14 May 1999

Time to check your WTR agreements

Some farms have still not negotiated WTR

agreements with staff

THE Working Time Regulations 1998 have been in force for more than six months, but some farmer employers who need to have not yet negotiated individual worker agreements to allow employees to work more than 48 hours a week.

Such agreements must be negotiated and not imposed, says Martin Quinn of solicitor Roythorne & Co, Spalding.

Records, including copies of agreements, must also be kept of which workers have agreed to work more than 48 hours and of the hours they and others work.

Time sheets and PAYE records may well be adequate, but Mr Quinn advises keeping a rolling record of average weekly hours worked within a reference period. Records of hours worked must be made available on demand for inspection by the Health and Safety Executive.

As well as individual worker agreements, the legislation provides for workforce and collective agreements, but Mr Quinn is reluctant to advise farmers to contemplate these arrangements. The provisions for setting them up involve the election of worker representatives and votes among the staff on the agreement itself.

But one grey area is that of senior staff who may be covered by the derogation for unmeasured working time. Workers whose hours are not predetermined and are unmeasured are specifically excluded from the 48 hour week rule, says Mr Quinn. This applies to workers who have complete control over their hours and whose time is not monitored or determined by another.

Anyone in doubt should get advice on their situation, he suggests, as conditions vary widely across the industry.

There is an automatic entitlement in the WTR to at least three weeks paid leave annually after three months service. This rises to four weeks from November this year. The Agricultural Wages Order already provides for a greater holiday entitlement in most cases than the WTR, and makes the specific provision that holiday entitlement is in addition to bank holidays. There is no option for farmers to provide less than AWB pay and holidays.

To bring the AWO in line with the Working Time Regulations, the order now provides annual leave entitlement to all casuals after three months service.

The calculation of three months service runs from the day employment commences for 13 weeks. So, even though an employee may only be working two days a week, their length of service for this purpose is calculated as for full timers. There are now few distinctions between full, part-time and casual staff in employment law, points out Mr Quinn, and there is no flexibility within the Working Time Regulations on holiday entitlement.

Within the livestock sector, the provision of the statutory 11 consecutive hours rest between each working day and an uninterrupted rest period of not less than 24 hours in each seven-day period is causing some practical difficulty. This may be varied where there is a need for continuity of service or production, or where there is a foreseeable surge of production, but it is not an automatic derogation. In agriculture, examples of where this exemption may apply include situations where there is a need for livestock to be tended, milking or busy times such as harvest.

It is the characteristics of a workers activity which determine whether the derogation may be used, says the NFUs employment law adviser Janine Garai.

Nor does the above derogation remove the need for rest breaks, if these have not been taken at the appropriate time because the derogation is used, the worker must be permitted to take an equivalent period of compensatory rest. An equivalent period of rest should be considered to be a period as long as that which the employee was entitled to take but was notable to take, advises the NFU. Compensatory rest should be provided within a reasonable time from when the entitlement to rest was modified. This should usually be possible within a couple of weeks for daily rest and a couple of months for weekly rest.

Although many minor breaches of the Working Time Regulations will be dealt with by a Magistrates Court, which can impose a maximum fine of £5000, the maximum for serious breaches at Crown Court level is unlimited.