Hi, my shift pattern includes shifts which require me to work periods greater than 6 hours. There are no in built breaks within these shifts.

I have approached my employer about this issue and their response was that they have a workforce agreement in place and therefore they can exempt section 12 of the WTR under section 23 of the WTR. My guess is that they can also exempt section 12 under section 21 as the job is a special case as described in section 21.

What I think they have missed is the effect of section 24 WTR on both sections 21 and 23 and their duties in regard to that;

Compensatory rest

24. Where the application of any provision of these Regulations is excluded by regulation 21 or

22, or is modified or excluded by means of a collective agreement or a workforce agreement under

regulation 23(a), and a worker is accordingly required by his employer to work during a period which

would otherwise be a rest period or rest break—

(a) his employer shall wherever possible allow him to take an equivalent period of

compensatory rest, and

(b) in exceptional cases in which it is not possible, for objective reasons, to grant such a period

of rest, his employer shall afford him such protection as may be appropriate in order to

safeguard the worker’s health and safety.

I may be wrong in this but my opinion is that there should be an in built break on the shifts where I am required to work longer than 6 hours. I don't think that the act allows employers to remove the breaks completely just whether they can be taken at that particular time or not.

Regardless of this section 24 overrides sections 21 and 23 and compensatory rest breaks must be provided ?

It is a dangerous job 24/7 so breaks are paramount.

What is your opinion ?

Thanks in advance.

No work place agreement through a work council or collective bargaining can take precedence over statute. That statute being the WTR giving an entitlement of 20 minute rest if working six hours or more. That entitlement cannot start at the beigining or end of that shift pattern

You have exceoptions such as millitary etc but not the general employer

n collective agreement overrides your rights. I think your employer is deliberately misinterpreting this.

however, it would be helpful if you can expalin your work pattern in a little more detail

What type of work do you do?

I work in a residential business as described in section 21 WTR so can be exempted but as section 21 states it is still subject to section 24.

I think that my employers realise that so have come back with this workforce agreement reply, but that is still subject to section 24.

Examples of shifts are 'all day', lunch given but a further 6.25 hours where there is no further break and 'late' shifts of 6.25 hours where no break is given at all.

My working week could involve any number of different shifts but they are all predictable.

No work place agreement through a work council or collective bargaining can take precedence over statute. That statute being the WTR giving an entitlement of 20 minute rest if working six hours or more. That entitlement cannot start at the beigining or end of that shift pattern

 

You have exceoptions such as millitary etc but not the general employer

Read the regulation again!

The law very clearly stipulates that a collective or workforce agreement CAN result in an exemption,

and the OP says that their work would potentially justify such a situation.

"General employers" who are not the military can and do have such agreements.

This employer appears to fall into that category, based on the OPs post.

The exceptions are not particularly uncommon services.

OP, nobody can have an opinion!

There are circumstances wherein the breaks can be varied by workplace agreements, and you say that such has happened.

We know nothing about the workplace,

nothing about the agreement,

and nothing about the rationale.

Simply, that the agreement exists.

Your opinion as to what should happen is not relevant to anything

- the law permits the employer to either allow compensatory breaks;

but it also allows them to pretty much do whatever they like.

That really is what section b says! "Such protection as is necessary" means nothing at all!

In order to have a collective agreement,

then this must have been agreed by a collective body

- either a union or some other association.

They are the people you need to speak to.

They determine agreements with the employer, and individuals cannot negotiate their own terms outside those collective agreements.

But yes,

to answer your question,

it is certainly possible for an employer to remove the breaks "completely".

I have negotiated such collective agreements

- not commonly, but not unusual either.

For example, workers may get a reduced working week to compensate for no breaks; or extra leave entitlement.

The whole point of this is that they are exceptions

- each one is a circumstance in itself and the answer is therefore individual to that circumstance.

There is no overarching rule that says that there are rules to follow for an exception!

