Essay: Working Time, Sex and Nationality Discrimination

The Working Time Directive has proven to be one of the most contentious areas of EC Law to have been introduced into Britain. Directive 93/104 specifies the number of hours employees have to work as a maximum, together with rest periods and specified times for night shifts. For example, Article 3 allows that workers must take a minimum of 11 consecutive hours’ rest in any 24-hour period [Foster, pp.369-376 REF1].

The purpose of the Working Time directive is to ensure that workers are protected against adverse effects on their health and safety. In relation to this, consideration was given to the Community Charter of the Fundamental Social Rights of Workers, which was specifically referred to in the Directive. However, its provisions did not extend to every worker until recently.

When the Directive was proposed, the UK opted out of introducing it, as they saw it as a way of ‘imposing Social Chapter-style obligations on the UK by the back door ‘. Consequently, they approached the ECJ to have the Directive annulled (UK v Council (case C-84/94) [1996] ECR I-5757 [Manual 4, p116 REF2].

When the vote was made to adopt Directive 93/104 it was done under the pretext of Article 118a. This article relates to the promotion of improvements in the standards of health and safety of workers in the EU, and matters arising under it can be adopted by a majority vote, against the will of the UK government. The challenges bought about by the UK government were that the Directive should not have been bought about under Article 118a, and that working hours did not play an important part in health and safety. The UK also argued that the making of the Directive offended the principle of subsidiarity, and finally that Sunday should not be declared a specific day for rest. All of the UK government’s pleadings were overturned apart from Sunday being a specific day of rest [Manual 4, p117 REF2].

The UK did eventually implement the Working Time Directive under the Labour Government (a pro European party) into its own law system in 1998 via the Working Times Regulations 1998 (SI 1998 No. 1883). This was not however met favourably and continues to meet opposition. Many businesses in the UK see the Working Time Directive as a way of imposing inflexible provisions that would cost (especially small employers) business money and damage the economy [Manual 4, p122 REF2]. Indeed, the Institute of Directors (IoD) claims that the expansion of the Directive to include thousands of additional UK workers will “hurt the competitiveness of British firms” [REF3]. The same institute argue in addition against the cost of administering the scheme although this argument seems hard to justify – BECTU on the other hand are pro extra administration (in particular the recording of hours where workers ‘opt out’ and do overtime, if it means protection for them) [REF4].

Certain workers were excluded from the Directive including the transport sector, doctors in training and off-shore workers. According to the European commission, around 5.6 million people (or 4 % of total employment in the EU) work in these sectors, mostly in the road transport industry [REF5]. This provision has been changed by Directive 2000/32 and SI 2003/1684 Working Time (Amendment) Regulations 2003 but certain types of workers will still be excluded, and this change of policies brings uncertainty and inconsistency.

A further argument made against the Directive is that it contains loopholes, mainly contained at Article 17 and 18 – for example, it allows workers to extend their 48-hour week to anything up to 72 hours by working, effectively, ‘voluntary overtime’. This clearly does not safeguard workers from employers putting unwarranted, excessive pressure on them to agree to longer hours. Arguably, this is also a plus point – the opt out provisions allow workers flexibility to do overtime if they wish, and make allowances for industries where overtime is an essential characteristic of the job (e.g. t.v, movies) [REF4].

The UK’s thinking behind the initial rejection of the Directive and such policies has been that the “unfettered operation of the free market” will guarantee prosperity and employment [Weatherill, p616 REF6 ). However, as the majority of trade is to be with countries within the EU, it is no good the UK trying to make its own policy – to have an effective internal market in which high employment and prosperity is promoted, there needs to be a single economic, and social, policy.

Before the adoption of the Working Time Directive the UK government was effectively hindering the free movement of workers from other member States where the employees enjoyed the benefit of the Directive. If all of the laws of the member states were harmonised, then it would surely encourage the movement of workers from one member state to another. If they felt that moving from one country to another would limit their rights in the workplace they would be less likely to do so [Manual 4, p124 REF2].

The none implementation of the Working Time Directive by the UK government gave the UK economy an unfair advantage over that of other member States which had adopted the Directive. If allowed to continue, it would have given UK employers the ability to determine the length of hours worked, possibly more than the other member States, and benefit from this additional productivity [Manual 4, p138 REF2]. But as stated above, if this extra security was not available to the workforce then migrant workers would not be attracted, and indeed native workers may be enticed to work in member States implementing the beneficial directive. Continued none implementation could have also resulted in a ‘price war’ of cheap labour, which is not beneficial to workers.

The advent of the Working Time Directive and the opposition to it, demonstrates that the influence of the EC upon member States is not always welcome, particularly in social areas. For example, the Social Charter produced in 1989 was opposed by many countries although they were ‘happy to let the British take most of the flak’ [Weatherill, p616 REF6] The UK in particular has been strongly opposed to legislating in areas of social policy, and the Working Time Directive arguably falls at least partly under this heading as it is for the good and welfare of the peoples.

The UK argue that the Directive is therefore against the principle of subsidiarity – that is, in accordance with Article 5 of the Maastrict Treaty, the Community will not take action in areas which do not fall within its exclusive competence, except where the objectives of such proposed action cannot be achieved by member states [Weatherill, p603 REF6]. But as discussed above, in order to promote a single internal market place, it seems mandatory that a single economic and social policy are agreed. This is in line with the purpose of the EC spelled out in Article 2 EC, economic and social cohesion, and solidarity among member states.

In conclusion, the Working Time Directive purports to safeguard and monitor working hours and offer an increased level of protection in the workplace. Despite the UK’s representations, it clearly touches on matters of both health & safety, and social policy, but, in keeping with the goal of a single internal market, this is arguably justifiable and necessary to achieve community goals. Fears of economic crisis have proved unfounded and small businesses do not appear to be suffering. The overall economy of the UK is, in fact, currently one of the strongest in Europe. The changes in legislation to include and exclude certain sectors have caused uncertainty but, this is more of a matter in implementation rather than a negative in relation to the Directive.

EC law seeking to regulate working time is just part of the continued expansion and growth of a single economic entity, which the UK can choose to be part of, or not.

References

Reference 1 – Foster, N Blackstone’s EC Legislation (2000 11th Edition)
Reference 2 – Units 25, 26 and 27 Longshaw, A & Hughes, M Understanding Law, Manual 1 (2003 6th Edition)
Reference 3 – http://www.iod.co.uk/
Reference 4 – http://www.bectu.org.uk/
Reference 5 – http://www.cec.org.uk
Reference 6 – Weatherill, S. Cases & Materials on EC Law (2002 5th Edition)

Source: Essay UK - http://lecloschateldon.com/essays/law/essay-working-time-sex-and-nationality-discrimination/


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