Collective Agreements & Workforce Agreements (Regulations 1, 21 & Schedule 1)

General Perhaps the most disappointing, and most worrying, provisions relate to the type of agreements which can modify the operation of the legislation. These can modify the provisions on daily and weekly rest, breaks, maximum weekly hours and night work.

The Regulations permit these modifications to be made by collective agreements. This is required by the Directive.

The Regulations introduce the additional (but desirable) requirement that the collective agreement must be with an independent trade union. It would be preferable if the Regulations also required the agreement to be in writing.

Rights to compensatory rest under agreements are enforceable in Tribunals, and the Regulations do provide that all rights granted under agreements which modify the Regulations should be enforceable by individual workers: rights under the Directive should only be given up when enforceable rights are guaranteed in return.

The Directive allows derogations by collective agreements or 'agreements between the two sides of industry'. These agreements must be 'at the appropriate collective level', but like their predecessors, the Government believes this permits agreements with elected workforce representatives, of no permanence or status. It goes further: it allows for agreements made between employers and the majority of individual members of the workforce. These 'workforce agreements' with representatives or workers are only permitted for workers not covered by collective bargaining.

This does not adequately implement the Directive. It also causes immense practical and policy problems.

Take first agreements made with representatives. The Regulations allow the employer to determine the number of representatives and their term of office. There is no requirement of independence. There is no protection against representatives being under the domination or control of employers, or offered inducements by employers. 
There are inadequate safeguards for the election of representatives.

For agreements with the majority of individual members of the workforce, there is inadequate protection against workers being coerced or induced to sign agreements which give up rights. This is bad enough for the workers who sign: even worse for those who refuse to sign but then find their rights removed through the actions of others over whom they have no control.

This is the central problem: how can individual employees be bound by these agreements? What redress do they have to challenge the validity of the agreements: the appropriateness of the representatives and the status of agreements purportedly reached by representatives. The answer appears to be 'none', which is in breach of European law requirements regarding representatives and is a recipe for industrial chaos.

The Regulations do not even require the employer to take account of the views of the workforce when deciding the arrangements for representatives.

The position is particularly acute for workers who join the employer after a workforce agreement has been concluded and yet are bound by it for up to five years.

There is a democratic deficit. Workers who are dissatisfied with an agreement have no way of challenging it or calling representatives to account, whereas unions are accountable to their members through their rule books and democratic procedures.

Employers who wish to take advantage of flexibility under the Regulations should have one option: recognise a trade union in respect of working hours. This gives flexibility coupled with the protection of an independent representative and also achieves the policy of encouraging union recognition without a proliferation of ballots, elections and attendant legalism and bureaucracy.