Working time directive question

chainsaw

buggy_boy wrote: »

Yeah I think that is our best bet stick together, interesting I have read that a group agreement can overide the WTD rules on rest, so hopefully they can come up with an agreement.

Im not sure how much it is the company actually wanting to implement it or as it has come out during pay negotiations the company is using it as a big stick to try and force us to have another year of little or no pay rises.

If you have to stay at home and are not allowed to leave for more than a minute or two you may be able to claim that all your hours on call are worked time regardless of it you are working or even sleeping

based on an 8 hr day you will be making yourself available for 16 hrs a day of call,

16 hrs X 7 days = 112hrs
112hr X 13 weeks (1 in 4 call) = 1456 hrs
1456 hrs divided by 48 weeks (allowing for holidays) = 30.3 hrs per week.

Add 30.3 hrs to the 40hrs a week you work anyway and that's an average of 70.3hrs per week every week clearly breaking the WTD/WTR max of 48hrs a week. Something else for your employer to think about. Perhaps all things considered he will just leave things as they are.

CKhalvashi

Buggy_Boy wrote: »

I am contracted to work 9-5 with 30mins break 5 days a week, on top of this I do a 1 in 4 oncall which covers all the time I’m not working....

Nothing wrong with this, in fact, I’m on call 24 hours a day if anything goes wrong internally. The office is open 24 hours, however only has 3-4 staff in over night, all of whom (with the exception of the Holly, on the phones from 18-23h, are also day staff)

Buggy_Boy wrote: »

...However my employer is now saying they dont have to pay me if I choose to take my 11hrs stand down for the time it interferes with my normal working day so in the example above I get home at 3am after working 18hrs I go on stand down until 2pm, the company is saying they want to then not pay me from 9am until 2pm.

This will depend what you do for a living, however I find it perfectly sufficient to drag myself out of bed, get into my car and drive 35 miles into the office at 3am, rather than never seeing family/friends/anyone else. Whether you could do the same will depend on your contract.

Legally, it’s your employer that would be sided with here, as on-call time is not (was not last time I checked) anything to do with the WTD.

chainsaw

CKhalvashi wrote: »

Legally, it’s your employer that would be sided with here, as on-call time is not (was not last time I checked) anything to do with the WTD.

You have not checked very hard then if you think on call time is nothing to do with the WTD

Anytime someone works goes towards the average max 48 hr week you can work so if you are on call and working then then it certainly has everything to do with the WTD.

Then there is the debate about what is working hours and not working hours.. You have know doubt read the other posts so I won't go over old ground except to say if you have to remain somewhere of your employers choosing whilst on call but not working then those hours are working hours, so once again callout has everything to do with the WTD.

Also as people are entitled to an 11 hr continuous break every 24 hours per the WTD / WTR that has implications for any employer who puts his staff on 24 hr call and actually expects them to work more than 13 hours in a 24 hour period.

I would say the most famous legal cases involving the WTD are the Simap and Jaeger cases where the European Court rules that time spent on call but not working (depending on exact circumstances) was worked hours.

Since those cases there have been many more cases especially in England that have come to the same conclusion, each case is slightly different as in the way people worked call but the findings are almost always the same.

As if all that was not enough there has been a running battle in Europe for over a decade between the European Commission and European Parliament. The Commission keeps trying to water down the rules on working time, specifically call out (and any other name this type of working goes by) The European Parliament consistently wins these battles and votes and the European Court consistently back this position.

At the last vote about 18 months ago in the European Parliament, the Parliament overwhelming voted that call out time should remain working time and after a decade of fighting and loosing the European Commision finally threw the towel in and accepted that callout was working time.

The definition of working time in paricular if callout is working time has been a central issue to the WTD since its introduction or at least since the Simap case in 1999.

If there were no rules regarding callout and the amount of hours you have to work or be avavilable on call what would stop employers placing people on call 24/7 365 days a year just in case even when they were not needed?

I don't think we know enough about Buggy Boys situation to be able to say where he stands legally but i guess legality would be on his side not the

zagfles

chainsaw wrote: »

I know there is no rule saying you have to be paid when you sleep in the next day.

Hence the WTD doesn't help him. But negotiation might...

The problem Buggy Boy has is that having been paid for what I am assuming is years for sleeping in the next day his employer no longer wants to pay him. He is no longer the reasonable give and take employer he was and that you say you have. In this situation why would Buggy Boy continue to work more than 13 hours knowing he was now working for nothing because anytime that he needs to rest the next day will now be deducted in money?

