Contractor legislation may change: Advocate General adds support
BECTU, the entertainment union, has received a major boost to its groundbreaking legal proceedings against the Government's policy on paid annual leave for short-term contractors. If they are successful, the case could have wider implications for other Government legislation currently being challenged in the European Court.
The Broadcasting Entertainment Cinematograph and Theatre Union's challenge represents legal history as the first individual union to ever challenge Government policy in the European Court as "unlawful". If they succeed in convincing the Court that Labour Ministers were wrong to exclude freelancers and short-term contractors from entitlements outlined in the European Working Time Directive, millions of British short-term contractors could be given the right to annual leave.
The breakthrough came as the Advocate General added his support to the case. An Advocate General's opinion is an opinion only and not a decision or ruling. It is a recommendation to the judges of the court. While the judges are not obliged to follow that advice it is rare that they do not. If successful, the Government will be made to delete those sections of the Working Time Regulations that require an employee to have 13 weeks of employment with the same employer in order to be entitled to paid leave.
Stephen Cavalier, Head of Employment Rights at Thompsons Solicitors who are acting for BECTU, said that the Government would be wrong to wait for the ECJ ruling: "The Advocate General has said the right to paid leave is a fundamental human right. The Government should now honour its commitment to human rights and the rights of people at work and change the law now, rather than wait to be forced."
He continued, "The way in which our Government implemented the Working Time directive in respect of holiday entitlement was never justified. By giving freelance workers and those on short-term contracts fewer rights than their full-time colleagues or those on long-term contracts the Government turned them into a second class of employee and gave employers a green light to exploit the use of these kind of contracts in order to avoid their obligations."
Speaking of the breakthrough, BECTU General Secretary Roger Bolton said: "The Prime Minister has on many occasions spoken about the flexibility of the UK labour force. Our freelance members are the ultimate flexible workforce. It is unfair and unjust that they should be punished for their flexibility."
The PCG could be similarly challenging Government legislation in the European Court, arguing that it treats contractors unfairly and is in breach of their human rights. They are coming from the opposite end of the spectrum however, rather than argue that contractors are "employees" as IR35 classifies them, they are arguing for the right to be in business. The PCG has so far been granted a Judicial Review to be held on March 13, 2001.
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Richard Powell, UKTECH