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07 Dec 2016, 16:00
Apologies if this has already been discussed to death on this forum, but I wondered if anyone has taken the company to court over salary paid during annual leave. At present, I'm paid my contract hours during annual leave, but nothing more. ACAS have advised me that there is a EU directive stating that companies should base annual leave pay upon the hours worked during the 12 weeks leading up to each annual leave period, and not just pay the contract hours. I'm on a 24-hour contract, but work around 35-39 hours per week, for example.
I filed a grievance (stage 1: Had a meeting and was told something would happen to conclude the matter, but didn't hear anything after that), then a stage 2 (I waited 7 months for a reply after the initial meeting, but gave up), then a stage 3 grievance (this was also ignored). At this stage, enough was enough for me, and I said to my manager that I wouldn't come in until I had heard back about it. It took only 2 days for somebody to come in and see me face-to-face. Funny that!
Unfortunately, they told me there was nothing else they could do, so I went through the ACAS process. Yesterday, though, ACAS let me know that RM won't be doing anything, so they've given me a certificate to take to a solicitor, if I decide to take the case further.
My question to you all is, have any of you gone through this process, and is it worth persevering with, or would I simply be continuing to bash my head against a brick wall?
Any advice would be much-appreciated! :)
07 Dec 2016, 17:14
Hiya pal royal mail have our hands tied I work 60 hours a week and ive been here 6 years stuck on a 30 hour contract , the union agreed that hours to be reviewed every 6 months four years ago now and they don't do anything about it
pissing in the wind crap union who just look after there full timers
07 Dec 2016, 18:03
I'd say carry on. You have come this far, why give up. Maybe you are the one that will get something done. Even Royal Mail has to obey the law.
07 Dec 2016, 18:39
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07 Dec 2016, 18:58
bigal383 wrote:Hiya pal royal mail have our hands tied I work 60 hours a week and ive been here 6 years stuck on a 30 hour contract , the union agreed that hours to be reviewed every 6 months four years ago now and they don't do anything about it
pissing in the wind crap union who just look after there full timers
This would not happen in our office,You would be made up to full time.
Many lads in our place were doing just the same as you,Royal mail cannot deny that you are needed to work full time hours.
Our union rep took it to the Area rep who managed to make up 3 part timers to full time,They want the work filled by part timers but if fought hard enough you will get what you want,Dont lie down.
07 Dec 2016, 19:00
Q. Commonplace overtime working - In a similar vein, will someone who regularly works overtime be entitled to average pay, whether or not it is a contractual requirement to undertake O/T?
A. Assuming this question relates to voluntary overtime (overtime which an employer is not obliged to offer and the employee is not obliged to work), the answer is somewhat less clear as it was not dealt with in Bear Scotland. However, it is possible that Tribunals will determine that voluntary overtime forms part of a worker’s “normal remuneration” if a settled pattern has developed over a sufficient period of time to justify this.
This was the conclusion of the employment judge in the GB tribunal case of Neal v Freightliner, where the worker was not contractually obliged to work overtime but the employment judge indicated that the fact that Mr Neal might have volunteered to perform tasks outside his contractual hours did not mean that his performance was no longer "intrinsically linked" for the purposes of the "normal remuneration" test.
Also the Tribunal at first instance in Bear Scotland found that the fact that, in theory, workers could refuse overtime did not mean that the pay was any less intrinsically linked to the performance of the tasks set out in the contracts and therefore should be included in the calculation of statutory holiday pay. Unfortunately, on appeal the EAT did not comment on this finding but appeared to accept that compulsion is not necessary for there to be an "intrinsic link".
Finally, in Patterson v Castlereagh Borough Council, the Northern Ireland Court of Appeal held that there is no reason, in principle, why voluntary overtime should not be included in the calculation of statutory annual leave. It will be a question of fact for the Tribunal whether voluntary overtime should count as normal remuneration in a particular case.
Therefore, in our view future cases on the inclusion of voluntary overtime in holiday pay are inevitable, especially as voluntary overtime is much more common in many sectors than compulsory or non-guaranteed overtime.
07 Dec 2016, 20:14
Hi your part time to full time is regular enough for you to be full time. Take this as far as you can.
Myself and a couple others members on this forum threatened to take to tribunal having got acas involved then we were made up to full time.
Go all the way you've got nothing to lose.
