Britain - Working hours - the more they are "cut", the longer they get

Jan/Feb 2004

When they came into force, on 1st October 1998, the Working Time Regulations were the first piece of legislation ever introduced in Britain which limited working hours for all, in almost every field of activity - to a maximum of 48 hours per week. It was also the first time that British law imposed minimum standards for workers' breaks, daily and weekly rest periods and paid annual leave, as well as a ceiling on working hours during the night.

At face value, these Regulations appeared as if they would provide workers with at least some protection against scrooge bosses - and possibly some improvement in their working conditions. The fact that they were hailed both by Blair's ministers and trade union leaders as introducing "major new rights" for workers, certainly would have fuelled this illusion. But only provided one did not take into account the small print, loopholes, traps and ambiguities which peppered this legislation - all of which, of course, were designed to provide the bosses with as much elbow-room as possible in order to twist the law to their own advantage, at workers' expense.

Five years on, predictably, the rhetoric about the advent of a "major shift in employees' work-life balance" - to use the managerial jargon of Department of Trade and Industry secretary, Patricia Hewitt - has worn extremely thin. Or to put it more crudely, instead of cutting working hours as it was meant to do, the Working Time Regulations have actually helped the bosses to make them even longer for a whole section of the working class. By the same token, they have been used as a device to worsen working conditions by pushing so-called "flexibility arrangements" down workers' throats. So much for Blair's "new rights for workers"!

The official figures available speak for themselves. In 1997, one year before the Working Time Regulations came into force, an analysis based on the National Labour Survey showed that 2.7m workers usually worked more than 48 hours per week. After five years of operation of this law, a similar analysis based on the same Labour Survey showed that 4.5m employees were now working more than 48 hours per week - a 66% increase in absolute and relative numbers, since, during this period, the number of full-time jobs remained more or less stagnant.

In fact, it is not just the long working hours, but also the very long ones which have increased. Thus, in August 2002, a survey commissioned jointly by the DTI's "Work-life balance campaign" and the magazine Management Today showed that the proportion of employees working more than 60 hours per week had increased by 33% in total, with the increase among women workers being 50%. However, quite logically for a magazine like Management Today, the DTI's concern in this survey was nothing to do with the burden of long hours on workers, but with the £370m cost of "stress-related sick leave" for business. And the DTI's advice to ease the stress of over-worked employees was not that they should work less but that, maybe, they should do a bit more sport, like... cycling to work!

Leaving aside the abysmal stupidity of this government's officials whenever they bend over backwards to please the bosses, the Working Time Regulations only illustrate once again a fact which has been part of the experience of the working class movement for a very long time. That is, that workers' rights, albeit enshrined in law by the state of the capitalist class, only work in our favour in direct proportion to the gains we make or do not make in the class struggle against the bosses. The fact that the bosses have been able to use the Working Time Regulations to attack working conditions is not a matter of legalistic wording, but rather a matter of how much the bosses felt they could manage to get away with - and so far they have got away with quite a lot. In this, of course, the low level of the class struggle over the past years and the willingness of the union machineries to act as the bosses' business partners have played a decisive role.

Of traps and loopholes

It is worth recalling the circumstances in which the Working Time legislation was introduced, its content and how it has evolved since.

If there was ever a piece of legislation reluctantly enacted by Blair's government, this was it. It took over two years for the 1996 European Working Time Directive to be implemented. Initially Major had mounted a legal challenge against this directive, which Blair continued to pursue after he got into power, on the grounds that the Directive would undermine the productivity of British industry. If Labour eventually gave in, it was only for fear that the government and British companies would have to face an endless series of costly law suits for breaking EU legislation.

The law which was eventually passed reflected primarily Blair's concern to keep the City and the CBI happy. And this remains true today, despite the three amendments to the original bill which have been forced on Blair in order to comply with the European directive.

True, weekly working was limited to a maximum of 48 hours. But this maximum could be averaged over a period of 17 weeks and, under certain conditions, this period could even extended to up to a year. Given this flexibility, the only limit to the number of hours worked daily was defined by the minimum 11-hour rest period per working day imposed by the new law (although even that did not apply in case of a shift change, for instance) and the 24-hour rest period in every seven days (which, again, could be averaged over 2 weeks). As a result, there was still nothing illegal in employers imposing a 78-hour week on their workforce (six times 13 hours)!

Besides, the very notion of "working time" was deliberately left open to all sorts of interpretations. For instance, time on call was not to be taken into account, nor, for instance, the time spent waiting for customers, where the employment contract stipulated that this time was not to be paid. Overtime worked at night was also to be disregarded, undoubtedly due to pressures from one industrial lobby or another. This latter exemption was all the more bizarre, as the bill included a provision which limited night working to 8 hours per 24-hour period (although averaged over 17 weeks).

In addition, much ambiguity was left as to whom exactly these provisions applied. Initially, due to a series of opt-outs negotiated with Brussels by Blair's government, whole industries were left outside the scope of the bill. The list including air, road and sea transport, inland waterways, sea fishing and doctors in training. These were all activities where very long working hours were both common and dangerous for safety reasons. And yet, ironically, this bill was purported to be a health and safety measure!

