Memorandum by the Union of Construction,
Allied Trades and Technicians (UCATT)
INTRODUCTION
The Union of Construction, Allied Trades and
Technicians (UCATT) is Britain's only specialist construction
workers union with over 120,000 members employed in all building
trades, in both the private and public sectors. The union organises
workers in the United Kingdom and the Republic of Ireland.
The majority of small businesses and 9 per cent
of the UK's total workforce are employed in the construction industry,
therefore any changes to the Working Time Directive could have
a direct impact on the construction industry and the members we
represent.
We warmly welcome the opportunity to participate
in this consultation.
(i) The reference periods for determining
the working week:
1. UCATT are concerned that the reference
periods used by employers, are used in such a way to ensure that
the worker has no rights at all under the Directive.
2. It has been brought to our attention
from members all over the country that they are being made to
work seven days a week, 52 weeks a year because the reference
periods their employers have decided to use are 52 weeks. Please
see Annex 1.
3. The employers advise their workforce
that they signed the document (Please see Annex 1) and therefore
must adhere to it. One member informed us that when he asked for
a weekend off, in accordance with the weekly rest period regulation,
his employer refused him, on the grounds that any days off he
did accrue under the 52 weeks reference period, were now null
and void, as he could not carry his entitlements over from one
year to the next. This practice contravenes the spirit in which
the legislation was intended, and UCATT believe employers cannot
be allowed to get away with this.
4. The members are happy to inform the union
of their situation but will not take any action against the employer
while they are still in employment, for fear of being dismissed.
5. UCATT believe that all employers must
use the standard 17-week reference period, unless derogations
are made through the use of collective agreements.
(ii) The use of the individual opt-out:
6. Certain parts of the construction industry,
mainly the private sector have ignored the Working Time Regulations.
It is not uncommon for workers starting a new job to be told that
in order for them to begin work, they must sign an agreement,
absolving the employer of having to pay holiday pay and a statement
claiming they are prepared to work more than 48 hours a week.
In the TUC produced report "About Time" it stated that
1.07 million people employed as operatives or in skilled trades
were working excessive hours.
7. As the construction industry has one
of the worst industry safety records in the UK, then inferences
can be drawn between excessive working and accidents and fatalities.
By its very nature construction is an extremely dangerous industry
and fatigued workers cannot perform efficiently.
8. More than 500,000 workers work for more
than 60 hours a week in the UK, and just under 4 million people
work more than 48 hours a week. The fact that the Regulations
are not effectively enforced in the UK mean that there are substantial
sectors of workers who do not benefit from the Regulations. It
is often those who need protecting most, who are being exploited.
An opinion poll commissioned by the TUC found that two out of
three workers did not know that they had a legal right to work
less than 48 hours a week. Combined with employers who use the
opt out as a compulsory hurdle to starting a job, the legislation
is just not working. Long hours do not necessarily equate with
high productivity.
9. The underlying principle for the working
time limit is in reality a straightforward one, ie, the risk of
work related health problems increases with the number of hours
worked. Those working the longest hours are most likely to develop
such problems, including cardiovascular disorders, mental health
problems, stress related disorders, musculoskeletal problems and
digestive disorders.
10. It is no surprise that the risk of having
an accident at work increases significantly for hours worked above
48 per week, thus providing a clear justification for the limit
on working hours.
11. 30 per cent of construction workers
work more than 48 hours a week according to the Labour Force Survey
2001 and 47 per cent of construction workers would like to work
shorter hours, but do not have the choice.
12. What is too often ignored is that the
working time limit in the Working Time Regulations is a health
and safety measure.
13. UCATT believe that as long as the opt-out
remains there is little incentive for employers to reduce the
hours worked.
(iii) Ensuring compatibility between work
and family life:
14. UCATT believe that working excessive
hours, being denied rest periods and having no real entitlement
to annual leave can all lead to the breakdown in family life.
A report produced by the Joseph Rowntree Foundation titled "How
do they find the time?" Five extremely important points supporting
UCATT's belief.
— Long working hours have a negative
impact on families.
— Fathers who work in professional
and managerial jobs were least likely to be involved in the care
of their children.
— The long hours associated with these
sorts of jobs discourages some women from seeking promotion.
— Long hours, for either fathers or
mothers are associated with less involvement in children's activities
and the frequent disruption of family activities.
— 80 per cent of mothers whose partner
works more than 48 hours want them to work less.
(iv) Other matters for consideration:
15. UCATT also believe that in order for
the Working Time Regulations to be effective other parts of the
Regulations also need to be examined.
PROBLEMS RELATING
TO ANNUAL
LEAVE
16. Although UCATT appreciate that almost
5 million workers have benefited from this particular part of
the Regulations, there are still serious flaws in the implementation
of the Directive.
— There is no "real" enforcement
of the Regulations, if employers refuse workers the time off,
then unless they are prepared to go to an employment tribunal,
then they will not be able to take holidays.
— Public holidays can be counted as
part of the entitlement, as opposed to being counted separately.
— Many employers, especially in the
construction industry are still using "rolled up" rates,
52 week reference periods and in the more extreme cases, refusing
point blank to allow employees to take paid leave, by simply saying
"we don't pay it".
EMPLOYMENT STATUS
17. While construction workers are covered
by the same confusing employment status laws as other groups of
workers, they are also covered by tax laws specific to the industry.
Under the Construction Industry Scheme, introduced in 1999, workers
are now issued with registration cards (CIS4), which allows their
tax to be deducted at source by the contractor/sub-contractor
as a self-employed contractor. Although the cards are not a test
for self-employment, many employers will not accept workers on
a site without a CIS4 card.
18. The key UCATT decision on the definition
of a "worker" is contained in Byrne Brothers (Formwork
Ltd v Baird and others EAT/542/01).
19. UCATT have also had cases where workers
on a CIS4 card, have been threatened by their employer, with the
Inland Revenue Recovery team, unless they drop their claims for
holiday pay. Please see Annex 2.
20 This review of the Regulations must ensure
that all workers are allowed to take and to be paid for annual
leave.
ISSUES WITH
ENFORCEMENT
21. One of the main reasons UCATT believe
that UK employers will not reduce working hours is the lack of
enforcement.
22. When transposing a European Directive
into UK Law, one of the fundamental principles is that of enforcement,
and that an individual can ensure that their rights are enforced.
23. This is clearly not the case, workers
are unclear about their rights, there are "get-out"
clauses throughout the Regulations, allowing employers to deny
their workers these rights, often legitimately, and even where
the employers choose just to simply ignore their legal responsibilities
they can do so, in the knowledge that unless a worker complains,
no action will be taken against them. It is often the case, especially
in unrepresented workforces that a complaint will not be made,
as the workers will be threatened with dismissal.
24. The HSE are responsible for the enforcement
of the Regulations, but in most cases, only where a complaint
has been made. The HSE only employ a very small number of officers
who work in the Working Time area. They have no powers of entry
and no rights to issue enforcement notices.
25. UCATT believe that a rigorous enforcement
system needs to be in place, whether through the HSE or another
body, sufficient promotion of these rights to workers, especially
in unrepresented sectors, and the knowledge that they can be enforced.
Only then, can these rights be anything more than a paper exercise.
The evidence is being submitted on a corporate
basis.
19 February 2004
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