TransOcean: New Contract

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Altered terms and conditions have been issued and employees are being strong armed into signing. OILC' s lawyer considers the implications below. The company has moved away from its previous position that the working time regulations do not apply offshore. Now it concedes that they do. Are we moving in the direction of at last getting our 4-weeks paid holidays separate from the field break? Time and OILC-RMT's ongoing legal battle will tell.

Under the terms of the WTR “ unless an employer has first obtained the workers’ agreement in writing to perform the work” a worker’s working time, including overtime, shall not exceed an average of 48 hours in any reference period applicable to him. 

Therefore, the statutory maximum working week shall be no more than (on average) 48 hours. 

Bearing in mind the above Transocean North Sea Limited has issued new contracts to its’ workforce which contain the following clause: “If the employee’s sign these new contracts then they will effectively be giving their employer Transocean their “agreement in writing to perform” work over and above the 48 hour maximum – until such time as they give – no less than 3 months – notice to revoke this agreement".

The WTR derive from a European Directive and the ability to opt-out of the statutory maximum is a continuing matter of controversy in Europe. Many European States do not allow for any opt-out. As the law stands at present however states may still permit opt-outs. However the agreement to opt-out must be given by the individual himself. It cannot be given or his or her behalf through a collective agreement. This was decided in the case of SIMAP [2000] IRLR 845. 

It is arguable that a proper construction of the EU Directive requires the employee to freely consent to opt-out and that this is hardly established if it is has to be given as a pre-condition of obtaining the employment in the first place. However the WTR as drafted do not prohibit the practice of including opt-out clauses in contracts of employment.  It is likely that the clause is drafted in such a way, ie “  the Employee’s consent is freely given” in an attempt to make it difficult thereafter for the employee to argue that his agreement was obtained from him by some form of coercion.

Nevertheless it is difficult to see how consent can be freely given in circumstances where the agreement is contained within a pro forma document issued without any prior discussion and with a request to “sign and return”.

For those who are already employees of Transocean and who do not wish to provide such an agreement they may wish to send back the Contract with a covering letter as follows : 

Please find enclosed my new contract of employment  duly signed as requested. Please note that I do not wish to work beyond the statutory maximum of 48 hours per week provided for in the Working Time Regulations and I understand that it is my statutory right to refuse to give my agreement to do so. 

I understand that any insistence that I provide such an agreement as a condition of my employment would infringe my statutory rights. 

 In these circumstances I have deleted the last paragraph of clause 8 which states : “The Employee agrees that the 48 hour weekly limit under WTR will not apply to the employment with the Company under this contract and the Employee’s consent is freely given, unless the Employee gives 3 months notice in writing to the Company to the contrary.” Please retain this letter with my signed contract of employment.”

Under the terms of section 104 of the Employment Rights Act 1996 any employee who is dismissed shall be regarded as unfairly dismissed if the reason or principal reason is that he has alleged his employer had infringed a relevant statutory right. In the same vein an employee is also protected from detriment on the same grounds. Therefore if Transocean should dismiss or subject any employee to detriment on the grounds that they have failed to agree to such a clause there should be protection under the Legislation.

The matter is not so straightforward for those who are not already employees but are looking to start work as the 1996 Act protections are only available to those who have already a relationship with the employer ( insofar as dismissal is concerned employees are protected, whereas employees and workers are protected against detriments short of dismissal). It may be that Transocean will simply accept a refusal to agree to this pre-condition. If prospective employees are not prepared to take that chance, they may wish to consider entering into the agreement and then once they start work immediately issuing Transocean with the 3 month notice, worded in terms similar to that above. They would then have protection against dismissal and detriment.  

I would be happy to discuss this matter further if any questions arise from this brief note.

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