Memorandum by Amicus
Introduction
Amicus is the largest private sector trade union
in the United Kingdom, with over 1 million members. We represent
workers employed within the health sector, food, drink and tobacco,
local authorities, chemicals, pharmaceuticals and textiles, manufacturing,
automotive industry, construction, offshore, electrical contracting,
voluntary sector higher education, engineering, telecommunications,
information technology, energy, utilities, transport, aviation,
financial services, precious metals, steel, aerospace, shipbuilding,
defence, football league managers and the clergy.
Due to the diverse number of industries covered
by Amicus, both in the private and public sector, we have been
able to gain an understanding of the employment practices in the
workplace. We are able to provide an accurate account of the impact
Directive 93/104/EC on working people in the UK.
When the Working Time Regulations were first
introduced in 1998, Amicus undertook an extensive training programme
amongst its full time officials, shop stewards and senior representatives.
Since then the Union has worked hard to ensure that its members
understand the practicalities of the Regulations, as well as the
original Directive's aims and objectives.
In the period October to December 2003, Amicus
arranged a series of conferences for workplace representatives
in every region in the UK. In this way we were able to hear directly
from representatives and gain an excellent picture of working
time regulations within the UK.
We also conducted a survey in 2003 to investigate
the extent working long hours had on other aspects of people's
lives, in particular working parents.
Finally, as part of the EU Commission's consultation
on the Working Time Directive, in January 2004 Amicus undertook
a survey of its full time officials and key representatives across
a range of industries to answer the questions raised in the consultation.
1. THE REFERENCE
PERIOD
As the European Commission's consultation paper
makes clear, Article 17(4) of the Directive states that the reference
periods, for the purpose of calculating the average length of
the working week, can only be extended via a collective agreement.
These collective agreements can be secured in one or two ways,
either by collective bargaining between employers and unions,
or by agreement of elected representatives of the workforce in
the absence of union based collective bargaining. In the UK context,
the coverage of collective bargaining is significantly lower than
in other states—36 per cent compared with close to 100 per
cent in some other countries.
Many collective agreements on working time have
been concluded by Amicus representatives. In our view, there is
no real problem in the application of the provisions of article
17(4) to UK employers.
Amicus believes that the extending of the reference
period is a negotiating issue and therefore should be dealt with
via elected employee representatives, eg shop stewards and convenors.
These employee representatives are democratically elected by the
workforce and therefore have the experience and support of their
trade union organisation.
2. THE IMPACT
OF EUROPEAN
COURT CASE
LAW—ON
CALL
Many Amicus members work "on call"
in hospitals or otherwise in the National Health Service, in the
provision of care services in Non Profit Organisations, in manufacturing
and process industries and in service and maintenance occupations.
In most of these roles, "on call" means being available
to be called in from home, but in the case of laboratory and other
technical workers in the health service, as well as some workers
in non profit service providers, "on call" is provided
from the company premises.
Amicus is fully aware of the outcomes of the
SiMAP and Jaeger cases, with regards to the definition
of working time in relation to "on-call" work and that
the time spent by workers who are required to be on standby or
"on-call" in the workplace will count as working time.
In our view, it would be wrong to amend the
Working Time Directive to allow on-call workers to work long hours
in the special circumstances of their being on the employer's
premises. Evidence suggests that "on-call working" on
the employer's premises restricts workers in their ability to
rest and recuperate.
We note that the view of the European Federation
of Public Sector Unions (EPSU) is that the rulings in SiMAP
and Jaeger should be respected and we concur with that
view. The financial implications of the SiMAP and Jaeger
cases are considerable and we also accept that it is not simply
a matter of cost but one of practicability in increasing the numbers
of trained professionals to do the available work. Furthermore
we agree with the EPSU position that these problems are best dealt
with via the social dialogue process. We agree that the European
Commission should facilitate this process among other things by
use of the Hospital Social Dialogue Process at a European level.
Having regard to the fact that there are a number of other sectors
where the implications of the SiMAP decision could be applied
however, we believe it would be desirable for similar social dialogue
processes to be initiated in the affected sectors.
3. THE APPLICATION
OF ARTICLE
18.1 B) I)—THE
OPT-OUT
Amicus takes seriously the implications of working
time of its members and has therefore undertaken a comprehensive
programme, since the introduction of Directive 93/104/EC, to ensure
that its members are fully aware of the significance of the Directive
and the legal rights they derive from it.
