Firstly, the WTD makes mandatory a number of things that cannot be opted out from. The only thing opt-outable is the maximum of 48 hours work per week on average, and it is left to member states to legislate how that opt-out works (should they choose to have the opt-out at all).
In the UK, to pick a specific example, it is a combination of some workers not being allowed a choice of opt-out (e.g. healthcare workers, self-employed, "gig workers"), some union workers derogating that right to their unions collective bargaining... but for every other worker, the 48 hours is the law. You cannot mandate it in a contract. You can't advertise a job where you set the hours and those hours are on average over 48 hours per week. It's not a valid job and you are immediately in breach of statutory law.
You'll have to look at member states cases, it's on them to define how the opt-out works.
One example: https://assets.publishing.service.gov.uk/media/61123e81e90e0... "In respect of the 48 hour week the claimant had not signed an opt out and as such if the claimant was working in excess of 48 hours average across
the week then her right was being infringed. It is not in dispute that this is a statutory right capable of protection."
>>You can't advertise a job where you set the hours and those hours are on average over 48 hours per week. It's not a valid job and you are immediately in breach of statutory law.
Every UK job I have ever seen has the opt out clause in the contract. And they always say "well you can just tell us and we'll remove it" but it's there by default, and they make it clear that they have 800 other applicants for every position so do you really want to risk it?
> the WTD makes mandatory a number of things that cannot be opted out from
Let's stop cherry picking. These CAN be altered by an employment contract:
> the 20-minute rest break for those who expect to work more than 6 hours in a day
> the daily rest of 11 hours in 24 hours
> the weekly rest of 24 hours in every 7 days or 48 hours in every 14 days
> the 17-week reference period for night work
> the average hours for night workers working with special hazards
> The reference period for working out the 48-hour average maximum working week can be changed from 17 weeks to 52 weeks
This is exactly my issue with these big EU directives and regulations. The EU gets massive press about the headline issue, and the nuance, opt-outs etc get swept under the rug
They CANNOT in a regular employment contract UNLESS it can be justified that the job specifically needs it. Even when employer is justified, the rest entitlement still exists and must be compensated for, and the employer requires appropriate justification if they cannot give that compensatory rest. And if they put themselves in this situation (where employees go beyond normal working time limits), they need to keep good records of time they did make their employees work, so they can confirm they haven't broken the law to the HSE when it comes knocking.
In the UK, to pick a specific example, it is a combination of some workers not being allowed a choice of opt-out (e.g. healthcare workers, self-employed, "gig workers"), some union workers derogating that right to their unions collective bargaining... but for every other worker, the 48 hours is the law. You cannot mandate it in a contract. You can't advertise a job where you set the hours and those hours are on average over 48 hours per week. It's not a valid job and you are immediately in breach of statutory law.
https://www.acas.org.uk/working-time-rules/the-48-hour-weekl...
https://www.acas.org.uk/working-time-rules/jobs-with-differe...
> Any particular relevant cases I can lookup?
You'll have to look at member states cases, it's on them to define how the opt-out works.
One example: https://assets.publishing.service.gov.uk/media/61123e81e90e0... "In respect of the 48 hour week the claimant had not signed an opt out and as such if the claimant was working in excess of 48 hours average across the week then her right was being infringed. It is not in dispute that this is a statutory right capable of protection."
UK's Employment Rights Act 1996 section 101A: https://www.legislation.gov.uk/ukpga/1996/18/section/101A