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Flexing time at work

Many employers think working time agreements have to be entered into with elected representatives of the entire workforce, but this is not so, writes Frances Alderson

THE EUROPEAN Working Time Directive is one of the most significant pieces of health and safety legislation to be enacted in this country in recent years.

It recognises the right of every worker to a working week of no more than 48 hours, to rest periods during the working day and

between work periods, and to paid holidays.

Each member state of the European Union was required to enact the directive in its own legislation and so it provided some flexibility in its implementation.

In the final version of the UK's Working Time Regulations 1998, which came into force in October, the government took advantage of the flexibility in the directive and made provision for several exemptions and derogations in its implementation. Under the regulations, workers can agree to relax, opt out of, or clarify various provisions in the regulations by way of three types of agreement:

'Collective agreements', essentially between trade unions and employers;

'Workforce agreements', which are made between an employer and elected representatives of the workforce; and

'Relevant agreements', which are defined so as to include Collective or Workforce agreements but also any other written agreement that is legally binding between the employer and the worker, and which would include a contract of employment.

The are some provisions in the regulations which can only be varied by use of Collective or Workforce agreements. These include clarification of the duration and terms of rest breaks, modifying or excluding night work provisions and extending the 48-hour week reference period for up to 52 weeks.

Since the introduction of the regulations, there appears to be a fairly common misconception among employers that Workforce agreements have to be entered into between the employers and elected representatives of the whole workforce. In fact, the provisions of the regulations dealing with workforce agreements clearly state that such an agreement can be entered into either with all

'relevant members' of the entire workforce or all of the relevant members of the workforce 'who belong to a particular group', and that the agreement must be entered into either with representatives of the entire workforce or representatives of the particular group.

This means that an employer can enter into different workforce agreements with different groups of workers - but this demands consideration of the definition of a 'particular group' and the definition of 'relevant members'.

A 'particular group' is defined as a group of relevant members of the workforce who undertake a 'particular function, work at a particular workplace, or belong to a particular department or unit within the employer's business'.

Guidelines from the Department of Trade and Industry add some assistance in saying that 'the group must share a workplace, function or organisational unit within a business'.

But if a company has a diverse range of employees or workers carrying out different functions (particularly in different buildings), or many worker who can be categorised into different job functions, there is considerable scope for different workforce agreements being entered into with different groups within the company, although employee representative elections would be necessary within each group. In the construction industry, a workforce split into different skills, functions and, indeed, locations, is commonplace, so consideration should be given to identifying pockets of workers who could constitute a 'group' for the purposes of the regulations.

Whatever group of workers is involved, the provisions apply to relevant members of the workforce, or group, and this excludes any worker whose terms and conditions of employment are provided for either wholly or in part in a collective agreement.

It is not yet clear whether this means a collective agreement pursuant to the regulations only, or any collective agreement. But, from the wording of the regulations, there seems no reason to suppose that the definition of the term is limited, so if any worker has any condition of employment governed by a collective agreement with a trade union, it will not be possible to enter into a workforce agreement with that person.

Where unions are not involved in a particular company or industry, the scope for using workforce agreements is clearly wider than many may have envisaged, and agreements might be made with some groups of workers that need not be accepted by - or be relevant to - the other groups.

Frances Alderson is a partner with law firm Masons

Key points

Flexibility is built into implementation of the new Working Time Regulations.

Agreements to relax or opt out of certain provisions can be made either with the entire workforce or with a particular group, so an employer can enter into different agreements with different groups of workers.

If any worker has any condition of employment governed by a collective agreement with a trade union, it will not be possible to enter into a separate workforce agreement with that person.

Law Report is a weekly column in Construction News covering legal issues of all kinds - contractual, employment, industrial relations and many others. To help us provide a steady flow of quality, readable legal articles we have created a panel of expert advisers. They are: Jeremy Winter, a partner with law firm Baker & McKenzie; Frances Alderson, a partner with law firm Masons; Guy Cottam, a conciliator, arbitrator and chairman of the arbitration advisory panel of the Institution of Civil Engineers; Daniel Atkinson, executive director (International, Legal and Arbitration Division) of James R Knowles; and Rudi Klein, a barrister and chief executive of the Specialist Engineering Contractors group. If there are subjects you think we should be covering, please contact David Taylor at Construction News on 0171 505 6849.