4 ms·

That's not how European courts have been interpreting it. When they say "free consent" they do mean free as in beer, so a "consent or loose your job" provisions

That's not how European courts have been interpreting it. When they say "free consent" they do mean free as in beer, so a "consent or loose your job" provisions would almost certainly be thrown out.

octo888 1y ago
What job is being lost when you are applying for a new job? > That's not how European courts have been interpreting it Any particular relevant cases I can lookup?
- amiga386 1y ago
  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. https://www.acas.org.uk/working-time-rules/the-48-hour-weekly-maximum https://www.acas.org.uk/working-time-rules/the-48-hour-weekl... https://www.acas.org.uk/working-time-rules/jobs-with-different-working-time-rules 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/61123e81e90e0706d023d80a/Mrs_H_McMahon_v_Heron_Financial_Limited_-_3324837-2019-_Reserved_Judgment.pdf 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 https://www.legislation.gov.uk/ukpga/1996/18/section/101A
  - octo888 1y ago
    > 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
    - amiga386 1y ago
      > These CAN be altered by an employment contract: 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.
  - gambiting 1y ago
    >>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/the-48-hour-weekl... 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?
    - octo888 1y ago
      Exactly. Many CAN opt out of the 48 hour limit (and are forced to do so due to the employer-employee power imbalance) > Every UK job I have ever seen has the opt out clause in the contract Ditto.
- gampleman 1y ago
  https://www.edpb.europa.eu/system/files/2024-12/edpb_opinion_202428_ai-models_en.pdf https://www.edpb.europa.eu/system/files/2024-12/edpb_opinion... Is an example where GDPR consent is not considered free if the alternative is paying money. If you do not get a job, this seems fairly analogous.

That's not how European courts have been interpreting it. When they say "free consent" they do mean free as in beer, so a "consent or loose your job" provisions would almost certainly be thrown out.

octo888 1y ago

What job is being lost when you are applying for a new job? > That's not how European courts have been interpreting it Any particular relevant cases I can lookup?

amiga386 1y ago
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. https://www.acas.org.uk/working-time-rules/the-48-hour-weekly-maximum https://www.acas.org.uk/working-time-rules/the-48-hour-weekl... https://www.acas.org.uk/working-time-rules/jobs-with-different-working-time-rules 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/61123e81e90e0706d023d80a/Mrs_H_McMahon_v_Heron_Financial_Limited_-_3324837-2019-_Reserved_Judgment.pdf 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 https://www.legislation.gov.uk/ukpga/1996/18/section/101A
- octo888 1y ago
  > 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
  - amiga386 1y ago
    > These CAN be altered by an employment contract: 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.
- gambiting 1y ago
  >>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/the-48-hour-weekl... 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?
  - octo888 1y ago
    Exactly. Many CAN opt out of the 48 hour limit (and are forced to do so due to the employer-employee power imbalance) > Every UK job I have ever seen has the opt out clause in the contract Ditto.
gampleman 1y ago
https://www.edpb.europa.eu/system/files/2024-12/edpb_opinion_202428_ai-models_en.pdf https://www.edpb.europa.eu/system/files/2024-12/edpb_opinion... Is an example where GDPR consent is not considered free if the alternative is paying money. If you do not get a job, this seems fairly analogous.