'The scrapping of record keeping means the regulations on long working hours effectively become unenforceable.'

Tony Burke is the President of the Confederation of Shipbuilding and Engineering Unions and Co- Chair of the Campaign For Trade Union Freedom.

The UK Secretary of State for Business and Trade, Kemi Badenoch, is facing damning criticism by hard line Brexiteers after announcing (in a ministerial statement) that the wholesale ‘sunsetting’ of EU legislation proposed by the Retained EU Law (Revocation and Reform) Bill is to be abandoned.

This follows pressure from trade unions, the civil service and the legal profession after the government admitted its promised ’bonfire’ of EU legislation was illusionary and could not be pushed through parliament in its originally planned time frame.

Equally there would be (and still could be) a major push back from the EU, not only in regard to relations with the EU but also in regard to the Brexit deal which provides for the EU to challenge legislation that would contravene the ‘level playing field’ clauses in the Brexit deal. A non-regression clause in the Brexit deal makes clear that neither the EU nor the UK may ‘weaken or reduce, in a manner affecting trade or investment between the Parties, its labour and social levels of protection’.    

Yet in a policy paper ‘Smarter Regulation To Grow The Economy’, the government announced it was their intention to “cut red tape for businesses and save £1 billion per year” whilst “safeguarding the rights of workers”. In defiance of obligations in the Brexit deal, the government’s aim is specifically to ‘create a more competitive and productive economy’.

For trade unions, the policy paper proposes changes to two major pieces of EU-derived law.

The EU derived Working Time Regulations have always been in the sights of the Tories as they restrict the ability of employers to force workers into working long hours, protect the right to breaks during working hours, rest breaks between shifts and define holiday entitlement and holiday pay.

The policy paper says that the government will consult on removing the retained EU law that requires businesses to keep records of daily working time for almost all workers (enacted in the UK by regulation 9 of the Working Time Regulations).

The government claims this will save businesses £1 billion per year.

Just how businesses will be able to ensure compliance with the regulations without keeping such records remains a mystery. The government says this will form part of the consultation.

As a result of a leading decision of the Court of Justice of the EU employers must keep records of their employees working hours to stop workers being forced to work excessive hours.

The removal of record keeping and restrictions on night work are especially worrying as working excessive periods at night has been linked with an increased risk of developing cancer and diabetes.

At the time of the transposition of the Working Time Regulations into UK law, many workers signed an individual opt out after being pressurised by their bosses, with many warning their staff if they failed to sign up, they could face losing their jobs, company closures and not being allowed to work any additional hours.

Some unions secured collective agreements on working time which outlawed systematic and excessive overtime striking agreements which allowed for workers to work 48 hours on average of an agreed period of time (between 13 weeks in some cases upto 12 months).

Many employers recognised that there was little benefit running a business where more than 48 hours on average over an agreed period of time was needed and saw the benefits of a sensible working hours agreement.

It is highly questionable that businesses will ‘save £1 billion a year’ from scrapping record keeping.

Most companies (no matter how small) have computerised payroll systems which automatically keep records and they have had these systems running for years. The days of handwritten record keeping are long gone.

The scrapping of record keeping means the regulations on long working hours effectively become unenforceable. Bad bosses  will be able to get away with forced and excessive working hours and exploitation.

Another proposal in the consultation paper is ‘rolled-up holiday pay’, where workers receive an uplift in pay instead of annual holiday time which allows holidays for casual and other precarious workers – again denying these workers paid time off work and many face permanently being on call.

The policy paper also confirms that the government will consult on removing the requirement to elect ‘employee representatives’ for the purpose of TUPE consultation for businesses with fewer than 50 employees and for transfers which affect fewer than 10 employees. (It is not clear whether both of these requirements need to be met or whether one will be sufficient).

Instead, businesses will be allowed to consult directly (and individually) with the affected employees.  Unions know only too well how workers in unorganised companies will be coerced into giving up their employment, face ‘take it or leave it’ or potentially unfair selection for  edundancy in one to one discussions with their boss.

Workers in many small companies are women and young people in supply chain companies, retail business and start ups, where companies are liable to face acquisitions, takeovers and mergers. In addition, the removal of the duty to consult is a further licence to fire and rehire.

Furthermore, the proposals are unclear as to what would happen to the many small companies with less than 50 employees who are unionised with established collective bargaining agreements.

The policy paper is not about helping business or cutting red tape. It is the thin end of the wedge for all EU derived law, allowing the government to introduce a stream of un-amendable regulations on almost every aspect of employment and health and safety law.

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