holiday pay based on previous hours?

[cheshirecheese]

Also even a guy on a 1 hour contract the o/t is voluntary?

[fishtank]

Also even a guy on a 1 hour contract the o/t is voluntary?

No.
The premiss works like this....there is no way that RM could stand up in court and argue that the 1hr contract reflected the job the member was employed to do therefore a certain number of hours above and beyond that were necessary and expected to complete his job description.

You cannot really use that argument if you have a 30hr contract and have a normal job description that can be done in 30hrs. It would only work if the extra hours were compulsory or contractual but most contractual overtime(like SA) pays out during holidays anyway.

[albebb]

how is
http://www.mishcon.com/news/briefings/s ... al_10_2013" onclick="window.open(this.href);return false;
different to royal mail.
why did he win an ET but we wouldn't?

[fishtank]

how is
http://www.mishcon.com/news/briefings/s ... al_10_2013" onclick="window.open(this.href);return false;
different to royal mail.
why did he win an ET but we wouldn't?

His contract required him to work varying shifts

the extended hours were the hours he was required to work.

a worker’s normal remuneration and should take into account payments which are ‘intrinsically linked’ to the performance of the tasks which the worker is required to carry out under his or her contract of employment.

Basically he had no choice but to work those hours. His overtime was for all intents and purposes contractual.

[albebb]

This was the case even though the overtime and shift premiums were not guaranteed, and were effectively voluntary.

[fishtank]

This was the case even though the overtime and shift premiums were not guaranteed, and were effectively voluntary.

I'll try to keep it simple, It's an ET judgement based on the entire weight of evidence, The bulk of Mr Neal's case rested on the fact that due to the shift patterns he was contractually obliged to work the overtime was unavoidable, not contractually compulsory but necessary to fulfil his contractual obligations.

If you could show the same obligation was required at Royal Mail you would have a case but you can't because they have a system in place that allows you to work your contracted hours only....the overrunning deliveries procedure.

What you have to understand is that ET judgements are not laws set in stone but are constantly shifting, open to interpretation and each new case can move the goalposts again. What you have to do when you approach an ET is make sure your case is at least as strong as the benchmark case and in our case it's nowhere near the mark.

[albebb]

getting closer ,maybe
http://euobserver.com/news/124232" onclick="window.open(this.href);return false;

[Carlito]

Just read through this I am on a 30 hour contract but been do 40+ hours every week for the last 3 years will I be able to claim more than my 30 hours pay when i take annual leave?
I've already had a week off in April and only got 30 hours pay but got another one coming up in June.
Any help or advise would be great.
Thanks

[new2me]

Just read through this I am on a 30 hour contract but been do 40+ hours every week for the last 3 years will I be able to claim more than my 30 hours pay when i take annual leave?

No.

My initial question was based on me receiving unexpected overtime pay for a week I was on annual leave. I thought I had previously read on the forum that our holiday pay is based on an average of hours in the preceding 6 or 10 weeks, but it is not. 30 hours per week annual leave, is all we're entitled to on a 30 hour contract.

[albebb]

sorry if some of the articles i have linked have confused the issue , just wanting to show that the law is slowly heading slightly closer to getting an average o/t payment whilst on a/l ,but atm royal staff don't get anything like an average of overtime whilst on a/l.
but regarding working 40 hours every week for 3 years whilst on a 30 hour contract , you should request your contract be upped to full time as under the new agreement

2.7.7 The level of part time Employees’ contracted hours will be reviewed by the Employer and the CWU locally on a six monthly basis. Where appropriate,
increased contracted hours will be offered to reflect the hours actually worked and planned.

[cheshirecheese]

To:  All Branches with Postal Members
 

 

 

 

Dear Colleague
 

WORKING TIME DIRECTIVE – HOLIDAY PAY
 

In recent months the Union has been monitoring the developing legal situation on how holiday pay should be calculated in line with the Working Time Directive.
 

This involves three very significant Employment Tribunal cases in non CWU companies which have cast doubt over how an employer is required to calculate holiday pay under the European Working Time Directive.  A previous decision that has stood since 2004, held that adhoc overtime did not need to be included in the calculation.  However, this has now been contradicted both directly and indirectly in recent cases and the ET decisions in the three aforementioned cases have ruled that ad hoc overtime should now be included. 
 

Although these ET decisions are not yet binding, the legal advice received from our lawyers suggests that ultimately, this is likely, though not certain, to be confirmed as the correct interpretation of this particular Working Time Directive.
 

These decisions could have very significant implications and may mean that for any holiday taken since 1998, current Royal Mail employees may have a legitimate legal claim against the company to up to four weeks worth of overtime payments (the directive only covers a four week holiday period) each year.  A further issue that needs to be resolved legally is what reference period should be used for how any entitlement should be calculated. 
 

As you can imagine employers across the UK have been strongly lobbying against this interpretation of the directive and the CBI are claiming that this would have a major detrimental effect on the ability of British companies to remain competitive. 
 

 

The current position is that two of these recent ET decisions are being appealed against by employers and these appeals are pending.  Additionally, a third case brought by a transport employee has been settled outside of the tribunal and we are trying to establish the basis of this settlement.
 

The whole subject matter is a very live issue and we can confirm that CWU has now lodged a formal claim for both future entitlements and back pay with the Royal Mail Group on behalf of all CWU members working for the company.
 

Following initial discussions with Royal Mail under the auspices of Bobby Weatherall PEC Member, who has been diligently following developments for the Union, we have now arranged a meeting with the company’s senior management team to discuss the basis of our claim and try to reach a settlement.  Additionally, we are continuing to discuss with our lawyers the best way to protect the legal position of CWU Members, if necessary through the Employment Tribunal.
 

Further information will be sent out in the near future following our next meeting with the company.  In the meantime, it is important that all CWU branches and representatives circulate the content of this LTB and convey the Union’s position to our members in all work places.
 

Any enquiries on the content of this LTB should be addressed to the DGS(P) Department, quoting reference 60000.
 

Yours sincerely                                                 
 

                                       
Dave Ward                                                
Deputy General Secretary (P)