your polling, but does that give you the evidence which
is necessary and does that mean in fact that the current regulations
are very weak and people can get away with this sort of abuse?
Mr Sellers: First off, we do think that the
current regulations are very weak. They are only enforced following
complaints to the Health and Safety Executive; the Health and
Safety Executive do not, as it were, go looking for abuse of the
Working Time Directive in the way that they do with all the other
aspects of health and safety law. That would be a useful change
really, if the Health and Safety Executive were able to examine
working hours as part of their general inspections and to conduct
occasional blitzes, as they do with other aspects of law. In terms
of what evidence there is for abuse, our own evidence is from
some quite limited polling which we do on an annual basis. We
survey just over 2,000 long-hours workers using BRMB to add on
a series of questions to their polls. What we found from that
was, for instance, that one quarter of people who have opted out
said they had no choice but to do so, which is a matter which
gives us even more concern than if they had done it without any
pressure on them to do so. Beyond that, there is also a series
of reports from the government and from the European Commission,
which has sampled case studies and every one of those comes up
with evidence of abuse. Most recently the European Commission's
Barnard report identified certain problems about people just being
told they should opt out, for instance in finance companies. A
more widespread practice which gives us some concern is for the
employer to send out a contract of employment and the opt-out
form with a covering letter to say they must be signed and returned
before work can be started. We obviously do not think that is
a real choice around opting out and that is a practice we would
like to change. There is all that and also the DTI's own studies
of how the Working Time Directive is working, which inevitably
throws up a minority of cases of abuse. These are some of the
reasons for which we are supporting the statement that the abuse
is widespread.
Q125 Baroness Greengross: Are the regulations
therefore weak?
Mr Sellers: Yes. I started by saying the Health
and Safety Executive do not have the powers to deal with these
issues. The fact that abuse still exists suggests that even with
the opt-out workers are not getting what their current rights
are under UK law.
Q126 Lord Howie of Troon: Do you have any
idea what the cost of additional regulation might be to the government
to employers? Do you think this might add to the bureaucratic
difficulties of small employers like Mr Patel, the newsagent?
Mr Brinkley: Operating the opt-out already imposes
some burden on employers. We have to use a complicated system.
Removing the opt-out and switching to a straightforward application
of the directive should involve no extra cost and no extra burden.
It is even possible it may reduce it slightly.
Q127 Lord Howie of Troon: Do you have any
idea what the current cost is?
Mr Brinkley: I do not; I do not think we have
a figure.
Mr Sellers: I do not think there is a robust
analysis by anyone.
Q128 Lord Howie of Troon: Nobody knows yet.
Mr Sellers: It is difficult to foretell. Obviously
there will be some benefits from having a robust look at working
time as well, if it is accepted, as it is, that this directive
is a health and safety measure, there will be benefits in terms
of reduction in number of accidents, people off sick from work
and a number of mistakes made at work as well.
Q129 Baroness Howarth of Breckland: Bearing
in mind this question of choice and good practice, if a way were
found to ensure that employers did not abuse this right, do you
think that you would view this any differently?
Mr Brinkley: We would be very sceptical. We
have tested it, we have tested whether we can go down the voluntary
route through the opt-out to see whether we could get a satisfactory
position and in our view you clearly cannot. We would be sceptical
that putting in enforcement alone would actually solve the basic
problem. You need good enforcement whether you have the opt-out
or not, but we have tested this and it has not worked and we really
do need to move on.
Mr Sellers: We are doubly concerned where workers
are under pressure to opt out and to work long hours. Even if
that were removed, we would still be concerned about the health
and safety implications of long hours.
Chairman: Thank you very much. Can we
move on to possible variations between the sectors? Obviously
there are certain categories of work where the workload is very
uneven, others where it is not.
Q130 Lord Harrison: Clearly there are differences
between different sectors in the application of the Working Time
Directive and there are differences in terms of small businesses
as opposed to medium-sized and larger businesses. Would you say
that was true in both those cases? Do you think that we might
have a more sophisticated approach, if we do revise the Working
Time Directive to take into account these variations for the benefit
of everyone?
Mr Brinkley: At the moment we do not have good
information on whether there is a difference between small and
large employers in terms of the variation of hours. The various
statistics looked at do not allow you to test that directly so
we are speculating a little bit. I think we would be reluctant
to go down the route of having sectoral or regional variations.
