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Working Time Regulations have arrived, but are they... - A blackmailer's charter?
00:00 07 Oct 1998
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The first warning signs that the Working Time Regulations could
prompt severe industrial unrest have been hoisted. Even before the
new regulations came into effect last Thursday (1 October),
operatives on the Jubilee Line Extension signalled that the
48-hour-week maximum is going to be used as a bargaining tool to
increase wages on time-sensitive projects.
Electricians on all the JLE contracts refused to agree to the opt-out which would have allowed them to work the "site-designated" week of 66 hours. As a consequence the night shifts at London Bridge have been suspended.
As Contract Journal went to press (on Monday 5 October), the electricians were holding a mass meeting to decide on which course of action to take. The options are: a refusal to accept the opt-out agreement and only work a 48-hour week; an all-out strike; or using the Working Time Regulations as a lever to press for an increase in wages.
For the troubled JLE, where money is now of secondary importance to that of finishing the project in time for the millennium celebrations at the £780 million Dome site in Greenwich, the odds are in favour of the operatives being presented with a tempting offer to agree to working more than the regulatory 48 hours.
Even if the offer is accepted and work resumes, there is no guarantee that this will buy long-term industrial peace. One of the employee safeguards built into the new regulations is that workers have the right to withdraw from an opt-out agreement without fear of losing their jobs. Any agreement brokered will have to take this fact into consideration.
interest
Therefore, how London Underground and its new troubleshooter Bechtel handle this delicate situation is bound to be looked at with extreme interest by others working on time or politically sensitive jobs.
Although the regulations were only intended to improve the health and safety of employees, the legislation has opened the way for workers to flex their industrial muscles to get more money or better conditions. The high risk projects are those which have an immovable completion date such as those linked to the millennium celebrations - the Greenwich Dome and the new Millennium stadium in Cardiff are prime examples.
Other projects that could be a risk are those where shift working is commonplace, such as tunnelling and motorway construction or maintenance contracts. Some industry observers believe that these sorts of contracts together with those that are nearing completion, especially where there is no certainty of continuity of employment for the workforce, could also be targeted.
One trade union official, when asked if the regulations could be used as a lever to increase wages on time-sensitive projects or those nearing completion, paraphrased actor Ian Richardson's classic line in the television series House of Cards: "You might say that, but I couldn't possibly comment."
Even if the threat of industrial action does not materialise, construction costs are going to rise because of the new regulations.
Helen Boddy, a partner with solicitor Shadbolt andCo, says: "The feedback we get is that most of the labour agencies are writing to contractors saying that they have got to put up the rates. Those contractors which rely on agency operatives are being forced into a corner but some contractors are putting their foot down, saying that is up to the agencies to absorb the extra."
Dermott McGinley, managing director of labour agency McGinley Holdings, says that rates have got to go up: "The direct cost of the holiday-with-pay entitlement of three weeks is going to add 6.13 per cent to rates. And when the entitlement goes up to four weeks in November 1999, there is going to be a further increase." He says that he has not worked out what this further increase will mean to labour rates come November 1999.
He also predicts there will be problems with the B&CE benefits scheme, which is backed by unions and employers and runs the official holiday-with-pay scheme. Currently an operative with a full year's credits would receive just over £190 for five days' leave. McGinley remarks that the big earners in construction are getting up to £18 per hour, equal to £864 for a 48-hour week, and "they are not going to be too happy."
However, McGinley remarks that the feedback he is getting is that clients are resigned to paying the extra money resulting from the new legislation. He also believes that there will not be widespread industrial unrest and that "contractors are used to planning for long working hours, now they will have to plan on a more formal basis."
implications
John Bothamley, director of labour agency Men at Work, thinks differently about both the cost implications and the potential for unrest. Bothamley remarks: "The dilemma exists that most of the so-called self-employed and agency workers are paid on a higher level." He adds that "the market has dropped back a little," and therefore he does think that an increase in labour rates would stick.
Bothamley also thinks that the opt-out clause will be used to force up wage rates: "There are bound to be little local disputes and arguments."
Solicitor Boddy thinks likewise: "Contractors are not going to have any control (if operatives decide to suspend the agreement)."
Speculation is rising that the new legislation is certain to encourage whistleblowers to inform on firms which break the regulations. This also seems to be the thinking at the Health and Safety Executive - it is employing an extra seven inspectors.
At present, the HSE has no plans to send inspectors out on policing visits - instead it will wait until informed of any misdemeanours.
Also uncertain is the way the legislation is going to be interpreted. Adding to the confusion is a recently introduced guidance note from the Department of Trade and Industry, which defines night and shift working in different terms to the regulations.
Instead of a night or shift worker being defined in the regulations as one who works a "majority" of the time on nights or shift duties, the DTI reclassifies the period as a "significant" amount of their working time.
