The RFU wishes to set out its clear position in relation to the Opt-Out from the working time directive. The Opt-Out is often referred to as a one off arrangement which exists in the UK alone.

However this is not the case; Fifteen Member States currently exercise the opt-out: Source Europa website http://www.europarl.europa.eu/news/expert/infopress_page/048-44550-350-12-51-908-20081215IPR44549-15-12-2008-2008-true/default_en.htm

In light of the current proposals by the European Parliament’s Employment and Social Affairs Committee to scrap the Opt Out from the Working Time Directive (allowing UK workers to work for more than 48 hours per week) many commentators have considered the impact of this for the RDS.

There is huge recognition of this very real threat to the continuation of fire and emergency response as provided by RDS and flexi duty personnel, indeed this view is supported by a cross party consensus of UK politicians, including the majority of UK MEPs, the Department for Business Enterprise and Regulatory Reform (BERR) CFOA, and the LGA, it has been recently debated in Westminster and similar concern and support for retention of the Opt-Out has been voiced in the devolved administrations.

A view held amongst some such commentators appears to be that the Fire Service would be exempt from the provisions of the WTD and the 48 hour week due to the fact that they are an emergency service covered by the civil protection service exclusion under Reg 18(2) (a) of the Working Time Regulations 1998.

What is clear from Regulation 18(2)(a) is that the Fire Service and other civil protection services are not themselves exempt from the 48 hour week, rather that the exclusion only applies where “characteristics peculiar to certain specific services………..or to certain specific activities in the civil protection services, inevitably conflict with the provisions of the Regulations”.

This exclusion mirrors Article 2(2) of the EC Health and Safety Directive (No 89/391) on which the WTD is based.

In the case of Pfeiffer and ors v Deutsches Rotes Kreuz, Kreisverband eV 2005 IRLR 137 the scope of this exclusion was considered in relation to German Red Cross emergency ambulance employees. The ECJ stated that the exclusion should be interpreted restrictively.

The ECJ’s view was that the exclusion was adopted so that in the event of an unforeseeable catastrophe of exceptional gravity and scale, essential services could continue to operate to ensure the protection of public health, safety and order.

The key point is that such a catastrophe cannot be planned for and falls squarely outside of normal emergency service activities which are capable of being planned for in advance.

To reinforce the point that “normal” emergency service activities are not within the exclusion, the ECJ went on to point out that if that argument was correct, then there would be no need for the exception allowed for in Reg 21 which allows workers to work through rest breaks, or what would otherwise be a rest period, where the worker’s activities involve the need for continuity of service.

Reg 21(c) specifically applies, amongst others, to the civil protection services, including the Fire Service. If Reg 18(2) (a) exempted the Fire Service as suggested then this would be totally unnecessary.

It is therefore dangerous and misleading to misinterpret the extent to which Reg 18(2) (a) can be relied upon to claim that retained firefighters will still be able to undertake RDS activities which result in them exceeding the maximum working week if the Opt Out is removed.

Based upon the above, the threat to continued cover as provided by retained firefighters remains unless the Opt–Out is protected.

For the avoidance of doubt, should this campaign be lost and the Opt-Out be removed, Fire and Rescue Services who employ RDS personnel as a major part of their emergency cover would have immense difficulties in replacing this cover across the board and at huge additional cost to the taxpayer.

John Barton
General Secretary

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