1. What are the maximum contracted or required hours under the ETI Base Code?

Contracted working hours refer to the number of hours which a worker may be required to work per week by his or her employer. This will normally be fixed at no more than 48 hours per week, unless a lower figure is set by national law or a collective agreement. Where averaging is allowed, there may be some variability on required working hours, with the proviso that the average required hours will not exceed 48 hours per week and the total number of hours actually worked will never exceed 60 hours per week, unless there are exceptional circumstances, it is allowed by national law, covered by a collective agreement and appropriate safety safeguards are in place.

2.  I am a supplier and I have had an audit which has given a non-compliance for paying less than 125% for overtime, but the Base Code says this percentage is ‘recommended’. What is ETI’s position on this?

The ILO Hours of Work (Industry) Convention No. 1 states in Article 6 that “the rate of pay for overtime shall not be less than one and one-quarter times the regular rate”. ETI has recommended that if employers are paying less than 125%, auditors should raise this as an observation to prompt a discussion with the client/customer as there may be valid reasons for paying below this rate (eg the standard rate may be higher than the prevailing industry rate). Customers may then decide how to respond - eg they may choose to pay the supplier more for products so that they can cover the cost of increased overtime premium. We understand that SEDEX has taken the decision to allow premiums under 125% to be raised as a non-compliance to ensure that the issue is not overlooked, as it may be if raised merely as an observation. (NB although SEDEX uses the ETI Base Code, it is a separate organisation that is not connected to ETI).

3. When workers are employed by a labour provider or recruitment agent, who is responsible for their working hours at a particular place of work?

As the employer, the agency is responsible for the overall number of hours worked by an employee they have placed as they will have an overview of the total number of days worked over a given period. For example, if a worker has worked four days at one company, the agency must ensure that the next placement allows for at least one day’s break in seven (or two in 14 if allowed by national law). The agency and the company should ensure that excessive hours are not worked within the day (see Q14, Are there limits to daily working?).

4. Which standard should be applied if the ETI 60 hours limit on weekly working hours is stricter than country law?

The 60 hours per week limit on all hours worked in a week set by the ETI Base Code will be stricter than national law in some cases (for example, national law may not set maximum limits on weekly working hours). In these cases, the 60-hour limit should apply. It should be noted that this limit includes all overtime, which must be voluntary and used in accordance with the Base Code.

The 60-hour limit may only be exceeded if all of the following conditions under 6.5 are met:

• this is allowed by national law;
• this is allowed by a collective agreement freely negotiated with a workers’ organisation representing a significant portion of the workforce;
• appropriate safeguards are taken to protect the workers’ health and safety; and
• the employer can demonstrate that exceptional circumstances apply such as unexpected production peaks, accidents or emergencies.

5. What is considered to be a “significant portion of the workforce”?

This will depend on the circumstances. National law may have specific provisions relating to collective agreements on working hours or bargaining in general. This may include provisions which determine what are the procedural requirements for agreements which provide for derogation from working time rules (for example, Regulation 23 of the Working Time Regulations 1998 which governs working hours in the UK). Where present, these should be followed in determining this issue. If there is no relevant rule, then this provision should be interpreted in light of the fact that it is aimed at ensuring that agreements with organisations representing small numbers of workers do not remove protections from the whole workforce. It should not be used to undermine genuine collective agreements.

6. Can the 60-hour weekly working hour limit be exceeded in seasonal work?

No. Seasonal work is not considered to be an exceptional circumstance, as defined under clause 6.5 of the ETI Base Code. The reason for this is that the work, while being irregular, is entirely predictable and anticipated.

7. Can a worker work more than 60 hours per week by averaging the hours worked over a period of time?

Unlike the contracted 48-hours provision, there is no possibility of averaging hours around the 60-hour limit. The Base Code is very clear, a worker cannot exceed 60 hours in any one week, unless there are exceptional circumstances, it is allowed by national law, covered by a collective agreement and appropriate safety safeguards are in place. This is an absolute weekly, hourly limit.

8. How can the company ensure that overtime is voluntary?

When an employer requires workers to work overtime, the employer should clearly communicate to workers that they are free to refuse and that there will be no negative repercussions if they do. To avoid coercion, the employer should ensure that:

• if transportation is provided, it is available at the end of the normal work day or shift so that workers who choose not to perform overtime can leave the facility;
• the facility doors or gates are unlocked to allow workers to leave freely at the end of their work day;
• if daily production targets are used, they are achievable within the standard working hours so employees do not feel pressured to work overtime in order to meet them;
• overtime requests are not always directed at the same workers;
• the company’s internal policies clearly state that workers are free to refuse overtime;
• workers are given sufficient notice of overtime work so alternative arrangements can be made if workers are not able to perform the work; and
• workers’ agreement to perform overtime work is documented.

9. What does “averaging” mean in the context of UK law?

The UK Working Time Regulations allow the legal maximum working hours limit of 48 hours per week to be exceeded in any one week as long as the average number of hours over 17 weeks (the reference period) does not exceed 48 hours per week.