Though the Regulations have forced some improvements
in holiday provisions and rest breaks for workers who were not
previously entitled to them, most workers have not noticed significant
changes as a result of their new legal rights. They have experienced
little or no impact on the overall length of the working week
for most people and excessive working hours remains a problem.
Amicus believes the 1998 Regulations provided
inadequate systems for enforcement as there were ample opportunities
for employers to undermine them by persuading employees to sign
away their rights to not work more than 48 hours a week on average.
Furthermore, many Amicus members have reported that "opt
out" clauses are regularly inserted into contacts of employment.
A refusal to sign can often result in the job offer being withdrawn.
Many Amicus members have reported being subjected
to working excessively long hours, The reasons given were markedly
different depending on the industry or sector. For example, health
sector workers reported that the main reason they work long hours
is out of "moral duty." Often their need to work those
longer hours is an issue of capacity: having to cover for a lack
of skilled and competent staff. The worrying outcomes of working
long hours does not only have serious implications on their own
health and safety and of others, but more importantly can lead
to life and death situations for those in their care due to the
nature of their work.
In contrast, workers within education, finance,
and voluntary sectors indicated that the reasons they worked long
hours were two-fold: management pressure to do so and an inability
to complete the tasks in the time allocated. The IT sector reported
similar problems. Within this sector it is suggested that the
development of an "on-demand" culture and the need for
24/7 service, had resulted in many workers being permanently "on
call".
In general industries and the crane, motor components,
and aerospace sectors the main reason cited for working long hours
was financial dependency. Within aerospace it was reported that
in many companies the average basic wage is around £12,000
a year and as a result many workers need to work between 15-36
hours extra a week in order to achieve a reasonable and decent
wage of between £20,000 to £30,000 a year. One respondent
suggested there is an extra pressure to earn more money because
house prices are increasing at a far greater rate than wages.
In addition, it was also reported that many workers are under
pressure from managers to work long hours. One participant stated
"[the company] won't put a ceiling on the overtime because
it knows it cannot run its business without it".
In these industries there is a pressure from
managers to work overtime with many employees being intimidated
and bullied into signing the "opt out", the consequence
of not doing this would result in the exclusion from any overtime.
One participant said: "It's the only way to earn a decent
wage." In the crane industry there were reports that workers
were working up to 80 hours per week. One respondent stated "members,
[if] they complain regarding the 48 hour opt out, believe that
employers may take action against them saying such things as,
`you are no good to us if you cannot work more than 48 hours'".
4. COMPATIBILITY
BETWEEN WORKING
AND FAMILY
LIFE
In October 2003 Amicus undertook a survey to
investigate to what extent working hours have a negative impact
on other aspects of people's lives. The survey also sought to
establish the extent to which parents are using their new statutory
rights to request a change or reduction in their working hours
to balance their work and family life better and asked how respondents
would spend time if they had more of it. The survey was aimed
at working parents. Over 3,000 completed questionnaires were returned.
The conclusions of the survey were useful in
pointing to the manner in which the UK Government should address
issues of Working Time with respect to working parents. It was
clear from the numbers of hours worked by respondents and the
negative impacts they reported, that working hours become problematic
for workers with child or other dependant care responsibilities,
well below the 48-hour ceiling laid down by the Working Time Directive.
Further, the frequency with which respondents identified flexible
working and reduced hours as desirable changes to their working
patterns, suggests that workers with care responsibilities face
a dual difficulty both in terms of length and organisation of
working time.
CONCLUSION
The manner in which the UK Working Time Regulations
were drafted has effectively ensured that the practical effect
of the Directive has been minimised in the UK. In particular,
the wholesale use of the opt-out has ensured that large numbers
of employees have continued to work beyond 48 hours a week. Moreover,
the mechanisms for enforcement of other rights provided under
the Regulations requiring individual employees to attend employment
tribunals and bring claims against existing employers, appears
to have neutered the main additional benefits which the Regulations
might have brought in terms of breaks, rest periods and holidays.
We believe that the Commission's review should take into consideration
these situations.
The objective of the 1993 Directive was to address
issues of health and safety. While this should continue to be
a driving reason behind further reforms, the needs of workers
for family life and work-life balance should also be included
in a more radical overhaul of the law in respect of work life
balance.
February 2004
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