They're breaking employment law
08 Dec 2016, 18:13
madmax1 wrote:The problem has always been (and continues to be) that the rulings/law only applies to o/t that an employee is 'required' to do as part of their job. Voluntary o/t doesn't count. No matter how long you've been doing o/t for or how regularly, RM have a simple get out that all o/t is voluntary. If RM had any sort of moral compass it would acknowledge that the company wouldn't operate without the goodwill of it's employees doing regular o/t. Unfortunately, RM don't seem to have a moral compass.
Of course it's our own fault because we as a body of workers could collectively refuse to work o/t until they cough up and grind the company to a halt in a week. But that is never going to happen, as RM well know. Hence the situation carries on. A concerted effort by the union could work too, but that isn't going to happen either
What if your duty cannot be completed in your hrs, the duty therefore 'requires' overtime hrs to complete, whether the duty holder opts to do them or not? Like you say, tricky.
08 Dec 2016, 19:29
The issue of voluntary overtime is rubbish.
If it's deemed regular enough you deserve holiday pay for it
08 Dec 2016, 19:33
Thanks for all the feedback guys. I agree entirely; Its shameful how they're treating us.
To let you know, they offered me a 30-hour contract over 5 days (I'm a reserve, but usually do the same round, which not many others want to do), but I countered and ended up agreeing a 24-hour contract over 4 days with them, to give me some leeway regarding having an extra day off if I need it (I have Crohn's disease, and the job can be incredibly draining for the disease every once in a while).
I'll contact a few local solicitors and let you know how I get in, as and when I know more!
08 Dec 2016, 20:33
Holiday Pay to Reflect actual hours worked *READ HERE*viewtopic.php?f=1&t=76606
08 Dec 2016, 22:21
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09 Dec 2016, 08:35
This is a complex issue and the CWU are and have been pushing this and it is part of the discussions which are going on now.
The court ruling was guaranteed overtime should be paid when individuals go on holiday.
The only guaranteed overtime in Royal Mail is scheduled attendance and this has been paid when individuals go on annual Leave for some time.
Voluntary overtime was defined within that ruling as overtime which the employer does not have to offer and the employee does not have to work. Under the Dignity and Respect agreement and others overtime is voluntary.
However the union are pushing for payment for part timers who work against the same duty or same hours each week to be paid when on holiday. In fact over 2000 part timers have seen their contracts increased to reflect the hours they have worked this year in line with the Agenda for Growth Agreement.
Royal Mail have also stated that if they were to concede paying all voluntary overtime worked by part timers it would run into millions. They also argue that the majority of that overtime paid is against absence and vacancies of which they already pay sick leave , the hours for covering overtime and now we are arguing for this hourage to be paid whilst on annual leave.
PSP does not detail what work a part timer is working on so it is a massive piece of work is it their duty , is it a reserve duty covering sick , Annual leave , is it covering absence etc
Additionally what is the reference period for the payment ? Royal Mail pay less overtime in the summer so what is the reference period we want ?
Over recent months there have been two further tribunal cases which have been successful but are subject to appeal the first was whitehead v EMH housing regarding call out and standby overtime and the second was White v Dudley Metropolitan Brough council also regarding standby and call out overtime.
No big employer has as yet paid out on voluntary overtime. The big case regarding voluntary overtime is still to come to court !
So is the union doing something yes ! Is it easy no ! Does the employee want to concede no ? All the employment law specialists do not recommend going to tribunal over voluntary overtime until the forthcoming case is heard.
Hopefully this is explains the background!
09 Dec 2016, 08:56
It might explain the issue but doesn't explain the complete lack of relevant up to date official communication by the Communication Workers Union.
09 Dec 2016, 15:45
I'll begin by stating I'm in favour of unions. I think they are the background, usually, of democratic negotiations and operations.
However, having been a nurse before this job, I feel confident in saying I've never heard so much tosh from the CWU. The rep for our office (I know I can only go on my own experience here) has done nothing but fob me off with lies, in order to get rid of me as quickly as possible.
I've heard that negotiations are taking place, but I don't believe it for one second.
09 Dec 2016, 18:24
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09 Dec 2016, 19:44
The CWU are trying to get the payment but they do not have a magic wand.
Remember for every hour a part timer receive in overtime they also receive hours more of the delivery supplement within the overall hourly rate of pay.
It would be so easy for me or anyontfer union person to say we are going to get all overtime paid to holiday pay but it would not be the truth.
Fish you are correct t whilst I think we the comms department has improved greatly but the letter to members but I do not think the information on what has been agreed to talk about regardig pay pensions and change has been communicated.
Frankly I am get tired of being criticised for giving info? Hence why I post less and less ! The wired thing I argue more for most of things I am criticised to both senior management and senior union officials
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