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Zero-hour contract

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A zero-hour contract is a type of contract between an employer and a worker, where the employer is not obliged to provide any minimum working hours, while the worker is not obliged to accept any work offered.[1] The employee may sign an agreement to be available for work as and when required, so that no particular number of hours or times of work are specified.[2] Depending on jurisdiction and conditions of employment, a zero-hour contract may differ from casual work. They are often used in agriculture, hotels and catering, education, and healthcare sectors.

While the term 'zero-hour contract' is primarily used in the United Kingdom, where around 3% of the workforce are on zero-hour contracts, casual and part-time workers are employed under similar terms in many countries.

In the UK, zero-hour contracts are controversial. British business leaders have supported them, stating that they provide a flexible labour market. They may be ideal for some people such as retirees and students who want occasional earnings and are able to be entirely flexible about when they work.[3] It has been reported that 60% of people on zero-hour contracts are happy with the hours they work.[4] Trade union groups and others have raised concerns about the possibility of exploitation and the use of such contracts by management as a tool to reward or reprimand employees for any reason, or for no reason. They also raise concerns about how workers can adequately assert their employment rights or maintain decent employment relations.[5]

United Kingdom

In the United Kingdom, under the National Minimum Wage Act 1998, workers operating under a zero-hour contract on stand-by time, on-call time, and downtime must be paid the national minimum wage for hours worked. Prior to the introduction of the Working Time Regulations 1998 and the National Minimum Wage Regulations 1999 zero-hour contracts were sometimes used to "clock-off" staff during quiet periods while retaining them on site so they could be returned to paid work should the need arise. The National Minimum Wage Regulations now require that employers pay the national minimum wage for the time workers are required to be at the workplace even if there is no "work" to do.[6][7] In the past, some employees working on a zero-hour contract have [8] been told that they are required to obtain permission of their employer before accepting other work[9] but this practise has now been banned under UK legislation enacted in May 2015.[10] In Autoclenz Ltd v Belcher [2011] UKSC 41, the UK Supreme Court delivered a groundbreaking judgment on workers who were on a zero hour contract. Lord Clarke held, at paragraph 35, that in employment relations which are characterised by inequality of bargaining power, the written terms of a contract may not in truth represent what was the contract in law. In 2013, the reasoning in Autoclenz was applied by Supperstone J in the Employment Appeal Tribunal[11] to hold that a security guard who was given a zero hours contract was entitled to a stable working pattern: the contract's written terms were invalid. Together, this indicates that all zero hours contracts may be unlawful, and workers may be entitled to sue their employers for an unlawful deduction of wages if they are willing and able to work.[12]

In 2011, zero-hours contracts were prevalent in many parts of the UK economy:[13]

  • in the hotels and restaurants sector, 19% of all workplaces (up from 4% in 2004)
  • in the health sector, 13% (up from 7%)
  • in the education sector, 10% (up from 1%)

For domiciliary care workers, the incidence was reported to be as high as 55.7% of all workers during the period 2008–12.[14]

As of September 2016, the Office for National Statistics estimated that there are over 900,000 workers on zero-hours contracts (2.9% of the employed workforce),[15] up from 747,000 the previous year, with over 1.8m such contracts (as some people may have more than one contract),[16] with a further 1.3m where no hours were worked.[17] Some commentators have observed that the number of such contracts may be under-reported, as many people may be confusing them with casual employment,[18] and may not be reporting them as temporary.[19] The Chartered Institute of Personnel and Development (CIPD), based on a poll of 1,000 workers, reported in August 2013 that as many as 1 million workers in the United Kingdom, 3–4% of the workforce, work under the terms of a zero-hour contract.[20] Based on a survey of 5,000 of its members Unite, Britain's largest labour union, estimates that as many as 5.5 million workers are subject to zero-hour contracts, 22% of those employed privately. The survey, conducted by Mass 1, showed that zero-hour contracts were more prevalent in northwest England, among young workers, and in agricultural work. Often workers said that holiday pay was denied (which is illegal)[20] and in most cases sick pay. The National Farmers Union, which represents farmers, supports zero-hour contracts as offering needed flexibility for tasks such as harvesting.[21]