Just how this and all the other issues will be interpreted by the Employment Tribunals is uncertain. Boddy remarks: "The Employment Tribunals will be waiting for case law to develop and I don't think that will be very long."
Electricians on all the JLE contracts refused to agree to the opt-out which would have allowed them to work the "site-designated" week of 66 hours. As a consequence the night shifts at London Bridge have been suspended.
As Contract Journal went to press (on Monday 5 October), the electricians were holding a mass meeting to decide on which course of action to take. The options are: a refusal to accept the opt-out agreement and only work a 48-hour week; an all-out strike; or using the Working Time Regulations as a lever to press for an increase in wages.
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For the troubled JLE, where money is now of secondary importance to that of finishing the project in time for the millennium celebrations at the £780 million Dome site in Greenwich, the odds are in favour of the operatives being presented with a tempting offer to agree to working more than the regulatory 48 hours.
Even if the offer is accepted and work resumes, there is no guarantee that this will buy long-term industrial peace. One of the employee safeguards built into the new regulations is that workers have the right to withdraw from an opt-out agreement without fear of losing their jobs. Any agreement brokered will have to take this fact into consideration.
interest
Therefore, how London Underground and its new troubleshooter Bechtel handle this delicate situation is bound to be looked at with extreme interest by others working on time or politically sensitive jobs.
Although the regulations were only intended to improve the health and safety of employees, the legislation has opened the way for workers to flex their industrial muscles to get more money or better conditions. The high risk projects are those which have an immovable completion date such as those linked to the millennium celebrations - the Greenwich Dome and the new Millennium stadium in Cardiff are prime examples.
Other projects that could be a risk are those where shift working is commonplace, such as tunnelling and motorway construction or maintenance contracts. Some industry observers believe that these sorts of contracts together with those that are nearing completion, especially where there is no certainty of continuity of employment for the workforce, could also be targeted.
One trade union official, when asked if the regulations could be used as a lever to increase wages on time-sensitive projects or those nearing completion, paraphrased actor Ian Richardson's classic line in the television series House of Cards: "You might say that, but I couldn't possibly comment."
Even if the threat of industrial action does not materialise, construction costs are going to rise because of the new regulations.
Helen Boddy, a partner with solicitor Shadbolt andCo, says: "The feedback we get is that most of the labour agencies are writing to contractors saying that they have got to put up the rates. Those contractors which rely on agency operatives are being forced into a corner but some contractors are putting their foot down, saying that is up to the agencies to absorb the extra."
Dermott McGinley, managing director of labour agency McGinley Holdings, says that rates have got to go up: "The direct cost of the holiday-with-pay entitlement of three weeks is going to add 6.13 per cent to rates. And when the entitlement goes up to four weeks in November 1999, there is going to be a further increase." He says that he has not worked out what this further increase will mean to labour rates come November 1999.
He also predicts there will be problems with the B&CE benefits scheme, which is backed by unions and employers and runs the official holiday-with-pay scheme. Currently an operative with a full year's credits would receive just over £190 for five days' leave. McGinley remarks that the big earners in construction are getting up to £18 per hour, equal to £864 for a 48-hour week, and "they are not going to be too happy."
However, McGinley remarks that the feedback he is getting is that clients are resigned to paying the extra money resulting from the new legislation. He also believes that there will not be widespread industrial unrest and that "contractors are used to planning for long working hours, now they will have to plan on a more formal basis."
implications
John Bothamley, director of labour agency Men at Work, thinks differently about both the cost implications and the potential for unrest. Bothamley remarks: "The dilemma exists that most of the so-called self-employed and agency workers are paid on a higher level." He adds that "the market has dropped back a little," and therefore he does think that an increase in labour rates would stick.
Bothamley also thinks that the opt-out clause will be used to force up wage rates: "There are bound to be little local disputes and arguments."
Solicitor Boddy thinks likewise: "Contractors are not going to have any control (if operatives decide to suspend the agreement)."
Speculation is rising that the new legislation is certain to encourage whistleblowers to inform on firms which break the regulations. This also seems to be the thinking at the Health and Safety Executive - it is employing an extra seven inspectors.
At present, the HSE has no plans to send inspectors out on policing visits - instead it will wait until informed of any misdemeanours.
Also uncertain is the way the legislation is going to be interpreted. Adding to the confusion is a recently introduced guidance note from the Department of Trade and Industry, which defines night and shift working in different terms to the regulations.
Instead of a night or shift worker being defined in the regulations as one who works a "majority" of the time on nights or shift duties, the DTI reclassifies the period as a "significant" amount of their working time.
Just how this and all the other issues will be interpreted by the Employment Tribunals is uncertain. Boddy remarks: "The Employment Tribunals will be waiting for case law to develop and I don't think that will be very long."
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