APPENDIX 2: CORRESPONDENCE WITH THE GOVERNMENT
Letter from the Secretary of State for Business Enterprise
and Regulatory Reform to Lord Grenfell dated 28 May 2008
I am writing to outline the Government's position
on the Working Time and Temporary (Agency) Workers Directives.
I attach the Slovene Presidency's proposals on both Directives,
on which they have indicated an intention to reach political agreement
at the Employment Council on 9 June.
On Working Time, the new text is a further
step forward. The issue surrounding legal certainty on use of
the opt-out has been clarified and the 12 month reference period
for offshore workers has been re-instated. There is also important
additional flexibility for short-term contracts regarding restrictions
on the early use of the opt-out, and the maximum cap on working
hours. The text also strengthens previous wording on the reconciliation
of work and family life. The text addressing the issues raised
by the ECJ SIMAP and Jaeger judgements remains as
previously agreed.
The Government is optimistic that this new proposal
can provide a basis for agreement. Our priorities will remain
a solution to the problems caused by the SIMAP and Jaeger
judgements, and the retention of the individual right to opt
out of the 48 hour maximum working week, without unnecessary restrictions.
We will continue to pursue these, and to ensure that the new text
on work/life balance is consistent with Government policy on the
right to request flexible working.
The new text on Agency Workers (on which we
are separately providing an updated Explanatory Memorandum at
the Committees' request) is also a significant step forward. Importantly,
it provides a means of basing UK implementation of the Directive
on the agreement announced between the CBI and TUC on this issue
on 20 May. In doing so, the new text provides the UK with similar
flexibility to that previously available to other Member States,
in particular those with an established practice of implementing
Directives via collective agreements, to derogate from the equal
treatment principle on the basis of social partner agreement.
The Government considers that the CBI-TUC agreement
will deliver fairer treatment for agency workers without removing
the important flexibility agency work can offer both employers
and workers. A copy of the agreement was sent to your Committee
clerk on the day of the announcement and is attached for information.
The agreement deals with a number of key issues,
in particular an appropriate qualifying period—after 12
weeks in a given job there will be an entitlement to equal treatment.
The agreement uses the terminology in the draft Directive to define
the scope of equal treatment ("basic working and employment
conditions") and how the principle would be applied in individual
cases (workers should be treated at least as well as if "they
had been recruited directly by the hirer undertaking to occupy
the same job"). It also clarifies that equal treatment should
not extent to occupational social security schemes.
The Government therefore believes that there is now
for the first time a real possibility of securing agreement acceptable
to the UK on both these dossiers. We believe this can be achieved
at the 9 June Employment Council, ending six years of deadlock
in the EU. It is highly likely that alternative proposals will
emerge on both texts in the run up to the Council and at the Council
itself; on which the extremely tight timetable will unfortunately
not enable me to seek the Committee's further views, If a deal
is on the table that addresses UK concerns and is acceptable on
one or both these dossiers, I hope the Committee can agree that
we should accept it. I would of course write to you as soon as
possible after the Council with more precise details of the terms
of the agreement. Pat McFadden is of course due to meet the Committee
on 10 July to discuss both Directives.
Letter from Lord Grenfell to the Secretary of State
for Business Enterprise and Regulatory Reform dated 5 June 2008
Your letter of 28 May on the above amended proposals
was considered by Sub-Committee G (Social Policy and Consumer
Affairs) at its meeting of 5 June 2008.
We very much welcome the progress that has been made
in negotiating these proposals and we urge you to continue to
press strongly for revised text that meets the points which are
of outstanding concern for the UK. We would welcome your assurance
that the definitions of "temporary agency workers" and
"temporary agencies" used in the draft temporary agency
workers directive are sufficiently clear to ensure that the scope
of the directive is appropriate.
We consider a high level of flexibility to be crucial
in both directives but we also believe that the success of the
directives in protecting workers will be dependent on the application
of robust enforcement mechanisms in order to avoid any abuse.
We note that you still aim to secure an improved
text on clarifying the application of the SiMAP/Jaeger judgements
to the revised Working Time Directive. This is an issue that we
take extremely seriously and we regret the lack of information
on that matter in your letter.
The continuing uncertainties are such that we are
not in a position to release either of the documents from scrutiny.
