Hoping average holiday pay is imminent

[HTPostman]

It’s going to be very interesting over the coming weeks.

On a related note I spoke to the local Hermes driver, Hermes pay average hours worked (I don’t think it went as far as court). In return the drivers, in his unit at least, now get 12p a parcel less to pay for it. I wonder if RM will try something similar and downgrade one of our conditions (the supplement perhaps) to start paying for it all.

Interesting times indeed. Meanwhile management here are waving 10 while 5 contracts in our face saying sign it and you’ll get 35 hours when you’re on holiday. When I said it’s going to court and will hopefully be decided in the workers favour anyway she looked confused. Either clueless or deluded.

[1996Fiesta]

i honestly don't understand why it's been going on all these years, from acas website

Overtime, commission and bonus
If you regularly get paid overtime, commission or bonuses, your employer must include these payments in at least 4 weeks of your paid holiday.

I don't understand that. It's either paid holiday or not. If it said 'that must be reflected in paid holiday' that might make sense.

I asked my manager for time off and for him to treat it as paid holiday (I have very low contracted hours but do overtime that takes me up to full time hours, and have maintained this arrangement for over 80% of the time I've been with royal mail)

He said I can take the time off, (guess he can't object as it's overtime anyway) but as there is no provision for me to have it booked as paid holiday (as my holiday allowance is only a couple of days a year) it won't be considered holiday, just a cessation in overtime.

[yellowbelly]

CWU Leeds no 1 did a youtube interview yesterday where Dave Wilshire gave an update as to where we are with the ACAS claim,
the relevant part starts just after the 1 hour mark:

https://www.youtube.com/watch?v=iKmptVMdmyc

[Dexydog]

Watched this at the relevant part.
Basically this issue has been ongoing for 7 years.
Lots of argy bargy.
Hearing date is set for 21st June.
RM s**t their pants as date gets closer and come back to negotiating table.
Union agree a rubbish deal which will be announced as ground breaking on the 20th June. (or the 10th/11th hour, he couldn't decide which it was).
End result, we all get shafted out of money we've been owed for years.
Top job.

[POSTMAN]

Feb 2020

Many employers are still not getting their holiday pay calculations right, but are they to blame? Ashleigh Webber looks at recent case law and whether enough is being done to help employers pay staff what they are owed.

Over the past decade, four significant rulings have clouded the issues surrounding the calculations behind holiday pay.

In the first case, Bear Scotland v Fulton, the Employment Appeal Tribunal ruled that any overtime an employee is obliged to perform must be included in holiday pay calculations. Then, in Lock v British Gas in 2016, the Court of Appeal determined that holiday pay must include any results-based commission.

To complicate matters further, the Employment Appeals Tribunal last year said employers should include voluntary overtime shifts in workers’ holiday pay if they were regular enough, while a fourth case – The Harpur Trust v Brazel – clarified that holiday pay should not be pro-rated for staff who work only part of the year.

But despite the profile given to each of the cases, especially Bear Scotland which attracted significant attention in the national media, some employers are still getting their calculations wrong and potentially breaking the law.

According to XpertHR’s 2019 Annual Leave survey, most employers are calculating holiday pay solely on basic pay.

Its survey of 362 organisations found 21% did not include commission payments in their employees’ holiday pay and had no plans to include it.

Only 6.6% included commission in their holiday payments, while 1.7% did not currently include it, but planned to do so.

The remainder (70.7% of employers) answered “not applicable” – it can be assumed that these employers do not pay commission at all, so would not be able to include it in annual leave payments.

“It does continue to be a problem – employers still don’t seem to be following the law,” Unison legal officer Shantha David, who supported Mr Lock in his case against British Gas, tells Personnel Today.

Old link but still relevant, with links to various court cases, read more here...
https://www.personneltoday.com/hr/holid ... -it-wrong/

[Dexydog]

It's complicated, for sure.
Any employer, though, who obfuscates an issue as important as this to basically get round what is law, just shows their contempt for its' workers.
Especially when it's absolutely deliberate, as shown by part-time contracts with obvious and foreseen overtime expected to be carried out.
It makes my blood boil, just do what's right for God's sake.

