New proposals from the European Commission will tighten the conditions that apply to the individual's opt out from the 48-hour working week. Sarah Lamont explains the impact that this will have upon the facilities management industry
26 November 2004
The European Commission's (EC) recent proposal for amendments to the Working Time Directive has important implications for FMs and FM providers. In particular, the EC is proposing a significant tightening of the conditions that apply to the individual opt-out from the 48-hour working week.
It was the UK that originally negotiated the individual opt-out, and to date it has been the only member state in Europe to make widespread use of it. Under the present arrangements set out in the Working Time Regulations 1998, workers are subject to a 48-hour limit on their average weekly hours of work. But individuals may opt out of that limit by written agreement with their employer. Workers may give written notice to terminate the agreement at any time, and may not be subjected to any detriment for refusing to sign an opt-out.
The EC's proposals effectively give trade unions a veto over whether individual workers can agree to sign an opt-out. In workplaces where unions have bargaining rights, it will only be possible for FM providers to use opt-outs for their staff if a collective agreement expressly allows this and the individual worker gives his consent. It is only where no such agreement is possible - because there is no collective agreement in force and no other form of collective negotiation - that individual consent can be obtained by the employer directly, without the need to seek the union's approval.
In either case, the conditions for individual consent will be more stringent. The EC has expressed concern that the opt-out agreement is normally signed when a worker signs his employment contract - a practice which, in its view, undermines the worker's freedom of choice. Accordingly, it will no longer be possible for an opt-out to be entered into at the time when the employment contract is signed or during any probation period.
In all cases in which opt-outs are allowed, the EC proposes that a worker's agreement will be valid for a maximum period of one year, although the agreement can be renewed. Crucially, there will also be an absolute maximum weekly limit on working hours: no worker will be allowed to work for more than 65 hours in any one week unless a collective agreement provides otherwise.
If the proposal is adopted, there will be changes to the current record-keeping arrangements in respect of opted-out employees. The EC believes that the clear intention of the Working Time Directive is that employers should keep a record of hours actually worked by individuals who have signed an opt-out. The UK legislation used to require this, but the Working Time Regulations were amended in 1999 so that employers only had to keep a copy of the opt-out agreement. The proposal stipulates that employers must keep up-to-date records of all opted-out workers and of the hours actually worked by them.
The duty to keep records of the hours worked by opted-out staff, and the need to seek a renewal of the opt-out every 12 months, are likely to increase the administrative burden on facilities managers and FM providers. There is, however, some good news. In relation to workers who have not opted-out, and who therefore remain subject to the 48-hour weekly limit, there will be additional scope for extending the reference period over which those hours are averaged.
At present the 48-hour limit is calculated over a basic reference period of 17 weeks. This is automatically extended to 26 weeks in certain cases, including where the worker is engaged in security and surveillance services requiring a round-the-clock presence, or where the worker's activities involve the need for continuity of service, one example being the provision of 24-hour reception services. It is possible to specify a longer reference period of up to 52 weeks but at present this can only be done by a collective or workforce agreement.
The difficulty identified by the EC is that only 22 per cent of UK workers in the private sector are covered by collective bargaining. As a result, the scope for agreeing to extend the reference period to 52 weeks is, in practice, rather limited. To address this problem, the EC proposes to remove the six-month (26-week) extension and make it possible for member states to legislate to extend the reference period up to one year. This reflects the trend towards annualised hours and will assist those facilities management providers whose business is subject to seasonal fluctuations, as in the case of building maintenance and grounds maintenance.
There will also be changes in relation to rest periods. The present position is that workers are entitled to a daily rest period of 11 hours and an uninterrupted weekly rest period of 24 hours. The directive already recognises that in the case of certain individuals, such as security guards and shift workers, it may not always be possible to guarantee these rest periods. In this case, the employer must offer an equivalent period of compensatory rest at a later date.
Recent case-law of the European Court of Justice has suggested that compensatory rest must be given immediately after the period of work involved, but the new proposals allow employers more flexibility. They provide that compensatory rest must be granted within a reasonable time and, for daily rest, within a time limit not exceeding 72 hours.
The EC's proposal is likely to invite a mixed response from the FM sector. The conditions that attach to individual opt-outs from the 48-hour week will be much stricter, although there will be slightly more scope for flexibility in relation to working patterns for those workers who have not opted out. These provisions will be of particular benefit to employers who use annualised hours contracts or whose staff are engaged in shift-work.
The proposals are now subject to ratification by the European Parliament and Council, and it remains to be seen if they will find their way on to the statute book in their current form.
Sarah Lamont is a partner in the employment department at Bevan Brittan Solicitors