I work in a residential business as described in section 21 WTR so can be exempted but as section 21 states it is still subject to section 24.

I think that my employers realise that so have come back with this workforce agreement reply, but that is still subject to section 24.

 

Examples of shifts are 'all day', lunch given but a further 6.25 hours where there is no further break and 'late' shifts of 6.25 hours where no break is given at all.

My working week could involve any number of different shifts but they are all predictable.

Ah. And the law does not say that you must have a break if you work 6.25 hours. In any shift the law says that if the shift is more than 6 hours you are entitled to one 20 minute break, which may be unpaid. You get a lunch break, and you had that break! So I assume that the collective agreement relates only to the 6.25 hour shifts?

I am not entirely sure as to why this shift was included on the shift pattern.

My employer is one who periodically changes profiles and shift patterns to suit business needs.

The facts are that as employees they voted for the shift pattern and profile (which would have been imposed in any case) and this was included unnoticed at first.

Others have questioned this.

As far as having an opinion is concerned

I am of the opinion that my employer is not fulfilling their duties in regard to section 24 WTR

and in my opinion that is a perfectly reasonable opinion to hold bearing in mind the circumstances.

What I am looking for is how my opinion translates in to facts.

The law states;

21. Subject to regulation 24, regulations 6(1), (2) and (7), 10(1), 11(1) and (2) and 12(1) do not apply in relation to a worker—

Section 21 is still subject to section 24 so the exemption due to the type of work that I do is still subject to section 24.

23. A collective agreement or a workforce agreement may—

(a)modify or exclude the application of regulations 6(1) to (3) and (7), 10(1), 11(1) and (2) and 12(1), and

Section 23 is still subject to section 24 as quoted in the OP.

Section 24(b) is for exceptional cases with objective reasons and is not a cover all for a predictable shift or work.

For instance the 6.25 hour shift in question is called a late shift,

there are other late shifts that are 8.75 hours for which they do give an unpaid break.

There is nothing exceptional in either shift and the work completed would be considered the core work of the business in both cases.

So why give a break in one case and not in another ?

I have contacted the union in this case and they have no opinion as to why there is no break provided,

they have been assured by the management team that its implementation is legally correct,

make of that what you will.

Both section 21 and section 23 enable my employer to exempt section 12(1) as far as I can see.

Whichever way they argue both are still subject to section 24 where the law states an employer shall, not should pay a compensatory rest period.

Section 24(b) is for exceptional circumstances, this being a shift that I can predict to be working in June 2019 would hardly rank as being exceptional nor would the duties involved.

This is my opinion now, my guess is that my employer has included this as it fits a profile and shift pattern and for no other reason than they can.

You are missing the point.

The point is that you have said that this system operates by virtue of a collective agreement.

This collective agreement has modified the effect of the WTR in respect of your employment.

This is lawful.

Your individual agreement or opinion has no relevance

- your shift patterns in respect of the WTR are determined by the collective agreement of the employer and the staff representatives as set down in either your recognition procedures or other memoranda of staff association.

So your only recourse must be to your representatives; and they will not be interested in discussing individual changes.

You would have to convince your colleagues and the representatives that there is validity in pulling out of the collective agreement.

And be very careful what you wish for.

I have already told you that such agreements generally go alongside some form of sweetener.

If you succeed to convincing your unions/association to withdraw then

(a) you will lose the sweetener and

(b) you open the door for the employer to decide that they will no longer abide by other collective agreements.

These can very well cover all sorts of things,

almost certainly how your wages are determined,

but also leave arrangements and other such things.

Starting to deconstruct the foundation of your negotiating system always hurts employees more than it hurts employers.

All that for a 20 minutes unpaid break which will mean,

in all probability,

that you will all then have shifts of 6 hours 45 minutes, instead of 6 hours 25 minutes.

Thank you for your input but I suggest you have missed the point yourself.

I have never stated that what my employer has implemented is anything less than lawful, it is that they have not implemented the whole of the law in this case.