According to the CIPD research about 38% of those employed under zero-hours contracts considered themselves to be employed full-time, working 30 hours or more a week. While 66% of those on zero-hours contracts were happy with the hours they worked,[16] 16% felt they did not have an opportunity to work enough hours. About 17% of private employers used zero-hours contracts while they were used by 34% of non-profits organisations and 24% of public employers. Zero-hours contracts were frequently used in hotels, catering and leisure (48%), education (35%) and healthcare (27%).[20]

Under UK law a distinction is drawn between a mere "worker" and an "employee," an employee having more legal rights than a worker.[22] Whether a person working under a zero-hour contract is an employee or a worker can be uncertain; however, even in cases where the plain text of the zero-hour contract designates the person as a "worker" courts have inferred an employment relationship based on the mutuality of obligation between employer and employee.

Thus, when deciding whether a zero-hours contract constitutes a contract of employment, conferring employee status, the wording of the contract will not be determinative of whether there is, in practice, a mutuality of obligation. The tribunal will look closely at the reality of the agreement. If the reality is that there is a pattern of regular work which is regularly accepted, the tribunal may deem the contract to be one of employment.[23]

In March 2015, the Small Business, Enterprise and Employment Act 2015[24] received Royal Assent. On a date to be appointed, s. 153 of the Act will amend the Employment Rights Act 1996, so that exclusivity terms in zero hours contracts will no longer be enforceable, and regulations may specify other circumstances under which employers may not restrict what other work zero hours workers can do.

Social Security

Zero-hours contracts provide basic social security benefits;

  • Maternity/Paternity pay
  • Holiday
  • Health insurance

If a zero-hour contract employee earns less than £5,772 a year they will not receive any credits for the state pension.

Employers in the United Kingdom

Zero-hour contracts were being used in an increasing number of jobs after the global financial crisis in the private, non-profit, and public sectors in the United Kingdom:

  • Sports Direct, a retailer, has 90% of its workers on zero-hour contracts[25]
  • In August 2013, The Guardian reported that J D Wetherspoon, one of the UK's largest pub chains, has 24,000 staff, or 80% of its workforce, on contracts with no guarantee of work each week.[26]
  • 90% of McDonald's workforce in the UK – 82,000 staff members – are employed on a zero-hour contract. According to a McDonald's spokesperson all work is scheduled in advance with no employees being "on call" and meets the needs of workers who desire or need a flexible schedule.[27] In 2016, the store trialled offering the chance to move off zero-hour contracts but over 80% of staff chose to remain on them.[28]
  • Hobbycraft use zero-hour contracts for the majority of their distribution staff in Burton-upon-Trent[citation needed]
  • A major franchise of Subway also uses the contracts, which state, "The company has no duty to provide you with work. Your hours of work are not predetermined and will be notified to you on a weekly basis as soon as is reasonably practicable in advance by your store manager. The company has the right to require you to work varied or extended hours from time to time." Subway workers are also required, as a condition of employment, to waive their rights to limit their workweek to 48 hours.[25]
  • Burger King franchisees and Domino's Pizza operations in the UK extensively use zero-hour contracts.[29]
  • The Spirit Pub Company has 16,000 staff on zero-hour contracts.[30]
  • Boots UK has 4,000.[30]
  • Buckingham Palace, which employs 350 seasonal summer workers, also uses them.[31][20]
  • The National Trust, a nonprofit organisation which manages extensive historic sites and nature preserves in England, Wales, and Northern Ireland, which must deal with variable weather, uses zero-hour contracts but at the same benefits and pay as permanent employees.[20] The Tate Galleries also use zero-hour contracts.[9]
  • All non-management staff at Curzon and Everyman cinema chains.[32]
  • Cineworld, a leading cinema chain, uses zero-hour contracts for 3,600 people, about 80% of its workforce, and Stephen Wiener, the founder, stated in August 2013 that he will continue using them.[33]
  • Hertz Car Rental UK employs workers on a zero-hour contract yearly rather than give guaranteed contracts to save on costs through the winter months. Zero-hour staff are expected to do any evening or weekend work as the full time staff do not want to work these hours,
  • Yo! Sushi employs all non-management staff on zero hour contracts, despite advertising falsely as full time.[34]
  • CeX uses zero hour contracts for staff members.[citation needed]
  • Wasabi (restaurant) uses zero hour contracts for staff members.[citation needed]

