LTB 64/15 HOLIDAY PAY - EUROPEAN WORKING TIME DIRECTIVE

[TrueBlueTerrier]

No. 64 /15


To: All Branches with Postal Members


Dear Colleague,

HOLIDAY PAY - EUROPEAN WORKING TIME DIRECTIVE

The purpose of this LTB is to advise Branches of recent developments on the above mentioned subject.

Firstly, we have attached to this LTB a draft copy of a letter, which is being sent to members’ home addresses as an insert in the Voice.

The letter provides a comprehensive overview of the current situation and also advises members that although the Union is pursuing this matter with the employer on their behalf, this does not prejudice their right to take their own course of action. However, the union will not be able to provide legal advice to individuals who wish to pursue this matter themselves.

Secondly, following a recent meeting with Royal Mail Group the latest position is that our respective lawyers are now in discussion on finalising Employment Tribunal test cases to protect the legal position of CWU members.

Please ensure that all representatives and members are aware of these developments and we would encourage Branches to also take a proactive approach by circulating the letter in workplaces in advance of the publication of the Voice insert.

Finally, a similar letter will be provided to other CWU members who are not directly employed by the Royal Mail Group.

Any enquiries on the above LTB should be addressed to the DGS (P) Department.

Yours sincerely

Dave Ward
Deputy General Secretary (P)

[TrueBlueTerrier]

Dear Colleague,

You may be aware of the recent media attention given to the subject of holiday pay, as a result
of legal cases in the Employment Appeal Tribunal.

The purpose of this letter is to explain the background to this issue, how it may affect you as a
CWU member and what the union is doing to protect your position as the legal situation develops.
Background

The default position for most employers in the UK has been to pay only basic salary when an
employee is on annual leave and not to include overtime or other payments. The recent tribunal
cases in non CWU companies cast doubt over the legality of this position under the European
Working Time Directive.

As you will know, the CWU has already negotiated agreements which mean that employees within
the Royal Mail Group receive Scheduled Attendance overtime as part of holiday pay – last year
this agreement was enhanced to include Bank holidays. With the recent Tribunal cases we have
been monitoring developments and taking advice from our lawyers about the implications of the
judgments in relation to other payments employees receive.

The recent decisions of the Employment Appeal Tribunal

The cases which attracted media attention last November ruled that overtime, that an employer
is under no obligation to provide, but which an employee must work under their contract if it is
offered, has to be included within holiday pay. This relates to what we would term ‘compulsory
overtime’.

In reaching this decision, the judge did not make any ruling on purely voluntary overtime, which
is the type of overtime that is typically worked within the Royal Mail Group. However, the advice
from our lawyers is that while there is still a grey area here, there is good reason to believe that
voluntary overtime that has been regularly worked should be paid on leave. It is important to
note that this has not yet been directly tested in the courts.

If this is confirmed in subsequent rulings, this would mean that Royal Mail would need to change
entitlements to holiday pay going forward and that employees may have backdated claims for
unlawful deductions from their holiday pay in the past. However, the judge in the Employment
Appeal Tribunal made an important ruling on backdated claims that may limit how far back a
claim for unlawful deductions from holiday pay can go.

Next steps

While there remains some uncertainty over the legal position in relation to voluntary overtime,
we are keen to progress the issue and we have entered discussions with the Royal Mail Group
to try to reach an agreement or find a way forward that caters for voluntary overtime being
included in holiday pay. We are also assessing the legal position in relation to other payments
and allowances employees receive with our lawyers.

If we are unable to reach a quick negotiated settlement with the company there are two options
we intend to pursue to protect your position. Firstly, the union and the company could agree to
a number of test cases to give both sides clarity on the law. Secondly, we could pursue the matter
legally by making a group claim on behalf of all CWU members against the employer.

The legal developments outlined in this letter affect companies across the country and there
are a large number of legal cases pending. Resolving the issue with the Royal Mail Group could
therefore take some time, because any new cases would be put on hold by the courts until the
live cases have been resolved. We will, of course, look at ways of speeding up this process.
You should be aware that these legal developments could have significant financial implications
for the company. At the moment, with the legal uncertainty, we do not have an understanding
of what the financial impact might be. For their part, Royal Mail have indicated that there would
be affordability issues and that they would look at any additional costs arising from this in the
context of overall pay bargaining.