They implemented section 23 meaning section 24

then applies as the compensatory measure built in to the act for those workers who due to special circumstances can have their rights in law exempted or modified.

Are you trying to say that section 24 has no relevance ?

24. Where the application of any provision of these Regulations is excluded by regulation 21 or

22, or is modified or excluded by means of a collective agreement or a workforce agreement under

regulation 23(a), and a worker is accordingly required by his employer to work during a period which

would otherwise be a rest period or rest break—

(a) his employer shall wherever possible allow him to take an equivalent period of

compensatory rest, and

(b) in exceptional cases in which it is not possible, for objective reasons, to grant such a period

of rest, his employer shall afford him such protection as may be appropriate in order to

safeguard the worker’s health and safety.

'SHALL' not should and my individual opinion has perfect relevance if as I believe my right in law is not being met.

Did you read any of my responses, or did you just skirt over the bits you didn't like? I have already explained in some detail that (a) you do not know that the "compensatory rest" is not accounted for elsewhere; or that (b) is a catch all phrase of no whatsoever.

You have a collective agreement. What this means is that you collectively, as employees, have agreed this arrangement with your employers. In making that agreement you collectively have varied the legal requirements, as you collectively are allowed to do. So you individually do not get to decide that you won't be bound by that agreement. Therefore, your individual opinion is irrelevant; and they are not your rights because you are part of a collective agreement to vary those rights. You cannot individually decide to opt out.

So, as I have explained, the only way to change this is to do so through the union. You must convince your fellow members that they wish to withdraw from the collective agreement - if that is now possible. You will then collectively bear the consequences of such a decision, because there are always consequences.

And you cannot both say that your employer has acted lawfully, but that they have also breached your rights. That is illogical. If they have failed to meet your rights in law, then they have acted unlawfully - so you actually did say that what your employer has implemented in unlawful! And you continue to do so.

So the simple answer is that you need to go to your union and convince the members that they wish to agree to withdraw from the collective agreement.

Please re read post 10, you still have not said what influence section 24 has upon section 23 and section 21 other than saying that 24(b) is a catch all when the act makes it clear that this is for exceptional cases.

The compensatory rest is not accounted for anywhere else.

RMT guidance;

47: What are the circumstances in which compensatory rest may be required?

In any case where a worker is required to work during a period that would otherwise be a rest period or rest break, the employer should wherever possible grant an equivalent period of compensatory rest. This includes those situations where workers are excluded from full entitlement because they have been designated as "special case" workers, shift workers or by the operation of a collective agreement.

Gov.uk

3. Compensatory rest

Workers may be entitled to ‘compensatory rest’ if they don’t have the right to specific rest breaks. Compensatory rest breaks are the same length of time as the break (or part of it) that they’ve missed.

A worker may be entitled to compensatory rest if:

they’re a shift worker and can’t take daily or weekly rest breaks between ending one shift and starting another

their workplace is a long way from their home (eg an oil rig)

they work in different places which are a reasonable distance from each other

they’re doing security and surveillance-based work

they’re working in an industry which is very busy at certain times of the year – like agriculture, retail, postal services or tourism

they need to work because there’s an exceptional event, an accident or a risk that an accident is about to happen

the job needs round-the-clock staffing so there aren’t interruptions to any services or production (eg hospital work)

they work in the rail industry on board trains or their job is linked to making sure trains run on time

their working day is split up (eg they’re a cleaner and work for part of the morning and the evening)

there is an agreement between management, trade unions or the workforce (a ‘collective’ or ‘workforce’ agreement) that has changed or removed rights to these rest breaks for a group of workers

There are many others.....

I give up. If you wish to take this further, have at it. But you are so keen on being clever that you are totally missing everything I am telling you. This is not a theoretical argument - you are messing with other people terms and conditions with no regard for them. Either go to the union, sue your employer, or leave it alone. I'm out.