Since 1st August last year (2003), however, some of these categories have been reintegrated within the scope of the Working Time bill. Again, this was not exactly a voluntary step on the part of Blair's ministers. In fact, the original European directive included a time table for its extension to all workers. But Blair's government simply ignored it. And it took another directive, specifically aimed at Britain (the so-called Horizontal Amendment Directive) to get Blair to toe the line. But even now, not all the previously exempted categories are fully covered by the bill. The powerful Road Haulage Association, for instance, has won a special arrangement for workers driving large goods vehicles. The privatised train companies have ensured that on-board workers (catering crews, ticket inspectors, drivers, etc..) do not benefit from the provisions concerning breaks, daily and weekly rest periods and night work. As to trainee doctors, they will only benefit from the 48-hour/w maximum in... August 2009.

Of all the Regulations' provisions, the right to paid holidays has the smallest number of exemptions, particularly since the bill was amended to extend this right to all workers, whether permanent or not, part-time or full-time, from day one of employment. The Regulations now provide for 4 weeks (initially it was 3 weeks) paid holidays, although the DTI directives to employers stress that these holidays can include bank holidays - thereby making Britain the meanest EU country in terms of paid holidays.

Nevertheless some temp agencies still manage to work around the law by setting aside a proportion of each week's pay packet as "paid holidays" - meaning that in exchange for paid holidays, temps often take a real pay cut! In the building trade, where companies have forced a large proportion of the workforce into self-employment, the issue of paid holidays is at the centre of a permanent guerilla war. Many employers deny that any provision of the Working Time Regulations can apply to their workforce. So, for instance, the Northampton branch of the building union UCATT had to wage a 21-month battle in order to force shuttering contractors Byrne Bros to grant four of its self-employed carpenters the paid holidays to which they were entitled!

The opt-out scandal

The enforcement of maximum weekly hours and night work was left to the Health and Safety Executive and local authority Environmental Health departments - which meant that they would rarely be enforced given the notorious under-staffing of these bodies. As to the rest of the provisions - mostly breaks, rest periods and paid holidays - enforcement was left to employment tribunals, meaning that workers would have to climb over the hurdles of protracted legal procedures to get redress.

But even before there could be any talk of enforcement, Blair's ministers had built into the law the legal right to ignore it - the so-called "opt-out" provisions. Employers had two perfectly legal procedures to escape from their statutory obligations concerning the working week: they could get their employees to sign individual waivers in which they gave up any right to the 48-hour maximum; or they could organise negotiations with recognised trade unions or, in their absence, with ad hoc representatives of the workforces, in order to get an agreement on a collective waiver.

Predictably, the individual opt-out system has paved the way for all sorts of abuses. It was perfectly obvious that particularly in industries in which the level of casualisation is high - construction, hotel and catering, retail, etc.. - the system of individual opt-outs would become a vicious weapon in the hands of employers, allowing them to blackmail employees into accepting any patter of working hours - that is, as long as workers remain isolated in front of their employers, which, unfortunately, is often the case in these industries which are dominated by very small companies.

The TUC estimated recently that out of 1.6m workers who signed an individual waiver, over 370,000 were forced to do so, because it was a condition either to get their job or to keep it - though both are unquestionably illegal, even according to Blair's very ambiguous bill. But in addition, the same TUC survey estimated that out of the 4.5m employees working more than 48 hours per week, over 2.8m had not even signed an opt-out - meaning either that they were covered by a negotiated collective opt-out or that their employers just ignored the law, and both categories included not just cow-boy operators, but a host of very respectable companies.

This opt-out scandal, which made a farce out of the Working Time Regulations and its "maximum" 48-hour working week, has eventually caused some stirring in Brussels. Maybe the way Labour ministers have been all but bragging about the "good one" they had pulled on Brussels by taking the sting out of the Working Time Directive has got up the noses of some EU big guns. Or maybe it is the growing pile of law suits filed against the British government which has prompted Brussels to act - albeit very slowly, as usual.

After over a year of proceedings, involving fact-finding missions, piles of reports, representations from all parties concerned and, no doubt, a lot of behind-the-scenes horse-trading, the European Commission is meant to decide this January what measures it will take against Blair's pro-business opt-out of the 48-hour week - assuming it takes any, which still remains doubtful. After all, EU governments all share the same determination to turn the screw on the working class as much as possible. If some EU governments are less blatantly anti-working class in their implementation of the Working Time directive than Blair, it is not due to the pressure of EU institutions, but due to these governments' fear that they might not get away with it in their respective countries.

No bargaining away of workers' conditions!

Yet the legal road is, of course, the one favoured by the union machineries. The engineering and technicians' union Amicus, for instance, made much publicity around the legal case it mounted in Brussels against the guidelines published by the DTI to advise employers on the way they should implement the Working Time directive. Amicus won its case and the DTI had to change its guidelines - not in substance though, only in form. But, of course, this small humiliation inflicted on Blair and Patricia Hewitt changed nothing in the way the bosses were using this bill against workers. They do not need Hewitt to cross the t's for them, they know how to turn the screw on the workforce all by themselves.