Why indeed. I wouldn't if my employer tried anything like that with us and wasn't willing to negotiate. They'd soon have a major problem...

Employee says "WTD says I MUST have 11 hours off".

Employer says "fine, but you won't get paid"

Employee says "thats OK I won't need anytime off because I won't be working after 10.30pm"

And employer says, "err, OK, let's talk". We've been through this sort of stuff loads of time at our place. Generally whoever starts throwing regulations around loses!

When the WTD first came out it was HR who tried to alter our (then) shift/oncall rota to something completely stupid, which would have involved twice as many weekends on 12 hours rotas, Based on the (true) fact that our rota could violate the WTD. (this was before all the legal cases which defined some oncall as working, so that was never the issue, only callout ie actually working was at issue).

We told them where to stick it. We carried on exactly the same as before, on a rota all the staff and local management were perfectly happy with. We provided HR with facts and figures which proved that in the last 3 years the WTD was rarely breached, and we "promised" to make minor adjustments to ensure those rare breaches wouldn't happen again, eg by having escalation routes if someone has been working too long. Which we had anyway, but rarely used.

Your example "If, say, I got called at 4am after having finished work at 5pm....etc"

was a bit short on detail. When you catch up on your sleep were you starting at 10pm instead of 9pm? I will assume so. So you get paid to sleep for a whole hour.

No. What I meant was:

I worked normal day 9am-5pm
I was oncall that evening/overnight ie 5pm-9am
I got a call at 4am, maybe working till 8am

That means I've already had my 11 hours off ie 5pm-4am. Therefore my employer could expect me in at work 9am the next day without violating the WTD.

But if I'm called in the night I will be catching up with my sleep. A callout at 4am has cost me at least 3 hours sleep, so I'd probably turn into work at about lunchtime.

Nothing to do with the WTD, just common sense that if you're called overnight you need to catch up on sleep.

The other example I gave of a short callout 2300-2400. Normally I'd go to bed at about 2300, so that callout has cost me an hour's sleep. So I'd sleep in about an hour, and go to work an hour late. Again common sense, but the WTD would insist I stay off till 11am.

Well if that's your standard type of call out then I am sure you are happy but Buggy Boy is saying he likely to work 18 hours or greater and that he won't get paid any hours at all to sleep in.

Which is why I suggested shifts - as we used to work when callout was higher. That way at least you are guaranteed 8 hours off, not working and not oncall.

How much sleep time do you think you should have if you were called out at 01.00-02.00 and then again at 04.00 - 05.00? You have only worked two hours.

That is actually quite common with us, and I find it far worse than just working solid from 0100-0500. I'd probably take the whole morning off and work at home when I eventually wake up. I doubt I'd go in.

Basically we are flexible, and so therefore are management. We won't take the p, nor will they.

I didn't say it did. Have you ever read the WTD do you realize that actually its the WTR that apply in the UK. Have you read either? Do you know the difference? I have read both many times.

We have an excellent union rep who understands the law inside out. He's explained it all to us. The fact he managed to convince HR, our management and us that we are OK is good enough for me.

BTW you mentioned the "nanny state" before the nanny state we used to send children up chimneys and down coal mines or work them from dawn till dusk 6 days a week in the mill. If the mine collapsed or you got sucked into the mill machinery, tough there was no compensation, no sick pay, no NHS just the sack and you would probably be thrown out of you mill/mine house assuming you were not dead. People / Employers used to think that was OK as well and they would again if the nanny state disappeared.

:rotfl:I thought such a ridiculous strawman would come up! "All regulation is good because kids used to be sent up chimneys!!"

You didn't say if you enjoyed reading my links to articles that say you are working if you are at home asleep in bed.

Don't really care. When I am asleep I am not working. Period.

zagfles

chainsaw wrote: »

Sorry about the way I posted my last post its all over the place, I am not used to the QUOTE thing yet as I don't usually use message boards.

You need to put /QUOTE in square brackets at the end of the section you want to quote. Then write your reply. Then put QUOTE in square brackets at the start of the next bit. I use the quote picture at the top of the reply window to save typing, this does both and you can delete the one not required.

I just wanted to make another point about the 11 hour continuous rest break. If someone is actually working a week at a time on call then they need to calculate backwards as well as forwards

Lets say someone works a 09.00 - 17.00 day and call out 00.00 - 03.00 and then come into work at 09.00 (or even 12.00) then during that 24 hr period they will not have had an continuous 11 hr rest..

