Persistence of time

Last September, the Government closed a consultation period on the current operation of the individual opt-out from the 48-hour working time limit, and ways of improving its application. Shortly afterwards, the European Commission (EC) adopted a proposal to revise some of the main features of the Working Time Directive.

The UK Government’s preliminary consultation paper on the current operation of the individual opt-out didn’t contain Government proposals for changes to the law. It’s now unlikely that any changes will be made ahead of those required by the EC following the proposal adopted at the end of September 2004. The Commission stated that it believed the proposal to be a “balanced package of interrelated measures” which attempts to “protect the health and safety of workers while introducing greater flexibility and preserving competitiveness”. Do business leaders in the security industry agree with that sentiment?

The main areas covered by the EC proposal are the 48-hour week opt-out, the reference period for calculating the 48-hour maximum working week, amendments to what’s defined as ‘working time’ (including a new definition of on-call time) and the new time limits for compensatory rest.

The opt-out clause examined

Arguably, it has been vital to the security industry’s efficient operation that the 48-hour maximum working week opt-out has been permitted since the introduction of the Working Time Regulations.

There had been much speculation as to whether the right to opt-out of the 48-hour maximum working week would be withdrawn entirely. Such a withdrawal, of course, would have meant a massive impact being felt in the security industry. In particular, there would have been knock-on effects in terms of the cost of contracts due to the increased manpower needed to service clients’ requirements where personnel currently work in excess of an average of 48 hours per week.

Indeed, many contracts discussed in recent years have been negotiated on the basis that the contractor would have the right to alter the fee should the 48-hour opt-out be withdrawn.

However, it’s arguable whether these increased fees would fully cover the additional costs associated with a withdrawal of the 48-hour opt-out. Almost certainly to the relief of the security industry, then, the new proposal doesn’t seek to withdraw the opt-out. Rather, it imposes tighter restrictions on opting out.

The new proposals introduce a dual system for opting out. Either the individual opt-out will require a prior collective agreement between unions and employers (with the expressed consent of each individual employee affected) or, if there’s no collective agreement in force – and no employee representation to negotiate such an agreement – the opt-out will require the employee’s consent only.

Contractors and end users should note that the following new restrictions are also to be imposed:

• the consent to opt-out cannot be given at the time the employment contract is signed, and nor can it be given at any time during a designated probationary period;
• the consent will have to be given in writing;
• the consent will be time limited to a maximum of one year – after that period is spent the consent has to be renewed;
• regardless of the opt-out, no employee can work for more than 65 hours in any one week (unless a collective agreement provides for a different limit);
• employers will have to keep up-to-date records of all employees who opt-out and, in addition, will have to maintain a record of the number of hours actually worked;
• the employer will have to make these records available to the appropriate authorities if required to do so;
• employees will be able to change their mind at any time and opt back in to the 48-hour limit – the opt-out agreement should state what notice the employee is required to give in order to opt back in to the limit (this notice shouldn’t exceed three months, subject to any agreement, otherwise the minimum period of notice to opt back in will be seven days).

The Commission proposes that Member States will be able to extend the reference period for calculating the maximum weekly working time from the standard period of four months (which is currently used) up to a period of one year. It’s hoped that this will allow the industry additional flexibility to respond competitively regarding short-to-medium term fluctuations in the demand for services.

However, the proposal states that the duration of the reference period cannot be longer than the duration of the employment contract. This will prevent individuals from being brought in on short term contracts to work excessive hours where they would not otherwise be opting out.

The Commission suggests two new definitions in its recent proposal, those being ‘on-call time’ and the ‘inactive part of on-call time’. The aim of these new definitions is to introduce a ‘mixed category’ concept which combines the concepts of ‘working time’ and ‘rest period’.

‘On-call time’ is defined as that period during which a worker has the obligation to be available at the workplace at the employer’s request to carry out his/her duties. The ‘inactive part of on-call time’ is a period during which an employee, although obliged to be available for work to carry out his or her duties, is not in fact required to carry them out. In its proposal, the Commission states that the “inactive part of on-call time” will not be counted as working time unless national legislation provides that it should do so.

Either the individual opt-out will require a prior collective agreement between unions and employers or, if there’s no collective agreement in force – and no employee representation to negotiate such an agreement – the opt-out will require the employee’s consent only

Ultimately, this will assist the industry where security personnel are required to be physically present at premises, but aren’t actually ‘on duty’.

Once the EC’s proposal is incorporated into UK law it will be clear that this time is going to be inactive on-call time, and will not count towards working time for the purposes of the regulations.

Periods of compensatory rest

In its current format, the Directive already provides that an employee is entitled to a minimum daily rest period of 11 consecutive hours in every 24-hour period. It also provides that, for each seven-day period, an employee is entitled to an uninterrupted rest period of 24 hours in addition to the 11 hours of daily rest. However, it’s possible to derogate from these provisions by giving compensatory rest. The new Commission proposal provides that an equivalent period of compensatory rest must be granted within a reasonable time where the requirements of minimum daily rest cannot be complied with, and – in all cases – within a time limit not exceeding 72 hours for daily rest.

Employers should try to afford workers adequate rest breaks between working hours as far as is possible. If not possible, employers will have to allow workers compensatory rest promptly for additional hours worked.

It’s often standard practice that the 48-hour maximum working week opt-out is included within the contract of employment. The proposal not to allow employees to agree to opt-out when they sign their contracts of employment – or during any probationary period – will therefore have a number of potential consequences. In particular, it’s likely that employees may be more willing to refuse to enter into an opt-out once they’re established in their position. The employer will not be able to treat employees to their detriment for refusing to do so.

If this is indeed a consequence of the proposals, the industry may need to consider adjusting patterns of work to deal with the possible consequence of more employees sticking to a maximum 48-hour working week. It may also be the case that the use of probationary periods is reduced as a consequence of this proposal. The probationary period has never given any additional legal protection to employers. If it also adds burdens on the employer, it would make sense that they were no longer specifically defined as probationary periods.

Employees who withdraw their consent to the opt-out – or who refuse to renew the opt-out at the end of the one-year period – will potentially cause organisational difficulties for their employer. However, they’ll be entitled to do so, and again the proposal may result in fewer employees opting out of the 48-hour limit. Businesses within the security industry will have to make relative adjustments to accommodate the wishes of their members of staff.

There’ll be an increased administrative burden on employers to keep records of those employees who are opting out, and the amount of working time they’re undertaking each week. Large numbers of businesses across all sectors have yet to embrace the Working Time Regulations regarding the keeping of records on working time, particularly where large numbers of employees opted out (and thus there wasn’t any need to keep records for such employees).

That said, now that the proposal suggests records will need to be kept of the hours worked by employees that do opt out, businesses will have to consider the most appropriate method of recording hours worked.

Towards the future

It’s likely that these proposed changes will come into force in the UK in late 2007 or early 2008. The date will depend on when the proposal is formally published as a Directive by the EC, after which time the UK will have two years to implement it as part of national law.

This is highly unlikely to be the end of the matter, though, as the European Parliament has approved a report calling for the phasing out of the opt-out by a majority. In addition, many Trade Unions across Europe – including our very own TUC – continue to argue that the only way forward is to phase out the opt-out altogether.

The EC’s proposal would seem to suggest that this is still some way off, but the private security industry must be prepared for the day when it will no longer be possible to ask employees to work more than 48 hours per week.