[rogersh]

CWU Leeds no 1 did a youtube interview yesterday where Dave Wilshire gave an update as to where we are with the ACAS claim,
the relevant part starts just after the 1 hour mark:

https://www.youtube.com/watch?v=iKmptVMdmyc

Thanks for the link in which the overview by Dave Wilshire indicates an agreement may be reached before the ten day employment tribunal on the 21st June.
If agreement is reached it then has to be supported by the PEC & then endorsed by ballot of the members. So only 4 & half weeks to complete this process!!
Does this mean if agreement is reached the tribunal is cancelled?

It was also stated "...going to the tribunal & taking our chances" & even if the tribunal ruling sided with claimants a year ago, when the pre hearing was originally due, then an agreement would still have to be reached following that outcome.

[Blaine]

Looking forward to this, RM owe me £3-4k. There's nothing more frustrating than working your bollox off earning 700-900 for 48 weeks of the year and dropping to 300 for the other 4 just because the contract has 27.5 hours in it, not even worked 27.5 since the day I started! My manager gave me full time hours at a minimum and I always do early/late/day off etc.

Th next issue is sick pay... Need fairness on that too.

[Murdoch]

I'm no lawyer, but that's has to be the easiest court case to win ever, almost every DO in the land is completely reliant on OT to meet the terms of USO

Not on paper.
Not according to the IWT.
Not according to the Delivery Forecast Tool.

What you have to understand is that

1. The Tribunal default position is where possible to side with the employer.

2. They are not interested in visiting delivery offices to see the reality of the situation, they will rely on the information presented before them.

3. They only need to win once.

Apologies for the delayed reply, but thought this was worth a lengthy reply.

Well yes on Paper. On the Payslips of every single person within Royal Mail that regularly performs overtime. I mean, if you can't make an argument against the inaccuracy (or irrelevance) of those tools, when compared to the real world empirical data. Then you deserve to lose the tribunal. Lets break it down into some examples:

A person is contracted for 35 hours is a duty holder for a FT 38 hour round, performs regular 3 hours OT a week, with fairly regular OT above this due to "pressure". That person has asked for a temporary variation of contract on multiple occasions, both personally and via the union, and has written proof of that being rejected on multiple occasions. That regular OT has never been taken into consideration for Holiday Pay calculations.

Another good piece of paper, would be the daily "pressure overtime sheet" alongside the time-sheets, it's full to the brim on a daily basis with people regularly performing OT. The fact it's put out daily in itself is clear evidence, that there's nothing unforeseen or exceptional about the OT.

Another example, 25 hour reserves on 5 days a week contracts. We don't have a single duty in our office that matches those contractual hours. I could give you evidence of regular OT being performed going back years. All written daily on OT sheets, Rotas going back years, with reserves regularly covering Duties which makes them "by default" work above their contracted hours. Time-sheets that show the duty and the start and finish times.

Again, I know first hand of multiple examples of people on those contracts, demonstrating to managers, and area managers that they continually work beyond their contracts, and have been rejected for temporary variation of contracts. But regardless, even if the person doesn't ask for a variation of contract, they're still clearly working regular overtime.

Another great piece of paper, would be the agreement Royal Mail have already reached with the Unite union. They have already agreed to include regular OT that Managers perform in their holiday pay calculations. So, that discrepancy between managers and employees would be part a key part of my argument. Why is one deemed "regular" and the other is not?

Another area I would like to explore that would be particular to Royal Mail. Would be given that the "average holiday pay" calculation is now based on 52 weeks reference. Shouldn't the increased hours due to the variation of contracts that occur on a routine basis over the xmas period, not be included in holiday pay calculations. It's standard practice to bump all the PT people in my office to either 35 or 38 hours. But these increased hours are never taken into consideration when paying annual leave throughout the rest of the year. Given that annual leave is largely not allowed during "peak", it seems to me, this is another discrepancy.

