Legal Action on Stoppages of Pay arising from the 2008 Stri

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30 July 2012
LTB 577/12 - Motion 55 Conference 2012: Legal Action on Stoppages of Pay arising from the 2008 Strike Action in Romec

No. 577/2012
Ref: PTC/RE/dj/MF
Date: 30 July 2012







TO ALL BRANCHES WITH ROMEC ENGINEERING MEMBERS





Dear Colleague



RE: Motion 55 Conference 2012: Legal Action on Stoppages of Pay arising from the 2008 Strike Action in Romec



Motion 55 carried at this year’s annual conference read as follows:



“This Conference agrees that the lack of progress on Motion 145 carried at Annual Conference 2011 is unacceptable and that a full report and what action will be taken by the Postal Executive will be provided to the Romec membership no later than 1st June 2012.



The Postal Executive is instructed accordingly.”



The report called for by the motion is attached to this LTB. Branches should feel free to circulate it to Romec members.



Any enquiries should be addressed to Ray Ellis’s department, quoting reference PTC/RE/dj/MF.
Email address: rellis@cwu.org



Yours sincerely






Ray Ellis,

Assistant Secretary




Motion 55 Conference 2012: Legal Action on Stoppages of Pay arising from the 2008 Strike Action in Romec





Background



The issue in dispute is the method of calculation of deduction of pay for a day of strike action.



Romec engineers are monthly paid. In previous disputes Romec had deducted pay for each day of strike action on the basis of the number of days in the month – so a one day strike in March would result in a deduction of 1/31st of monthly pay. A one day strike in April would produce a reduction of 1/30th.



Strike Action in 2008



Romec engineers were involved in strike action in September and October of 2008, in furtherance of a dispute about unagreed changes to attendance patterns, subsequently resolved in the 2008 Attendance & Modernisation Agreement. Strike action took place in September and October. In September salaries, pay was deducted by Romec on the standard basis previously adopted by the company, i.e. 1/30th of monthly basic pay for each day of strike action.



As the dispute continued, engineers were advised that Romec would not pay premium rate for additional hours performed on overtime during weeks in which industrial action had been taken, until the level of normal weekly conditioned hours had been met (i.e. if an engineer scheduled to attend 37.5 hours per week took a day’s strike action amounting to 7.5 hours, additional hours would not be paid at the premium overtime rate until the attendance in that week exceeded 37.5 hours).



In the talks which led to a resolution of the dispute the union made it clear that part of any resolution must be that engineers would be paid at the appropriate overtime rate for work outside normal hours, in the normal way. The Romec negotiators agreed that Romec would not seek to withhold overtime payments if an overall resolution to the dispute was achieved.



Nevertheless, when engineers received their October pay slips some (but not all) engineers who participated in official strike action found that they had not been paid the appropriate overtime rate for overtime worked, contrary to the understanding reached on concluding a negotiators agreement. Where engineers were not paid at the appropriate rate for overtime, payment at flat rate appeared to have been applied across the board, to weekend as well as week day overtime and to overtime which was worked outside the period in which industrial action took place.



Furthermore, it became clear that Romec had changed the basis on which deductions were made for strike action, without notification to CWU or to individual members of staff. Instead of making deductions from pay on the previous basis, Romec made the calculation for deduction of the strike action based on the hourly pay rate – so an engineer scheduled to attend for 7.5 hours was deducted at 7.5 hours pay, an engineer due to attend for 8 hours was deducted 8 hours pay and so on. The effect of this was to increase the amount of pay deducted for a 1 day stoppage. As well as applying this revised method of calculation to industrial action which took place in October, Romec made a further deduction in October salaries for industrial action which had taken place in September based on the difference between the old method of calculation used for the deduction made in the September salaries and the new method of calculation applied by Romec in October.



This was immediately challenged by the union on the basis that Romec had acted in breach of a clear understanding with the negotiators in respect of payment for overtime and furthermore had acted inconsistently; and that by changing the basis of calculation of the amount of pay to be stopped for its participation in strike action without notification had made an unlawful deduction.



Following these representations Romec agreed to restore payment at the appropriate premium rate for overtime. However, the company was not prepared to change its decision in respect of the unagreed and unnotified variation in the method used to calculate the deduction for periods of strike action.



Legal Action



The union received preliminary advice from Simpson Millar in November 2008 that in the absence of specific reference in the Contract of Employment to the method to be adopted for deduction from pay, by moving to deduction based on the hourly rate Romec was likely to be in breach of the Apportionment Act of 1870. Early in 2009 the union instructed Simpson & Millar to take legal action to seek to recover the excess deduction.



It was agreed between the solicitors acting for both parties that the legality of Romec’s actions would be contested by bringing a sample case and a claim was submitted based on pay slips supplied by Cyril Onyejekwe, the union’s then London Regional Representative.



No apparent progress with the claim was made for several months despite periodic urging with Simpson Millar, but early in 2011 it became clear that Cyril’s case did not provide a suitable basis on which to test the legal issue – in short, it was not clear to anyone on what basis the stoppages the periods of industrial action had been made from Cyril’s pay – the amount deducted did not seem to relate to either the “old” or “new” method of deduction.



In June 2011 the union’s then North West Regional Romec Representative, Bill Broomhead, provided his pay slips to union head office. These did reflect clearly the different methods for calculation adopted by the company in September and October and were forwarded to Simpson Millar.



At the time of writing we are advised that papers are with counsel to draft particulars of claim and Simpson Miller hope to issue proceedings in August.

Branches will be advised when proceedings have commenced.