The Workplace Employment Relations Survey conducted by the government of the UK in 2004 and 2011 shows that the proportion of workplaces that have some employees on zero-hours contracts has increased from 4% in 2004 to 8% in 2011. The survey found that larger companies are more likely to use zero-hours contracts. 23% of workplaces that have 100 or more employees used zero-hours contracts in 2011, compared to 11% of those with 50–99 employees and 6% of those with fewer than 50 employees.[23]

Criticism

A Channel 4 documentary broadcast on 1 August 2013 employed secret cameras in Amazon UK's Rugeley warehouse to document worker abuses and claimed that Amazon used "controversial" zero-hour contracts as a tool to reprimand staff, and were "tagging" employees with GPS and subjecting them to harsh working conditions.[35]

Workers subject to zero-hour contracts may be subject to exploitation as they may be denied work at any time for any reason, including declining to respond to a demand to work. A refusal to work in any one instance for any reason can result in a prolonged period of lack of work.[36] In 2014, millions of workers were still trapped in low-paid, highly insecure jobs, where mistreatment is the norm and where there is limited prospect of escape, said the Trade Union Congress.[citation needed] Due to the uncertainty of the workers' schedules zero-hour contracts present problems for workers with children due to the difficulty of arranging child care.[6] The rapidly growing use of zero-hour contracts was the subject of a series of articles in the late July 2013 by The Guardian and as of 2013 was of concern to Parliament.[6] Vince Cable, business secretary of the government, is considering closer regulation of the contracts but has ruled out a ban.[37] Labour MPs Alison McGovern and Andy Sawford have campaigned to ban or better regulate the practice.[25]

The Institute of Directors, a chartered organisation of British business leaders, has defended the contracts as providing a flexible labour market, citing the lack of flexibility in Italy and Spain.[25] Jacob Rees-Mogg MP has also argued that they benefit employees including students by providing flexibility and could provide a route into more permanent employment.[38] The Entrepreneur wrote "The tried and tested 'Hollywood model' is spreading to other industries. While zero-hours contracts are particularly common in fast food and retail, other sectors where workflow is unpredictable, such as the creative industries (advertising, PR, film and design), have long employed 'per project contract' freelance talent to deal with the ups and downs, and the specific skill requirements of individual projects. Think of a Hollywood film. The script writer, director, actors, extras, make-up artists, in fact everyone, is contracted on a temporary basis. When the project is completed, each has to find the next contract. That's a trend that's spreading to other, less 'arty' areas of work." [39]

In 2016, several UK chains which had widely been using zero-hour contracts have announced they will phase these out during 2017. Those include Sports Direct and cinema chains Curzon and Everyman.[40] However, Cineworld, another leading cinema chain which also owns Picturehouse, has come under scrutiny for continuing to use the contract format, with the living wage protests at London's Ritzy Cinema especially prominent.[41]

Australia

Main article: Casual employment (Australia)

Canada

Casual labour contracts in Canada can have "no guaranteed minimum hours,"[42] place "no obligation on the employer to provide work", and pay can be "pro rated in line with hours worked."[43]

Ireland

On 2 April 2015, members of the Mandate Trade Union staged a one-day dispute at 109 branches of Dunnes Stores. The dispute concerned low-hour contracts (typically 15 hours per week), income and employment security, and the continued failure of Dunnes Stores to recognise or engage with the Mandate Trade Union, contrary to the recommendations of the impartial Labour Court.[44]

In Ireland these types of contracts are in fact low-hour contracts as they guarantee employees a minimum amount of hours pay per week (20% of contracted availability or 15 hours per week, whichever is lower).[45]

New Zealand

In 2015, the television show Campbell Live revealed that large corporate hospitality companies such as Burger King and McDonalds, KFC, Starbucks, Pizza Hut, Carl's Jr. (all under Restaurant Brands), Sky City and Hoyts, all use zero hour contracts to reduce costs.[better source needed][46] On 9 April, Restaurant Brands agreed to do away with zero hours contracts.[47]