1. Where are you getting that idea from? There have been countless tribunals that have went against the employer, surely the judgement is made on "the information presented before them" and not just on bias as you suggest. That's why we're having this discussion in the first place, RM aren't abiding by the case law, either by changing their working practices so that OT isn't regular, or by including OT in holiday pay calculations.

2. They don't need to visit a DO, why would they. I'm saying it's extremely easy to show real world patterns of regularly performed OT. And literally thousands of examples.

3. The key point given the previous rulings, is whether or not Overtime is "regular" or "exceptional and unforeseen" within Royal Mail. Like I said, I think it's easy to prove that it's regular. But there is no doubt that Royal Mail employ good Lawyers, and may well find a loophole, which gets them out having to stump up the monies owed to all the pending claims etc.

With that said, the case law is clear, if you perform regular OT this should be included in holiday pay calculations. So I disagree that they only need to win once, they need to abide by the law, or going forward anybody that regularly performs Overtime can make a claim as before.

I cannot envisage in any way shape of form, that Royal Mail get a ruling that states nobody they employ has performed regular overtime, or nobody in future will perform regular overtime, and they are somehow exempt from including overtime in holiday pay calculations. But I mean, if they pull that off, then all credit to them.

EDIT: Also, there's a separate tribunals in Scotland & NI.

[rubberbond]

I quite agree with your reply to the points raised, they pay S/A when you’re on leave , so they can do it when they want ! I know it’s contracted but other than that , I can’t see what difference it makes, the place runs on overtime It can’t operate without it.

[Woody Guthrie]

One of the major issues is that the legislation brought in by the UK to comply with the EU directive (The Working Time Regulations 1998) contradicts the EU regulations in the basic definition of a week’s pay and is focused on basic pay.

So the basic starting point is contradictory which is why so many cases ended up at the ECJ.

[Murdoch]

One of the major issues is that the legislation brought in by the UK to comply with the EU directive (The Working Time Regulations 1998) contradicts the EU regulations in the basic definition of a week’s pay and is focused on basic pay.

So the basic starting point is contradictory which is why so many cases ended up at the ECJ.

The only conflict I'm aware of regarding the ECJ, is the fact that the ECJ has ruled that annual leave must be paid at normal remuneration, as in, it should include OT payments etc, but the EU law only covers 4 weeks annual leave.

The UK by law states that annual leave must be 5.6 weeks minimum, so there's a weird scenario where the "normal remuneration" only applies to the 4 weeks covered by the EU Working Time Directive, and not to the additional 1.6 weeks covered in UK law.

UK law clearly needs to be amended to make the holiday pay issue clear, but in the meantime, there's pretty clear case law. Regardless of Brexit, the ECJ rulings still apply.

Edit: There's a pretty good write up on the .gov.uk website, that covers this, and gives a partial list of relevant case law.
https://www.gov.uk/government/publicati ... egislation

It's also worth mentioning, of course Brexit gives the Tories Carte Blanche to rip up all the previous case law, which are largely based on the EU directives, by writing a new "Employment Bill" that supersedes the working time directive, they've spoken about this previously. But then, they have Carte Blanche to rip up pretty much everything, that's the position we willingly put them in.

[Woody Guthrie]

BREAKING NEWS: Agreement reached on Average Holiday Pay, Resourcing and the reintroduction of Postal Cadets.

Please share this podcast with DGSP Terry Pullinger as far and wide as possible.

We will bring you more details updates on each agreement in the coming days and weeks.

https://soundcloud.com/the-cwu/terry-pullinger-update

#CWUandProud

[Dexydog]

Skip to 11.29.
Mentions 2 lump sums (oh dear), but more interestingly back pay for 2 years "if you meet the criteria".
Not much detail for sounds like legal reasons, basically 10 days before it goes to court agreement reached.
Let's just hope we haven't been shafted, and if so pray we can still use ACAS for individual claims.

[tdavies88]

Glad it’s bloody over, when do you think the back pay will be paid out?