USING THE WORKING TIME REGULATIONS 1998 The Working Time Regulations have been in force since 1st October 1998 and the TSSA has consulted with its legal advisors in producing the following guidance notes for lay representatives. Three major points that must be kept in mind when dealing with the Working Time Regulations are : 1. The Regulations are primarily concerned with the health and safety implications of working time. 2. There is a need to recognise that for some workers time really is money and less working time means less in their pockets. 3. The Regulations are a complicated piece of employment legislation and when in any doubt about their use or interpretation TSSA lay representatives should always seek advice from their Negotiations Officer or the TSSA Helpdesk. It is our aim here to highlight certain aspects of the Working Time Regulations where there may be scope to achieve better working conditions. The framework adopted is to broadly look at the Regulations and the threats, which they pose for employers. An understanding of those threats may enable negotiators to achieve better working conditions, particularly in those areas where members are complaining of over-work, under staffing and where, perhaps, absences due to stress related illness are prevalent. With this in mind we intend considering: 1. What is it that employers want from the Working Time Regulations? 2. What can trade unions obtain from such agreements? 3. On what indirect basis can the Working Time Regulations be used? What do employers want? The Working Time Regulations impose: a) restrictions on the ability of parties to reach agreements; b) a limit on management flexibility; c) a requirement for employers to maintain records. What employers want is control over when their workers work and over the circumstances under which their workers can be asked to work outside normal hours. The Working Time Regulations are seen as restricting this control. The rights under the Working Time Regulations are subject to variations (with limitations) and exceptions for some employees in certain circumstances. Quite how the Health & Safety Executive (HSE), Tribunals or Courts will interpret these exceptions is a matter of some uncertainty, i.e. a) Who falls within the unmeasured working time exception? Is it to be limited to those who decide when they work or could it be extended to individuals with contractual terms requiring them in effect to work such time as may be necessary to complete the tasks required of them?
b) In the special cases, within Regulation 21, do these exemptions apply by reference to a worker's job description/job title and therefore for all their activities at work or does it only apply when the activities in which they are involved at the time fall within one of the exceptions? c) Who are shift workers? The term is defined by reference to those who work shifts "whereby workers succeed each other at the same workstations according to a certain pattern". Does this mean that it applies only to workers who work at the same desk or at the same equipment? Or does it have a wider meaning such as at the same place of work and undertaking the same work? The Associations legal advisors tend to the view that the more restrictive interpretations are correct. The Working Time Regulations are after all Health & Safety legislation whose purpose would be undermined if the exceptions were widely interpreted. The Tribunals, the HSE and the Courts will however, ultimately address the matter. Whereas there is scope elsewhere within the Working Time Regulations for personal contracts to restrict some of the rights, an employer may only agree exceptions through workforce or collective agreement. Clearly they will face industrial relations problems, at least, if they were to seek agreements outside the agreed negotiating machinery. Reaching agreements with Trade Unions on exceptions and varying some of the rights under the Working Time Regulations reintroduces some certainty for employers. The absence of any agreement means that the Regulations apply without restriction and leave the employer potentially more exposed to challenges and, in some instances, criminal sanctions. Monitoring The Regulations introduce obligations on management to keep records of working time. There are considerable advantages for employees that these records have to be kept. However, there are good reasons why employers may want agreements on the reference periods for maximum working week provisions and night working provisions as they may simplify the ability to assess whether or not there have been breaches of the Regulations. The primary reference period for both the maximum working week provisions and night working provisions is 17 weeks. Unless otherwise agreed the reference periods are rolling ones and not consecutive periods, i.e. one 17-week period will commence today, another tomorrow, etc. This is a potential administrative nightmare, for employers, in terms of assessing whether or not there has been a breach of the maximum working week or night working provisions. There is therefore a major administrative advantage to employers to seek agreement that the reference period be a consecutive period (though this may not be to the health and safety advantage of members affected). Excessive hours Where there is already excessive hours working then the employer may look both to: a) extend the reference period for the maximum working week provision (which can only be achieved by workforce or collective agreement on specified grounds); and b) obtain individual opt outs.
