I know that you can opt out of the night time 10 hrs maximum working. It has to be a collective workforce/workplace agreement.
However
Can you be forced to opt out. I don’t want to work more than 10 hr night shifts. But I’m being told that because everyone else works more I have to as well
We did have a workplace agreement in place but it has never been revisited since the WTD came in, and it should be a maximum of every 5 years
Searched and searched for an answer but I’ll I find is how to opt out.
I’d say that when the workforce agreement was put in place it was binding on the whole group it applied to.
As you know a workforce agreement lasts a maximum of 5 years so I suppose you could argue that there’s no valid workforce agreement in place, of course when or if the relevant group renew the workforce agreement you will be bound by it.
I’d say you can’t opt out by yourself and you can’t stay in by yourself, as long as you’re part of a workforce group, ie drivers, you’re bound by agreements made for the group.
The worker can withdraw their opt-out consent by giving you notice. A week’s notice of withdrawal is required unless you agree a different notice period, but it can’t be more than three months.
An opt-out agreement will only be valid if the employee freely consents to it. It is illegal to dismiss or disadvantage an existing employee for refusing to opt-out, so don’t pressure employees into signing. However you can legally refuse to hire someone new who declines to opt-out.
The worker can withdraw their opt-out consent by giving you notice. A week’s notice of withdrawal is required unless you agree a different notice period, but it can’t be more than three months.
An opt-out agreement will only be valid if the employee freely consents to it. It is illegal to dismiss or disadvantage an existing employee for refusing to opt-out, so don’t pressure employees into signing. However you can legally refuse to hire someone new who declines to opt-out.
Could you tell us where those quotes come from, the reason I ask is because a quick search suggests they’re from an article that’s relevant to an opt out of the 48 hour week for the working time regulations 1998.
gov.uk/night-working-hours/hours-and-limits
Limits on working hours for night workers
Additional rules apply to night workers on top of the rules on maximum weekly working hours and rest breaks.
Night workers must not work more than an average of 8 hours in a 24-hour period.
The average is usually calculated over 17 weeks, but it can be over a longer period of up to 52 weeks if the workers and the employer agree, eg by collective agreement.
Regular overtime is included in the average, but not occasional overtime.
Workers can’t opt out of the limit.
and another
WORKING AT NIGHT
Night-time is defined as between midnight and 4am for goods vehicles and 1am and 5am for passenger vehicles.
Working time should not exceed 10 hours in any 24 hour period if any night work is undertaken. The 10 hour limit can only be exceeded where an agreement is negotiated with the union however break and rest periods provided for in the EU Drivers’ hours rules will still apply. Night workers will also still be eligible for health checks as defined under existing Working Time Regulations
Under the Regulations, “working time” for mobile workers must not exceed:
an average 48 hour week (normally calculated over a 4 month reference period);
60 hours in any single week;
10 hours in any 24 hour period, if working at night.
However, use has been made of two derogations contained within European Directive 2002/15/EC, which allow for employers to extend the reference period for the average 48 hour week from 4 to 6 months and allows for night shift workers to exceed the 10 hour working time limit. These provisions are both subject to a collective or workforce agreement being in place (see Section 7.1 - “relevant agreements”). transportsfriend.org/pdf_fil … idance.pdf
Honked:
The law on opting out of any WTD are standard, it has to be fair and reasonable.
Sorry but it’s not the same at-all, an individual can opt out of the WTD 1998 48 hour week, to opt out of the RT(WT)R night time limit requires a workforce agreement.
A workforce agreement is by it’s very nature is an agreement to opt out by all who it represents.
Honked:
The law on opting out of any WTD are standard, it has to be fair and reasonable.
Sorry but it’s not the same at-all, an individual can opt out of the WTD 1998 48 hour week, to opt out of the RT(WT)R night time limit requires a workforce agreement.
A workforce agreement is by it’s very nature is an agreement to opt out by all who it represents.
Seems you are right.
Night workers
Identify the mobile workers who are likely to be affected by the limits on night work
If more than ten hours working time is normally performed (during a 24 hour period) consider whether the number of hours can be reduced
If necessary, consult your workforce about the possibility of working longer hours under a relevant agreement transportsfriend.org/wtd/application.html
Honked:
The law on opting out of any WTD are standard, it has to be fair and reasonable.
Sorry but it’s not the same at-all, an individual can opt out of the WTD 1998 48 hour week, to opt out of the RT(WT)R night time limit requires a workforce agreement.
A workforce agreement is by it’s very nature is an agreement to opt out by all who it represents.
Sorry, my explanation was wrong, an individual can opt out of the collective agreement for night work. If you are in but want out, as the OP seems to want, then he just needs to inform his emplyer in writing that he want to ‘opt back in’ to the regulations.
But the original workforce agreement has expired. If the OP doesn’t want ‘in’ on the new one then it’s time to negotiate his contract because the terms have changed. Just like any terms an employer makes to your contract - you don’t have to accept it
Unfortunately - the only way out if the collective are going to agree to a new agreement and the OP doesn’t want to so is rejecting the changes is to be made redundant.
But of course - even if the workforce agreement is renewed - it doesn’t mean he HAS to work more than 10 hours, just that he CAN work more than 10 hours
Honked:
Sorry, my explanation was wrong, an individual can opt out of the collective agreement for night work
I don’t think they can to be honest, if you belong to a particular group of workers, ie drivers, you’re stuck with any agreement that applies to that group of workers.
shep532:
But the original workforce agreement has expired. If the OP doesn’t want ‘in’ on the new one then it’s time to negotiate his contract because the terms have changed. Just like any terms an employer makes to your contract - you don’t have to accept it
Assuming that there are several drivers I don’t think renegotiating a contract is an option once a new workforce agreement is in place.