A bill outlawing zero hour contracts was unanimously passed on 10 March 2016 and went into effect on 1 April.[48]

See also

Notes

  1. ^ "Zero Hours Contracts | Acas advice and guidance". Acas. 26 May 2015. Retrieved 6 November 2015.
  2. ^ "Zero hours contracts hit 200,000". Recruiter. 3 April 2013. Retrieved 15 July 2013.
  3. ^ "The rise of the "zero-hours" contract". Acas. Retrieved 6 November 2015.
  4. ^ David Smith (6 September 2015). "Economic Outlook: Turn sharp left for the 1970s and Corbynomics". The Sunday Times. Retrieved 6 November 2015.
  5. ^ Matthew Pennycook (25 June 2013). "The forward march of zero-hours contracts must be halted". New Statesman. Retrieved 15 July 2013.
  6. ^ a b c Douglas Pyper; Daniel Harari (5 August 2013). "Zero hours contracts" (PDF). House of Commons Library. Retrieved 5 August 2013.
  7. ^ Pennycook et al. 2013, p. 6.
  8. ^ "Zero Hours Contract Template". Templateagreements.co.uk. Retrieved 6 November 2015.
  9. ^ a b Phillip Inman (30 July 2013). "Zero-hours contracts: what are they?: An employee can end up with no pay at the end of the week because the employer does not need to guarantee work". The Guardian. Retrieved 5 August 2013.
  10. ^ "Zero hours contracts". www.acasd.org.uk. Acas. Retrieved 11 March 2016.
  11. ^ "Borrer v Cardinal Security Ltd (Unfair Dismissal : Constructive dismissal) [2013] UKEAT 0416_12_1607 (16 July 2013)". Bailii.org. Retrieved 6 November 2015.
  12. ^ "Are Zero Hours Contracts Lawful? by Ewan McGaughey :: SSRN". Papers.ssrn.com. doi:10.2139/ssrn.2531913. Retrieved 6 November 2015.
  13. ^ Piper & Harari 2013, pp. 4–5.
  14. ^ Bessa et al. 2013, p. 22.
  15. ^ https://www.theguardian.com/uk-news/2016/sep/08/uk-workers-zero-hours-contracts-rise-tuc
  16. ^ a b "Zeroing in on zero hours contracts facts". Fullfact.org. Retrieved 6 November 2015.
  17. ^ Rowena Mason (5 May 2014). "Jobseekers being forced into zero-hours roles". Guardian newspapers. Retrieved 5 May 2014.
  18. ^ Ian Brinkley (17 August 2012). ""Zero hours" contracts and the flexible labour market". The Work Foundation. Retrieved 1 May 2013.
  19. ^ Ian Brinkley (13 June 2013). "' Zero hours contracts – nasty, brutish and unfair?". The Work Foundation. Retrieved 25 June 2013.
  20. ^ a b c d e Simon Goodley; Phillip Inman (5 August 2013). "Zero-hours contracts cover more than 1m UK workers: Poll of more than 1,000 employers reveals controversial contract used far more widely in the UK than government data suggests". The Guardian. Retrieved 5 August 2013.
  21. ^ Sarah Butler (8 September 2013). "Zero-hours contracts: 5.5m Britons "are on deals offering little guaranteed work": Unite survey finds 22% of workers employed by private firms are on contracts promising less than three hours a week". The Observer, The Guardian. Retrieved 8 September 2013. The government's refusal to address the growing scandal of zero-hours contracts is creating a sub-class of insecure and low-paid employment.
  22. ^ "Employee". Guide Employment status. UK.Gov. Retrieved 8 August 2013.
  23. ^ a b "The 2011 Workplace Employment Relations Study (WERS)". United Kingdom. 23 January 2013. Retrieved 5 August 2013.
  24. ^ "Small Business, Enterprise and Employment Act 2015", legislation.gov.uk, The National Archives, 2015 c. 26
  25. ^ a b c d Simon Neville (29 July 2013). "Pressure mounts on Sports Direct over zero-hours contracts: Unite demands meeting with company founder Mike Ashley over contracts that do not provide workers with set hours". The Guardian. Retrieved 5 August 2013.