10. If workers have signed a 48-hour week opt-out agreement in the UK, can any overtime they do be considered voluntary?

Workers over the age of 18 can choose to opt out of the 48-hour limit for a certain period or indefinitely. This agreement must be made voluntarily and in writing by the employee; it can also be cancelled by the employee by providing the employer at least seven days’ notice. However, signing the opt-out clause does not prevent workers from refusing to work for more than 48 hours per week. Any hours worked above the 48-hour per week fixed or, where appropriate, average legal working hours must be voluntary. In addition, the ETI Base Code takes precedent over the opt-out agreement and workers should not work more than 60-hours in any week unless exceptional circumstances apply, it is provided for by national law, safety provisions are in place and it is covered by a collective agreement. Further, a premium must be paid in relation to any overtime.

11. When are part-time workers or workers with flexible hours contracts entitled to overtime premium payments?

Determining when part-time workers or workers with flexible hours are entitled to premium payments requires reference to their contracts, collective agreements and national law, which will state when overtime payment starts. In some countries or situations part-time workers only get overtime premiums once they have worked more than the normal full-time hours for comparable workers. The important thing is to assess national law, the worker’s contract, and any collective agreement, to identify the point at which overtime is deemed to start.

If the law and contract allows for workers to not be paid overtime premiums until after the equivalent of full-time hours, this should be clearly stated in information provided to workers on the commencement of employment.

12. How does the weekly rest day requirement apply in the context of the comprehensive working hours system (CWHS) in China?

The ETI Base Code is clear that workers must be provided with a full day off in every seven-day period or, where this is permitted under national law, two days off in 14. This rest period is in addition to any annual leave or public holidays that are provided under national legislation and practice.

Chinese law does not expressly address the issue whether two days off in every 14 is allowed, but this must be a minimum basis for weekly rest.

13. Are workers allowed to work more than seven days without a rest day?

This depends on the law. The ETI Base Code states that, if the law allows, workers may not have a rest day in each seven day period, but they must have two full days off in every 14-day period.

14. Are there limits on daily working?

The ETI Base Code does not provide specific regulation on the number of hours per day that can be worked. Nevertheless employers should seek to avoid long working days as these may put a worker’s health at risk. There is a duty in the Base Code and national law to provide a safe system of work, which must prevent excessively long work shifts or continuous working. This is because of the health and safety risks that arise from excessive working time. In many countries national law will contain provisions related to either maximum daily working hours, minimum daily rest hours and rest days. It should be remembered that ILO Convention No 1 (1921) called for the adoption of an 8-hour maximum day.

15. Who is responsible for paying overtime premiums to agency workers in the UK?

As a general rule, the party responsible for paying workers is the party with whom the employment contract is made. Therefore, if workers are employed by an agency which contracts their services to a company, the agency would be responsible for paying overtime premiums to workers. However, companies using agency workers should verify that the workers are receiving appropriate overtime premiums and that working hours are being adequately managed. Companies are responsible for ensuring that the ETI Base Code is respected in relation to all workers involved in the production of goods or services covered by the Base Code, whether they are direct or indirect employees (agency workers). This should involve assessing whether the fees they pay to the agency are sufficient to allow for overtime premium payments.

16. If overtime is systematically requested of the same workers, is this a problem?

Potentially, yes. For example, in certain facilities, employers may offer overtime exclusively to migrant workers as there is a perception that they need less leisure time than local workers (because they are far from their relatives, they want to save money to send back home, and so on). However, local workers may perceive this as discriminatory because it prevents them from working overtime and earning more money. Therefore, employers should ensure that all employees are offered the opportunity to work overtime. Similarly, overtime should not be preferentially offered to those workers who have previously been willing to work overtime as this may give rise to an interpretation that there is a compulsion to work overtime in order to get a future opportunity to work overtime.

17. The revised wording of clause 6.2 has a footnote reference to the ILO’s 40 hours per week recommendation: would an ETI member be expected to ensure that their suppliers were actively reducing working hours to 40 per week?

ETI members are not expected to ensure that their suppliers are actively reducing the working week, although they might wish to encourage suppliers to do so, and give preference to suppliers who have, for example, negotiated a shorter working week with their workforce. ETI members generally set required working hours below 48 hours; for any which do not, the recommendation would also apply to employees in their own operations. The international standards (ILO Conventions) which underpin the Base Code establish 48 hours as the maximum length of the normal working week, but also recognise the importance, in terms of workers’ health and well-being, of moving to a shorter working week, overtime and as appropriate and achievable in the national context. This may be some way off in many countries, and bringing working hours down to the 48-hour standard will continue to be the priority for many ETI members.

18. Will ethical audits be expected to cover this footnote?

No. This footnote is a recommendation rather than a requirement and inability to meet this standard will not be seen as non-compliance under the ETI Base Code.  However, the length of the normal working week should be recorded as part of any audit, and it would be expected that employers explore options for continuous improvement that work towards achieving this. Employers are encouraged to discuss opportunities for reducing the working week with their employees as part of normal negotiations over conditions, and with the ETI member companies they supply.