It simply makes the measure much more complicated. Our assessment
is that the minimum wage has been a big success in terms of its
introduction precisely because the government resisted the pressure
to introduce sectoral and regional variations. The Working Time
Directive works well if it is simply applied right across the
board and we do not have these variations. Where we do need a
more sophisticated approach is finding out what best practice
is in these various sectors and how they could tackle the problem
in different ways to take account of different circumstances.
Trying to find out more on a sectoral basis about how they might
apply the directive in practice and what sort of changes of work
organisation that would need would be a useful exercise, but we
would not want to go down the route of sectoral variations.
Q131 Lord Harrison: So we agree that we
ought to find out more, but most of us would instinctively feel
that most small businesses have a greater burden from time to
time because of the smaller workforce which is required to be
more mobile. I have in mind particularly reference periods and
also certain industries, like tourism, leisure and hospitality
industries. Whilst I understand your argument analogous to the
minimum wage, being more sophisticated about this might actually
help those particular industries to be competitive and those who
work in them to have greater satisfaction.
Mr Brinkley: Our view is that there is quite
a lot of flexibility in the directive already. It is not a rigid
48 hours every single week. You can comply within the reference
period. There really ought to be enough flexibility within that
to cope with short-term fluctuations and demand from week to week,
whether you get a particular rush or not, as long as it is compensated
with lower working hours further down the line. At the moment
I feel that there is enough there, provided people apply it in
the spirit it is intended to be applied and there is a ready source
of advice and help for small businesses to find out how they ought
to do it. Certainly my experience through the work of the Low
Pay Commission is that small businesses quite often want to comply
with the regulation and want to implement it, but they do not
know how. Trying to tell them how they can do it, giving them
practical examples, is a very important part of moving this directive
into practice.
Q132 Lord Howie of Troon: One sector springs
to mind which has difficulties and that is the exhibition industry,
where life consists of a series of relatively small contracts
coming, if you are lucky, one after another and each of them facing
what is almost always a very tight deadline, sometimes requiring
a rush of work to complete on time. You will be well aware of
this. What do you feel about it?
Mr Brinkley: It does not seem to have inhibited
the successful development of a very vibrant exhibition industry
across Europe. Other European countries are facing exactly the
same sort of pressures that we are in terms of competitive demand
and they do not seem to have any problems in adapting to it. While
I agree that it is an industry which is affected by these short-term
fluctuations in demand, it does not seem to cause a problem elsewhere,
so I am not clear why it should cause a huge problem for the UK
industry. If the French, the Germans and the Italians can cope
with the directive, I am sure we can.
Q133 Lord Howie of Troon: I am pleased to
hear all your geese turn out to be swans.
Mr Brinkley: We always like to take an optimistic
view of progressive measures from the labour market and I think
this will be a progressive measure.
Mr Sellers: We have tried to do some statistical
analysis to find out where the peaks and troughs are in different
industries and although there is limited material to work with,
we have found it quite hard to find a justification for longer
reference periods from that analysis, the current reference period
being 17 weeks for most circumstances, but with the chance of
moving up to 52 weeks by collective bargaining or workforce agreement.
Every employer actually does have the option to move to annualised
hours.
Chairman: In any revision of the Working
Time Directive the reference period might be different; it might
be longer. There are all sorts of possibilities which are not
ruled out. It does make a difference of course to those who have
fluctuating work. Could we turn to the question of women in the
labour market, a point which has been raised by you and many of
our other witnesses; the effect of the Working Time Directive
on the position of women in the labour market? We have quite a
good record in the UK, but it is nevertheless something which
is worth discussing.
Q134 Baroness Massey of Darwen: The longest
hours I ever did anywhere were in childcare; but that does not
count, does it? In your written evidence you say that the UK tendency
to long hours is adversely affecting the position of women in
the workforce. But we have been told that the UK rate of female
participation is about 74 per cent, which is the highest in the
EU and above even the Lisbon target for 2010. How do you reconcile
those statements?
Mr Brinkley: One of the reasons why we have
such a high level of female participation is because we have a
lot of part-time work. That has undoubtedly drawn a lot of women
into the labour market over the last 20 or 30 years. It is rather
different to the long-hour argument. We do not have high female
participation because we have long hours working. We have had
a high female participation because we have been able to expand
the number of part-time jobs in the economy. I do not think those
two statements are actually irreconcilable.
Mr Sellers: We are actually getting at something
rather different there, which was that the persistence of long-hours
working in certain jobs, certain occupations, actually puts women
at a disadvantage and discourages them from going into those occupations.