However, we do feel that, if the opportunity arises at the 9 June
Employment Council meeting to join political agreement to texts
that remove the long-standing UK problems with both of the proposals,
you should take it.
We would not regard your agreement to either or both
of the revised proposals in those circumstances as a breach of
the House of Lords Scrutiny Reserve Resolution of 6 December 1999.
Under the terms of section 3(b) of that Resolution, we indicate
that such agreement need not be withheld.
We look forward to discussing the outcome of the
Council with your ministerial colleague, Pat McFadden MP,
on 10 July. In advance of that meeting, it would be helpful if
you could write to us describing the outcome of the 9 June Council
meeting and addressing the other issues raised in this letter,
including the implications for the SiMA P/Jaeger judgements.
Letter from the Minister for Employment Relations
and Postal Affairs to Lord Grenfell dated 20 June 2008
Further to my letter of 28 May, I am pleased to inform
the Committee that political agreement was reached on the Working
Time and Agency Workers Directives at the 9 June Employment Council.
I attach the texts on which agreement was reached, both of which
represent good outcomes from a UK perspective.
On the Working Time Directive, the agreed text addresses
the two priority objectives outlined in my earlier letter. There
is a solution to the problems caused by the SiMAP/Jaeger
ECJ judgments, enabling Member States to classify 'inactive on-call
time' as rest in certain circumstances and providing increased
flexibility on when compensatory rest can be taken. And, crucially,
the right for individuals to opt-out of the 48 hour maximum working
week is retained, with a review clause that does not imply an
end date or any phasing out.
The text includes a number of safeguards on the use
of the opt-out, including a maximum cap on hours of 60 (or in
some circumstances 65) hours averaged over 3 months, a 'cooling-off
period' of 6 months (or possibly longer if there is a probation
period) and a ban on opting out in the first four weeks of a contract.
However, there is important flexibility for workers on short-term
contracts (up to 10 weeks per year with the same employer), enabling
them to opt-out from day 1 and not be bound by the cap. The text
is also a step forward as regards the reference period, with the
time for calculating an average week's work in the UK effectively
set at six months (compared with four months in the current Working
Time Directive). Finally, the text also includes a provision on
the 'reconciliation of work and family life' which, unlike the
draft attached to my previous letter, is consistent with the Government's
established policy that the interests of parents and carers be
given priority by legislation on the right to request flexible
working.
On the Agency Workers Directive we were able to achieve
agreement on a text which means the UK can fully implement the
recent agreement between the CBI and TUC. This includes specific
references to a qualifying period and to the ability of a Member
State to decide whether occupational social security schemes,
including pension, sick pay or financial participation schemes
are included (or excluded) from the definition of pay. These changes
are in Article 5(4) of the text.
Political agreement was achieved by a qualified majority
on both dossiers. Member States abstaining or voting against did
so primarily because of opposition to the very positive text (from
a UK perspective) on the Working Time opt-out, a number of them
expressing hope that the text will 'improve' in this regard during
the European Parliament's consideration of the texts. It will
be important, therefore, to engage with the European Parliament
in advance of its second reading of both directives to ensure
the texts remain as close as possible to the current drafts.
Letter from the Minister for Employment Relations
and Postal Affairs to Lord Grenfell dated 10 September 2008
I refer to your letter of 5 June in which you advised
that the Committee is not in a position to release either of the
above documents from scrutiny, and to my letter of 20 June outlining
the political agreement that was reached on the Working Time and
Agency Workers Directives at the 9June Employment Council. Further
to my meeting with Sub-Committee G on 10 July, I am now writing
to keep the Committee informed of the latest developments and
to seek your agreement to voting in support of adopting the Common
Position at the General Affairs and External Relations Council
on 15 September.
Agreement on a Common Position on both Directives
was reached on 6 August; the texts of both Directives are the
same as the texts agreed on 9 June (subject to changes agreed
by jurist linguists). The next step will be for the General Affairs
and External Relations Council to formally adopt the text of the
Common Position on 15 September. As you will be aware, this is
the formal next step in the process (and does not involve any
change in Government policy) so that both Directives can be submitted
to the European Parliament for Second Reading on 22 September.
Although the Directives are still held under scrutiny reserve,
I would appreciate your agreement to vote in support of the Common
Position. We will of course continue to keep your Committee informed
of developments.
We will of course be engaging with the European Parliament
in advance to preserve the texts as currently drafted.
| 