Every union has thus been promoting the legal services it could provide to help workers against abuses of the Working Time Regulations. But at the same time, the same unions are helping to cause some of the worst abuses - and helping the bosses to get away with this - by bargaining away workers' conditions under the pretext of helping companies to use new working patterns to maximise productivity.

One example among dozens of others is provided by the TUC itself, as a sort of "model case study" for working time deals. At the Kellogg factory in Wrexham, which produces breakfast cereals for export, the company insists on having the factory operating 24 hours-a-day, seven-days-a-week. As if producing breakfast cereals was such a vital and urgent need for society that it could not accommodate a night's rest every day! Of course, for shareholders, lining their pockets may be the most urgent task in the world, but why should workers pay for this with their health?

In any case, the TUC case study describes the deal reached by Kellogg and the shopworkers' union USDAW as follows: "As part of an annualised hours system, staff have agreed to work a shift pattern of 12-hour day and night shifts. Instead of overtime, annual hours include a quota of 'banked' hours which employees can be asked to work at any time. The system, which gives long breaks between shift changes, also includes three 18-day breaks during the year." And the TUC writer concludes: "Kellogg has gained a substantial rise in the capacity of its plant (..) The 500 jobs at the factory are now more secure." On this last point, one can only be doubtful: proving to a company that it can achieve the same production with fewer workers is certainly not the best way to protect these workers' jobs! But leaving aside this nonsense about "saving" jobs which, all too often, is but a shameful pretext used by union leaders to conceal the most blatant sell-outs, what about these 12-hour shifts? Isn't it an established fact that alternating long shifts in production work are a killer even for the fittest workers? Of course, by reducing the number of shifts, a company can reduce the number of times production is interrupted - and the company gains. But workers are not machines, they need rest every day. And pooling rest days together into 18-day breaks may sound great, but is a con once the body starts wearing out after hundreds of 12-hour shifts.

But never mind! For the TUC and USDAW this is a "model agreement" which has "broken new ground." The TUC case study does not say anything about the misgivings or concerns that the plant's workers had. Probably, they never had a chance to say what they wanted until the deal had been sealed - that is if they were asked at all. However, the TUC report does mention one final interesting point. While workers probably did not have much of a say, a consultancy firm called PCA (Pasfield Curran Associates, which describes itself as "a leader in the introduction of flexible working and world class annual hours"), "worked closely with Kellogg management and USDAW, greatly assisting both parties in the design and development of the flexible working scheme." And the TUC warmly recommends PCA for its help in such negotiations. The fact that PCA's objective - and main selling point - is to maximise companies' profits is neither here nor there for the TUC. After all, aren't union leaders willing "partners" of the bosses, eager to help them boost the profits on their balance sheets - and on the workers' backs, since, as far as they are concerned, there is no other option.

Such agreements are not accidental exceptions, they are the rule when it comes to the union machineries' policies. Last July, the TUC even issued guidelines about what unions could bargain away in such deals. So, for instance, despite the TUC's official opposition to opt-outs, its guidelines say: "The opt-out is valuable to employers and may be used as a bargaining chip to ensure that there are real negotiations about ending long hours" - yes, negotiations in a distant future, in exchange for an opt-out today, hardly a good deal for those at the receiving end of the opt-out! And the same guidelines go on to explain how agreeing to "loosen" the various rights provided by the Working Time Regulations (working hours, breaks, rest periods, night shifts) can improve a union's bargaining position - never mind that this may be at workers' expense!

Over the past five years, there has been an endless trail of company deals made by the union machineries in which they have signed away what little control workers had over their own working time. All sorts of devices are used, such as annualised hours, as provided for by the Working Time Regulations, or "banked" hours, which replace the old overtime worked for a premium or for time in lieu, with overtime worked at flat rate and at a company's whim. True, such deals started to appear shortly before the introduction of the Regulations. But it was the enactment of this law that really gave these deals a real impetus, with the enthusiastic assistance of union machineries which were overjoyed to be called in for a round of negotiations!

Against this background, it is no wonder that only one-third of the working population even knows that there is a statutory 48-hour limit to the working week - five years after its introduction - as the TUC complains bitterly in its publications! Isn't it the task of trade unions to explain to workers about the laws that affect them and, above all, how to fight them? But union bureaucrats are much more interested in discussing with company managers about the most effective and profitable way to manage their companies!

The answer for workers, of course, cannot be to insist that the bosses should respect the 48-hour working week. After all, it takes real contempt for working people - the kind that Blair shows all too well - to dare present a 48-hour week as progress! It is over a century since the working class movement adopted the 8-hour day as its objective in Britain! Besides the so-called rights contained in this law are often less favourable than existing rights in many workplaces already.

The issue, rather, is to ensure that this law is not used as a Trojan horse by the bosses to launch a renewed offensive against the working class. And this, in turn, depends not on HSE inspectors or employment tribunals, nor on union officials getting a "good" deal, but only on how much the bosses fear workers' reactions, and therefore how much workers allow them to get away with.