Under the regulations, which came into force in October, workers can agree to relax, opt out of, or clarify various provisions in the regulations by way of three types of agreement. These agreements are collective agreements (made between trade unions and an employer), workforce agreements (made between an employer and elected representatives of the workforce) and relevant agreements (which 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).
There are some provisions in the regulations that can only be varied or clarified 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.
A relevant agreement (including a workforce agreement) can also be used to clarify the extent of working time; enable workers to agree to opt out of the 48-hour week; fix a successive reference period for administrative purposes; fix the employer's leave year; vary holiday notice provisions; to clarify the ambit of night work; clarify any method of payment for holidays on termination of employment; and provide that an employee must pay back overused statutory holidays on termination of employment.
Since the introduction of the regulations, there seems to be a fairly common misconception among employers. This is that the workforce agreements have to be entered into between the employer and elected representatives of the whole workforce. If this were true, it would restrict the use of workforce agreements considerably.
- Workforce agreements do not need to involve the entire workforce
- Employers can enter into different agreements with particular groups of employees
In fact, the regulations (changed since the draft version) clearly state that an agreement can be entered into either with all relevant members of the entire workforce or all relevant members of the workforce who belong to a particular group and that the agreement must be entered into with representatives of the workforce on the one hand or representatives of the particular group on the other.
This means that an employer can enter into different workforce agreements with different groups of its workers.
A particular group is a group of relevant members of the workforce who undertake a particular function, work at a particular work place, or belong to a particular department or unit within the employer's business. The Department of Trade and Industry guidelines add that "the group must share a work place, function or organisational unit within a business".
If a company has a diverse range of employees or workers carrying out different functions, and in particular where employees work in different buildings, or 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 and functions is commonplace, so consideration should be given to identifying pockets of workers who could constitute a group.
Brian Gegg is a senior associate at solicitor Masons and can be contacted on 0171-490 4000.