We are thinking particularly about the top jobs, about managerial
jobs and also about certain traditional male occupations. Manufacturing
might be an example. I mentioned HGV driving earlier which has
the longest average hours of any occupation and half a per cent
of HGV licensed drivers are female.
Q135 Baroness Massey of Darwen: Going back
to the part-time issue, would you not agree that the number of
part-time workers points to the fact that there is a high degree
of flexibility in the UK labour market and that this would benefit
women who have young children or who have other responsibilities
such as caring.
Mr Brinkley: Very much so. I would see the terms
of part-time workers as a very positive development, provided
it is supported by access to adequate childcare and provided we
can tackle issues such as low pay. It has given us flexibility,
it has increased female participation and the figures do show
that the vast majority of women actually do want to work part-time.
It is not as though there is a high degree of involuntary part-time
working in this country. Yes, I would agree that part-time working
has helped the UK economy and helped the UK labour market.
Q136 Baroness Massey of Darwen: Is the issue
of the difference in childcare in Europe and here a factor in
all this?
Mr Brinkley: It is not a factor in terms of
the overall level of part-time working, but it does seem to be
fairly critical for the distribution of employment opportunities,
in particular between lone parents and between people who have
working partners. We have a very high rate of employment for women,
but one of the lowest rates of employment for lone parents and
there childcare does seem to be a critical issue and one of the
reasons why they cannot get into the labour market or take a job
when they are seeking work. The childcare issue is more to do
with the distribution and quality of employment, rather than the
actual level.
Q137 Baroness Massey of Darwen: You quoted
the Joseph Rowntree Foundation report which said that 80 per cent
of women with partners working more than 48 hours would like them
to work fewer hours. Did you ask whether they would still like
that if it meant less money coming into the household? Do you
think the directive might actually end up with some of the poorer
families bringing in even less money than they already do, because
of overtime topping up their income?
Mr Sellers: The Rowntree report was actually
quite broad and found a lot of aspects of problems for family
life which arose from long hours; that probably will not be a
surprise. If you are asking whether partners want long-hours workers
to take a pay cut—I am not sure that is quite the question;
that might be a false dichotomy in some way—60 per cent
of people who work long hours are doing extra hours without receiving
any overtime, so it is not clear how it would play out for managers
and professionals. It is very likely that their arrangements would
change and their salaries would stay the same. For those who do
receive overtime, it is not even clear that there would be a reduction
in that case. Certainly there will be losses in some cases, but
in many cases a change in the law is leading to bargaining over
productivity again; we are finding this very much in the Road
Transport Directive, where there is a robust limit and earnings
are either preserved as they are, or there is some cut, but it
is not a complete cut in line with the hours which are reduced.
Q138 Baroness Howarth of Breckland: From
where you sit, would you not accept that it is usually women,
who are paid least and therefore top up their hours with extra
hours, who are most likely to be hit by a reduction through the
Working Time Directive?
Mr Brinkley: That is the most difficult problem
we have to confront. Experience suggests that you can adjust wage
rates for low paid workers to take account of the reduction in
overtime, but it is best done through a negotiated process. I
would say that is the most difficult area for us as trade unionists,
as well as anyone else, to address.
Chairman: Can we go on to collective
agreements, where we know there is a difference of course between
the continental situation, or quite a lot of it, and the situation
here?
Q139 Lord Harrison: Could you just say a
little bit about why the incidence of the use of collective agreements
to determine the extension of working hours is so low in the UK
compared with our continental colleagues? Could I challenge your
paragraph 5.2 where you say "The TUC believe that any problems
arising from these judgments can be solved by collective bargaining.
All the sectors that are likely to be affected are heavily unionised".
I am very surprised you say that. To give the earlier example
of tourism, leisure and the hospitality industries, but there
are several others, would that they were unionised, but they are
not unionised. We face some very real difficulties here, or they
do, which is not true on the continent.
Mr Brinkley: The basic reason why there is such
a big difference of collective bargaining between us and the rest
of Europe is that in the rest of Europe collective bargaining
is by and large extended through statute. Agreements are just
run out across entire industries and that does give them an advantage
and they can introduce a lot of these new directives or new regulations
by working through social partnership arrangements. That is why
we have to rely rather more on directives to produce a change
in the labour market than in other countries. I think your second
point is more about the particular judgment affecting a relatively
small number of workers.
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