Some employers will see opt outs as a means of undermining the collective position of the trade union and lay representatives and members need to be alert to this. A 48 hour opt out can be on such terms as are agreed between the employer and the individual worker and it is open therefore for individual workers to agree such terms for the opt out as they see fit. This provides the employer with an opportunity to undermine the collective bargaining arrangements and is of particular concern. Lay representatives should ensure that colleagues, agreeing to individual opt outs, are aware that they could be weakening the collective bargaining position of their colleagues. Any opt out has to be capable of being terminated by 7 days notice, unless otherwise stated in the agreement (up to a maximum of three months). There is no reason why the agreement of the individual member might be in terms authorising the Union to give notice on his/her behalf of terminating the agreement to opt out. Even if this is not achieved then if you were to obtain signed and dated notices to the employer from members then the risk of submitting these to the employer together could provide a considerable bargaining counter. What is it that we want? We want to stop employers, who cannot reach agreement with the trade union, seeking individual agreement either by way of opt out or, to the extent possible, variations in the primary rights. We wish to secure collective agreements to avoid workforce agreements, which are permitted by the working time regulations but are also outside the agreed negotiating machinery. There are opportunities to obtain "something in return" for what is wanted by the employers. The Regulations provide a number of issues for potential negotiation in order to qualify rights. There is no restriction, in theory, on what you could seek in return for agreeing to a qualification/exception, i.e. you could agree that night-time should be 12 midnight to 7 am in return for an improved allowances. The Definition of Working Time Working time means any period during which the member is working at the employee s disposal and carrying out his activities or duties, any period for relevant training and "any additional period which by agreement is to be treated as working time". Whereas agreement can be reached as to what is working time, the Regulations do not permit agreement to be reached as to what is not. This is an area where there is considerable scope for agreement to be reached by trade unions because there is little to be lost. There has been debate about whether a worker "on call" or "on standby" is "working" for the purpose of the Regulations. Our legal advisors view is that they are not, although where there are extensive restrictions placed on a worker on call or standby the position may be different. The problem for management is that where a worker is interrupted on work related business when on call or standby, that period of interruption is working time. When discussing periods of being on call or on standby, you should question the proposals of management for compensatory rest in the event that on call/standby periods are actually interrupted by requirements to work.
What is Night-Time? If the night worker provisions are to be relied upon there is merit in seeking to agree, with the employer, a definition of night-time, which is consistent with the patterns of work worked by members. Who is a Night Worker? There are two potential definitions within the Regulations. 1. a worker "who as a normal course, works at least three hours of his daily working time during night time". 2. a worker "who is likely, during night time, to work at least such proportion of his annual working time as may be specified for the purpose of the Regulations in a collective or workforce agreement". There have already been a number of disputes that have arisen as to what is meant by as a normal course within the default definition. The DTI guidance anticipates that it will include workers who as part of their normal pattern regularly work at least three hours of their daily working time during night-time. That would include somebody who works a pattern of earlies, lates and nights; it may also include somebody who works nights in one in four or even one in five days. It has been argued by a number of employers that "as a normal course" includes only those who work a majority of night shifts. We do not agree and the DTI do not agree but a large number of employers appear to be arguing the point. Special Hazards/Physical/Mental Strain A night worker as defined would enjoy additional protection if activities involving special hazards or heavy physical or mental strain. It is important to emphasise that whereas you can agree what falls within this definition you cannot agree that which does not. Duration and Conditions of Daily Rest Breaks Regulation 12 allows for the duration and terms on which the daily rest break be granted to be the subject of a collective or workforce agreement. Though there is provision for a minimum of 20 minutes, this does not preclude a collective or workforce agreement (including one already in force prior to the Regulations coming into force) determining a duration in excess of 20 minutes. Excepting Provisions for Night Workers. Daily and Weekly Rest and Daily Rest Breaks with Compensatory Rest. Scope for agreeing variations is limited to collective or workforce agreements. The ability to do so however is conditional on the employer granting compensatory rest or providing appropriate health and safety protection. The provisions governing compensatory rest beg the questions: how much compensatory rest is required and when should it be taken?