An agreement is a workforce agreement for the purposes of these Regulations if the following conditions are satisfied–
(a)the agreement is in writing;
(b)it has effect for a specified period not exceeding five years;
(c)it applies either—
(i)to all of the relevant members of the workforce, or
uto all of the relevant members of the workforce who belong to a particular group;[/u]
Given that an agreement has in the past been signed it seems likely that some of the drivers are happy to do more hours, if that’s the case the OPs best option is probably to simply ask for the shorter runs and see what response he gets
Honked:
Sorry, my explanation was wrong, an individual can opt out of the collective agreement for night work
I don’t think they can to be honest, if you belong to a particular group of workers, ie drivers, you’re stuck with any agreement that applies to that group of workers.
shep532:
But the original workforce agreement has expired. If the OP doesn’t want ‘in’ on the new one then it’s time to negotiate his contract because the terms have changed. Just like any terms an employer makes to your contract - you don’t have to accept it
Assuming that there are several drivers I don’t think renegotiating a contract is an option once a new workforce agreement is in place.
An agreement is a workforce agreement for the purposes of these Regulations if the following conditions are satisfied–
(a)the agreement is in writing;
(b)it has effect for a specified period not exceeding five years;
(c)it applies either—
(i)to all of the relevant members of the workforce, or
uto all of the relevant members of the workforce who belong to a particular group;[/u]
Given that an agreement has in the past been signed it seems likely that some of the drivers are happy to do more hours, if that’s the case the OPs best option is probably to simply ask for the shorter runs and see what response he gets
Any agreement can be withdrawn by giving notice. It is why you ‘hand in your notice’ if you are leaving your job.
The regulations make a provision for this and you have the right to not suffer a detriment by doing so.
b)subject to any provision in the agreement for a different period of notice, shall be terminable by the worker by giving not less than seven days’ notice to his employer in writing.
The regulations only state that the company can refuse to take on ‘New’ employees if they refuse to do night work. If you are already employed you have the right to cancel your ‘opt out’ agreement. You cannot be forced to work longer then the law allows (subject to the opt out rule). Slavery was abolished a couple of years ago
Irrespective of whether the original agreement has expired, and even if they pass a new one, every worker has the right (by giving the correct period of notice) to ‘opt out’ of the agreement.
But you appear to be quoting the 48 hour week in the WTR 1998 again, I agree that part of that regulation can be opted out of by individual workers but unfortunately for the OP drivers don’t work to those regulations.
Drivers on EU regulations work to the Road Transport (Working Time) Regulations 2005, the OP is asking about the night time limit that he doesn’t want to be opted out of, as far as I can see the night time working limit in the RT(WT)R 2005 can only be opted out of by a workforce agreement that applies to a particular group of workers.
Legally at the moment he isn’t opted out because there is no valid opt out agreement in place, however as far as I can see, if the drivers at his company follow the rules to renew the opt out agreement he will be part of that agreement whether he likes it or not.
I agree that he can withdraw his agreement but unfortunately as far as I can see it may also mean opting out of his job, which I assume isn’t what he wants.
‘Night work’ is just a subsection of the regulations, it is there to define a particular section just like it does with these:
1.Citation, commencement and extent
2.Interpretation
3.Application
4.Working time
5.The times of breaks, rests and periods of availability shall…
6.Periods of availability
7.Breaks
8.Rest periods
9.Night work
10.Information and records
It is irrelevant under the regulations which part of the sections that you want to ‘opt out’ or back in to. Furthermore, there is extra protection for night workers (health screening etc) along with the right to not suffer detriment by giving notice as required.
The regulations provide a get out to employers by ‘pushing’ night workers on to day work but that could open up a new can of worms. Employment Law is a mine field, add in the EU rules and driving rules, Health & Safety Act and you have a solicitor booking a viewing for a condo in the Dominican
Luckily, I have a good working knowledge of the legal side after 4 Tribunal cases in my favour
If you don’t want to do it, then don’t ■■■■■■’ do it, but don’t be surprised if it costs you your job. And that’s whether you do it ‘legally’ or by sticking the middle finger up…
If you don’t want to do it, then don’t [zb]’ do it, but don’t be surprised if it costs you your job. And that’s whether you do it ‘legally’ or by sticking the middle finger up…
Yup, pretty much sums it up.
Just because it’s in the law and gives you rights, doesn’t mean you will be protected. Hundreds of people lose their jobs every year but don’t take their employers to court, even though they could. If you don’t want to do the job, find one that you will do
wildfire:
remember that the opt out is for working time not total shift time
This. Not opting out of the 10hr limit doesn’t mean you’ll be on duty no more than 10hrs. Add in a 45 minute break and a bit of PoA and you can easily do a 12hr night shift but not exceed the 10hr limit. At the pallet network I used to do night trunking at, if you used the tacho modes to the letter you had 1hr other work, 3hrs driving, 15 minutes other work, 1.5hrs PoA, 15 minutes other work, 30 minutes PoA, 5 minutes other work, 45 minutes break, 2hrs PoA, 15 minutes work, 30 minutes PoA, 15 minutes work, 3hrs driving, 15 minutes work.
13h 35 minute shift, 8hrs 20 minutes work/driving in total so still legal to do with plenty of time to spare if you didn’t have a workplace agreement.
Night workers