It might be argued that they had the 11 hr rest before they started work at 09.00 but as the period covered is more than 24hrs that would be wrong
and even that slim argument is lost if you worked similar pattern the day before. It would be possible to work a whole week and never get your legal 11hr continuous rest!!

This is exactly the point I was making with my 2300-2400 callout example. I should really wait till 1100 to go into work, in your example 0000-0300 callout, should wait till1400.

chainsaw

zagfles




I really don’t know where you are coming from.

You say the WTD won’t help Buggy Boy ( BB ) when I have explains several times how it does as a negotiating tool to keep the T&C’s he has now or if that fails as a way of being able to work more sociable hours without losing money yet you don’t see it.



You say negotiating might help BB as if he or I have not thought of that! BB is asking where he stands if his employer forces the issue. I have given him some advice you have stated the obvious, something he has doubtless thought of himself



What’s your advice if negotiation fails? That’s what he is asking for.
You say if your employer tried anything like that with you they would have a major problem. Tough talk. Well what would you do then if you are not going to use the law / WTD / WTR and your employer said you would have to work 18 hrs a day or more with no sleeping in or a deduction of money if you do sleep in whilst threatening disciplinary action of even the sack if you refuse?



I cannot comment on your negotiations re shift it contains too little detail and lots of tough talk but from the examples you have given of your callouts I am not surprised you kept the status quo because you are hardly ever called out.



You say your tough talking was before all the legal case defined some on call as working. That’s a relatively small window that has been closed for over a decade but fair enough well done you told your company to stick it but what would you have done if the company said no you stick it do what we say or you are sacked?



I still think your callout is voluntary, you didn’t say if that’s the case or not, so your negotiating tool was to refuse to do it. Other people don’t have that luxury they have to work callout its in their contract of employment.


You say you provided HR with facts and figs to prove you were not breaking the the WTD yet you clearly are breaking the 11hr rule. The truth is it suited you and management to ignore the WTD. That’s not the same as not breaking it. Everyone is happy especially management who don’t have to take on more men to cover the extra shifts.


If everyone is happy at your company no problem but BB is not happy


Your first example getting up at 4am and finishings at 9am.
We can all make up examples to prove our point. What if you were called at 3.55am instead of 4am and worked until 9am? Or even just worked until 5am that’s one hour. You would be able to have the whole day off instead of only 3 hrs which you are only allowed to because your boss lets you rather than it being a right. On a busy day he might not let you.



The 3hrs your boss kindly allows you to have is actually paid whereas if BB was doing your example he would lose money.
In your one hour example 2300-2400 I wouldn’t expect you to take 11 hrs off either and I don’t when I am at working however if my company started to bully in the way BB is being bullied I would certainly use the threat and even the reality of taking 11 hrs off when I had only worked one




Anyway I would say that actually you have been working the entirety of your call, 24 hrs but we will have to disagree on that.


The point is as long as everyone is happy there is nothing to worry about. If you gain and hour here and there and then the company gain a couple elsewhere and so on but what if your company gets taken over and you get a new boss who just wants to shaft you, bleed you dry. Just like everyone else you will need a fall-back position and the only fall-back position you will have is the law, the WTR.


You see our experiences are very different. Mine I think resemble more BB’s than yours. My company wanted to double callout unnecessarily, there was no work to be done they wanted us there hanging on pegs just in case. They were open to negotiation as long as at the end of the negotiations callout was doubled, negotiation as far as the company was concerned was just a pantomime to be played out, the motions gone through before they get what they want. Then I told them I would be booking all my time on call as worked time and suddenly the extra callout disappeared.



I agree being called several short times in the night is in many ways worse than a long callout. I do that a lot and could easily have no sleep at all during the night because of a couple of short calls. Once again you are saying you would probably take the morning off. Why probably? Who decides? You, the boss, the workload on that particular day? Per the WTD you could probably take the whole day off no wonder the boss is keen to allow you three hours and accept your gratitude for being so generous.


You seem to be able to do what you want and get paid for doing it that’s not BB’s situation or indeed most peoples who have to work call. Usually only managers can do that


So if you have not read the WTD or WTR or any of the case law and I have read and studied it many times for several years I think we can agree that I know a lot more about it than you and have consistently proved so in our debates.



This is why I felt able to say “ you have not had reason to think about the situation” and why you were wrong to say to me “It sounds like you haven't thought about it...”


I was right when I said time spent at home watching telly or sleeping could be working time. I don’t think you knew this or about the case law.