The compensatory rest should be an "equivalent period" to "a period which would otherwise be a rest period or rest break". If during what is to be an uninterrupted rest period of 11 hours there is, say, an interruption of one hour, is the compensatory rest period one hour, 11 hours or the balance of the 11 hour period remaining following the interruption? Employers will want to say one hour only, but in our view it should be 11 hours compensatory rest to which the member is entitled. The period, which would otherwise be a rest period, is 11 hours-uninterrupted rest. If the interruptions comprised 12 five-minute interruptions spread throughout the 11-hour period, the health and safety purpose of the Regulations would be undermined if the worker only enjoyed one hour's compensatory rest. Annual leave The extent of the impact of the annual leave provisions will be dependent upon the existing terms and conditions, which govern, amongst other things: the treatment of public holidays what pay currently represents the position on the termination of employment the timing of annual leave Other issues It would be unusual for a worker to know precisely the number of hours that they had worked so that they could assess whether or not the 48 hour average had been breached over a 17 week reference period. Union reps can reach appropriate agreements to allow either their individual members to have access to that information or, more appropriately, for safety representatives to see these records to assess if and where problems of excess working are arising and potential breaches of the length of night work provisions. Access can also be sought to the records maintained of those workers who have agreed to opt out. Health and Safety representatives have no express right to inspect records maintained under the Working Time Regulations. However, they are entitled to information from employers to enable them to fulfil their functions, which include the promotion and development in consultation with employers of measures to ensure health and safety at work. As the Working Time Regulations are a health and safety measure it would not be unreasonable for safety representatives to be entitled to information in respect of the records maintained under the Working Time Regulations. The Working Time Regulations, and particularly the records which are required to be maintained under them regarding working time and night working, may well provide useful evidence in stress claims progressed by employees against their employer complaining of overwork. Where, for instance, there is an accident at work, the injured party may complain that the injury was caused by another worker who had been overworked. Access to the individual's working time records may demonstrate this and may lead to potential liability for the employer.
Where there is concern about bullying at work and overbearing conduct, access to records of the time spent at work, by those workers involved, may assist in negotiating improvements to working patterns. This will apply not only for the member but also the working patterns of the managers who, possibly through overwork, demonstrate overbearing or bullying conduct. Where there are disciplinary proceedings relating to the actions of workers and there is concern that the problem is caused in part by over work then records can be sought from the employer as part of the evidence available. Another area which negotiators may wish to address is the maximum working week exception and the individual opt-out. A union cannot agree an opt-out on behalf of an individual worker, the individual worker has to do so personally. However, this does not prevent unions from agreeing, with an employer, the terms under which the employer agrees any opt out, i.e. that by reason of agreeing to the opt-out the employer agrees that any worker will not work in excess of, say, 60 hours in any one week. There needs to be a sanction for such an agreement that, as a collective agreement, is unlikely to be legally binding, i.e. that in the event of a breach then any agreement for the extension of the 17-week reference period would fall. Conclusion The real problem with enforcing the maximum working week provision and the length of night work provisions is that they are directly enforceable by the Health & Safety Executive. Though the sanction is a criminal one for breaches (and therefore should be a cause for concern for all employers) the lack of funding for the HSE means that in practice little is likely to happen for some time. The priority for the HSE will probably be the sweatshops, not those areas where workers have already had the benefit of trade union protection. While most, if not all, of the basic rights contained within the Regulations are already provided for TSSA members, the Regulations still introduce a formal framework for the organisation of working time and some level of protection against the more extreme excesses of overwork. Before using the more formal and legal remedies contained within the Regulations lay representatives should always refer to the Associations paid officials for guidance. Further Information Further information can be obtained from the TSSA Information Services Department or the Labour Research Department publication Working Time published in October 1998.