8. Working time agreements

While the individual opt-out only applies to the 48-hour week under WTR, collective agreements have a wider role to play in adjusting and adapting many of the basic provisions. There is also a role for “workforce agreements” where there are no recognised unions and other “relevant” agreements.

Three forms of agreement are recognised:

• a collective agreement involving independent unions;

• a workforce agreement between “an employer and the workers employed by him or their representatives” which satisfies criteria set out in the regulations; or

• a relevant agreement.

A collective agreement must be one involving independent trade unions (within the meaning of section 5 of the Trade Union and Labour Relations (Consolidation) Act 1992).

A workforce agreement is a defined arrangement for consulting workers where there is no collective agreement. It must be in writing and have effect for a specified period not exceeding five years. It should be clear who it applies to, signed by representatives of the workforce (or the majority of workers employed where there are less than 20) and follow rules on the election of representatives. And the employer must first provide copies of the text and any guidance required to understand it.

A relevant agreement can be a workforce agreement or any provision of a collective agreement which “forms part of a contract of employment.” However, it can also be “any other agreement in writing which is legally enforceable” between worker and employer (WTR 2) including individual contracts of employment.

The WTR agreement at Land Rover provides for a 52-week reference period, no individual opt-out, and weekly monitoring with all variance away from the directive discussed prior to it happening (and an appropriate recovery plan put into place and agreed). At Leyland Trucks “both parties recognise the need to apply the Working Time Regulations while maintaining the operational flexibility of Company operations. In general the regulations will be implemented as prescribed excepting those areas that allow permitted variation through this collective agreement”. Practice at the company includes a weekly report detailing workers averaging over 40 hours in the 17-week reference period. And at British Waterways the issue is reviewed jointly with the company at the same time as equal pay and equal opportunities.

The CAR aviation regulations follow the WTR approach allowing the definition of working time to be extended by relevant agreement. This is also the case on the inland waterways and in fishing (in relation to the definition of night work). However, the RTR regulations refer only to collective and workforce agreements (even though Department for Transport (DfT) guidance refers to relevant agreements). And under the seafarers’ SHWR regulations, collective or workforce agreements permitting exceptions from daily and weekly minimum rest periods have to be authorised by the Maritime and Coastguard Agency.

Some WTR provisions may be modified by any “relevant” agreement, including a collective or workforce agreement. Others can only be modified by a “collective or workforce agreement” (WTR 23).