  26. ^ Neville, Simon (1 August 2013). "Zero-hours contract figures were wrong, ONS admits". The Guardian. Retrieved 26 June 2014.
  27. ^ Simon Neville (5 August 2013). "McDonald's ties nine out of 10 workers to zero-hours contracts: Britain's biggest food chain has 83,000 staff on controversial contract as employers body claims economy needs flexibility". The Guardian. Retrieved 6 August 2013.
  28. ^ "McDonald's offer staff the chance to get off zero-hours contracts".
  29. ^ Simon Neville (6 August 2013). "Burger King and Domino's Pizza also using zero-hours contracts: British Retail Consortium calls on employers to act responsibly amid revelations about fast food chain workers". The Guardian. Retrieved 8 August 2013.
  30. ^ a b Simon Neville (5 August 2013). "McDonald's ties nine out of 10 workers to zero-hours contracts". The Guardian. Retrieved 6 August 2013.
  31. ^ Simon Neville; Matthew Taylor; Phillip Inman (30 July 2013). "Buckingham Palace uses zero-hours contracts for summer staff: The 350 part-time workers deployed during summer opening of the royal family's London residence have no guaranteed work". The Guardian. Retrieved 5 August 2013.
  32. ^ Simon Neville (9 August 2013). "Curzon and Everyman cinema staff on zero-hours contracts". The Guardian. Retrieved 9 August 2013.
  33. ^ Neville, Simon (15 August 2013). "Cineworld boss pledges to continue with zero-hours contracts". The Guardian. Retrieved 26 June 2014.
  34. ^ Steve Hawkes (2 April 2015). "Mili-bad for business". The Sun. Retrieved 2 April 2015.
  35. ^ "Anger at Amazon working conditions – Channel 4 News". Channel 4. 1 August 2013. Retrieved 6 November 2015.
  36. ^ Larry Elliott (4 August 2013). "Zero-hours contract workers – the new reserve army of labour?: Karl Marx would see zero-hour contracts for what they are: rank exploitation – the type of working conditions that spawned trade unions in the first place" (Economics Blog). The Guardian. Retrieved 5 August 2013.
  37. ^ Patrick Wintour (5 August 2013). "Zero-hours contracts could be subject to new legislation, says Vince Cable: Business secretary says employer exclusivity is main issue for review, as figures show one million are on zero-hours deals". The Guardian. Retrieved 6 August 2013.
  38. ^ Jacob Rees-Mogg (6 August 2013). "Zero-hours contracts: why do Lefties always think they know best?". The Daily Telegraph. London. Retrieved 16 August 2013.
  39. ^ "5 Reasons Why Zero-Hour Contracts Are the Future of Work".
  40. ^ Sarah Butler; Hilary Osborne (14 September 2016). "Everyman cinema chain is next to drop zero-hours contracts". The Guardian.
  41. ^ Sarah Butler; Damien Gayle (7 October 2016). "Ritzy cinema living wage strike disrupts BFI London film festival". The Guardian.
  42. ^ "The 15-hour workweek: Canada's part-time problem". The Globe and Mail. Retrieved 6 November 2015.
  43. ^ [1] Archived 16 August 2014 at the Wayback Machine
  44. ^ "Dunnes Stores staff stage strike in low-hour contract row". Raidió Teilifís Éireann. 2 April 2015. Retrieved 1 May 2015.
  45. ^ http://www.citizensinformation.ie/en/employment/employment_rights_and_conditions/contracts_of_employment/contracts_without_specific_working_hours_zero_hours_contracts.html
  46. ^ "Kiwis tied to zero hour contracts speak out | TVShows". 3 News. Retrieved 6 November 2015.
  47. ^ "Restaurant Brands says no to zero hour contracts – Business – NZ Herald News". The New Zealand Herald. Retrieved 6 November 2015.
  48. ^ "Zero hour contracts officially history - National - NZ Herald News". The New Zealand Herald. Retrieved 12 March 2016.

References

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