Keeping you informed

As discussions with Royal Mail continue, we will let you know the progress that we make in
reaching a settlement. It is important to note that the discussions that the union is having with
the company – and any agreement that we may reach – do not prejudice your right to pursue
a claim as an individual should you wish to do so. However, given the number of members across
the CWU who may be affected by the legal developments, the union will not be in a position to
provide legal support to individuals who want to make a claim themselves.

We will keep you informed of developments.

Yours sincerely,
Dave Ward
Deputy General Secretary (Postal)

[fishtank]

For their part, Royal Mail have indicated that there would be affordability issues and that they would look at any additional costs arising from this in the context of overall pay bargaining.

So basically we'll be paying for the company's inability to stay within the law, not the government who trousered the profits for all these years or the directors and senior managers who walked away with overblown salaries and profit related bonuses but us.
Makes you sick really, should the union be accepting that position?

[A2B]

For their part, Royal Mail have indicated that there would be affordability issues and that they would look at any additional costs arising from this in the context of overall pay bargaining.

So basically we'll be paying for the company's inability to stay within the law, not the government who trousered the profits for all these years or the directors and senior managers who walked away with overblown salaries and profit related bonuses but us.
Makes you sick really, should the union be accepting that position?

I know i will be in the minority here but i can't see why any company should have to pay out extra holiday money for voluntary overtime!

[TrueBlueTerrier]

For their part, Royal Mail have indicated that there would be affordability issues and that they would look at any additional costs arising from this in the context of overall pay bargaining.

So basically we'll be paying for the company's inability to stay within the law, not the government who trousered the profits for all these years or the directors and senior managers who walked away with overblown salaries and profit related bonuses but us.
Makes you sick really, should the union be accepting that position?

I know i will be in the minority here but i can't see why any company should have to pay out extra holiday money for voluntary overtime!

Perhaps the law that's being tested would be the reason why. I don't agree with speed limits on Motorways, but I still have to abide by them.

[clashcityrocker]

I know i will be in the minority here but i can't see why any company should have to pay out extra holiday money for voluntary overtime!

I think because although the overtime is voluntary, the work is still there to be done.
Nobody gets paid overtime for doing nothing. (Not outside of RM in the real world anyway)
If the work wasn't covered on overtime somebody would have to be employed and they would be entitled to paid holidays.

It stops unscrupulous employees using p/t contracts knowing full well overtime will be needed to complete the work but classifying it as "voluntary".
This was surely the point with 1 hour contracts.

Now RM has moved to this "flexing up" model, it is clear that the work in a DO will only be completed by overtime when traffic is above model week.

[A2B]

On the other side of the coin if people stopped constantly doing overtime perhaps more people would be employed and offices properly staffed?

[Chelseablue]

Imagine if there was a no overtime week rm would be on it's knees ,

[aiden01]

On the other side of the coin if people stopped constantly doing overtime perhaps more people would be employed and offices properly staffed?

people do the ot because they need the money not for the love of rm.

[A2B]

On the other side of the coin if people stopped constantly doing overtime perhaps more people would be employed and offices properly staffed?

people do the ot because they need the money not for the love of rm.

Some genuinely need the money i agree, but there's a big difference in getting enough to pay the bills and enough to finance a lifestyle which would be unsustainable without overtime.

[Mr_Pink]

On the other side of the coin if people stopped constantly doing overtime perhaps more people would be employed and offices properly staffed?

people do the ot because they need the money not for the love of rm.

Some genuinely need the money i agree, but there's a big difference in getting enough to pay the bills and enough to finance a lifestyle which would be unsustainable without overtime.

What about those on 20/24 (or even 10!) hour contracts, that need the OT to earn a living wage? We all know that most offices would grind to a halt if no one did OT, why aren't the union looking into the amount of OT being paid in offices, yet another agreement (6 monthly review of hours worked) being ridden over roughshod by RM.

[Chelseablue]

Spot on mr pink