BB’s question was about the WTD and that’s what I answered. He didn’t ask me to put my spin on it or you to put your spin on it which is why I gave him the facts


I suspect your company knows a lot more about the WTR than you or your clever union rep and they fear what might happen if they had to abide by the WTR once your rep starting pushing so they were happy to leave things as they were. Did you say you work a 1 in 4 callout? If so that would have to go if all hours counted as worked time and the company would have to employ more men to cover the call that you could no longer do or not have that cover at all



Strawmen? Don’t know that one. No not all regulation is good but it’s not all bad either. Personally I think it was a bad thing sending five year olds up 40 foot chimneys scraping soot of the walls with no protective work wear or face mask, sometimes they got stuck and died or fell and died or suffocated.



Luckily in 1840 the Chimney Sweep Act made the practice illegal but as no one enforced the Act ( a bit like the WTR) children were still sent up chimneys and still died. It took another 35 years before the practice was properly enforced. I hope we don’t have to wait that long for the WTR to be enforced properly





BTW don't take anything I say personally, it's just that I have spent a lot of time finding out the truth and understanding the WTD, its something I feel strongly about.

buggy_boy

Hey Guys,

Ok with your help I have managed to find a solution which basically stumps my employer. Ok so here is the argument.

I work 9-5, that is my normal working day. That means between the end of my day and the start of my next day I am entitled to 11hrs continuous sleep, regardless of oncall or not as WTD being law overides the fact im oncall.

Ok so this effectively means I cant get called out between 10pm and 4am as that would not allow me to have 11hrs sleep period. Employers should not be putting shift systems in place that would break WTD rest periods which is basically what they have done. This has been accepted in the past and flexibility has been given because we got paid for our sleep period, with the getting rid of paid for sleep, flexibility can go out the window.

The only way round this is for the employer as some have stated to have a shift rota, however after the number of redundancies there is no way this is practical and they would have to pay us an uplift to go onto a shift pattern.

This basically forces the companies hand making the status quo the best solution.

clairec79

I thought there was something in the WTD that said if the 11hour break could not be met (this may only apply to 24hour services though) that providing you had a 48hour break a fortnight it was ok for the 11hour ruling to be broken

BTW with my on calls I work 8.30-4, on call from 9 - 8.30, if I'm up I don't work the next day (or only work the balance and up to me when I fit that balance in - ie if I am called at 4am I'll likely just stay in work till 11ish, if I was called at 9 and home by 1am, I'll go in lunchtime) if I'm not called I work the 8.30-4.

zagfles

buggy_boy wrote: »

Hey Guys,

Ok with your help I have managed to find a solution which basically stumps my employer. Ok so here is the argument.

I work 9-5, that is my normal working day. That means between the end of my day and the start of my next day I am entitled to 11hrs continuous sleep, regardless of oncall or not as WTD being law overides the fact im oncall.

Ok so this effectively means I cant get called out between 10pm and 4am as that would not allow me to have 11hrs sleep period. Employers should not be putting shift systems in place that would break WTD rest periods which is basically what they have done. This has been accepted in the past and flexibility has been given because we got paid for our sleep period, with the getting rid of paid for sleep, flexibility can go out the window.

The only way round this is for the employer as some have stated to have a shift rota, however after the number of redundancies there is no way this is practical and they would have to pay us an uplift to go onto a shift pattern.

This basically forces the companies hand making the status quo the best solution.

Excellent - sounds good! Some managers do need educating that flexibility works both ways. You're flexible with the WTD and thy're flexible about paying you for rest periods.

zagfles

clairec79 wrote: »

I thought there was something in the WTD that said if the 11hour break could not be met (this may only apply to 24hour services though) that providing you had a 48hour break a fortnight it was ok for the 11hour ruling to be broken

BTW with my on calls I work 8.30-4, on call from 9 - 8.30, if I'm up I don't work the next day (or only work the balance and up to me when I fit that balance in - ie if I am called at 4am I'll likely just stay in work till 11ish, if I was called at 9 and home by 1am, I'll go in lunchtime) if I'm not called I work the 8.30-4.

There is something about "compensatory rest" in certain situations where there are exceptions to the mandatory 11 hours rest. But the 48 hours per fortnight is an additional requirement to the 11 hours between shifts.

We used to have to be careful about this when we worked weekend shifts - we only did 1 in 4 but we were always swapping shifts and rest days for our own benefit - so often ended up working well over 14 days without a day off, so getting lots of time off in addition to our leave. People used to build up rest days to take weeks off, effectively we could end up with 10+ weeks off a year which I used for major travelling in my youth.

But that all had to change when the WTD came in, HR were watching our timecards