Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1640/16

 

 

CLAIMANT: Colin Byrne

 

 

RESPONDENT: Armagh City, Banbridge & Craigavon Borough Council

 

DECISION

 

 

The tribunal finds that, in breach of contract, the respondent has made unauthorised deductions from the claimant's wages. The tribunal makes an award to the claimant in the agreed sum of £1,932.33.

 

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Travers

 

Members: Mr I Carroll

Mr I Rosbotham

 

 

Appearances:

 

The claimant was represented by Brian McKee, Barrister-at-Law, instructed by Donnelly & Kinder Solicitors.

 

The respondent was represented by Rachel Best, Barrister-at-Law, instructed by Worthingtons Solicitors.

 

 

REASONS

 

Issues

 

1.             The claim is in respect of associated allegations of breach of contract and unauthorised deductions from wages contrary to Article 45 of the Employment Rights (NI) Order 1996.

 

2.             The claimant asserts that his contract of employment incorporated the terms of the 'National Joint Council for Local Government Services National Agreement on Pay and Conditions of Service' [referred to hereinafter as the 'Green Book'] insofar as they provide for an enhanced rate of pay for weekend working.

 

3.             The respondent accepts that the Green Book is incorporated generally into the claimant's contract of employment but submits that it is subject to any binding local agreement which differs from the national agreement. In this case it is said on behalf of the respondent that the provisions of the Green Book relating to enhanced rates of pay at the weekend have been replaced by provisions contained within a locally negotiated agreement known as the Single Status Agreement. It is asserted that the express terms of the claimant's contract of employment in effect exclude an entitlement to payment of an enhanced rate for working on Saturdays.

 

4.             The claimant maintains that the provisions of the Single Status Agreement do not supersede the provisions of the Green Book insofar as it relates to his entitlement to an enhanced rate of pay for weekend working.

 

5.             The issue for the tribunal is to determine whether the claimant has a contractual entitlement to an enhanced rate of pay at the weekends. If he does not, his claim fails. If he does enjoy such a contractual entitlement the parties are agreed that the claimant is entitled to an award of £1,932.33.

 

Evidence

 

6.             The tribunal heard from five witnesses in total: the claimant; Ronald Conn (the claimant's shop steward); Sean McKeever (regional officer for Unite, the claimant's union); Sharon Currans (currently Head of Human Resources and Organisation Development for the respondent); and Christine Allister (currently the respondent's Head of Human Resources, Banbridge).

 

7.             Witness statements were exchanged between the parties in advance. The statements were cross-referenced to the 302 page bundle of documentation submitted by the parties.

 

8.             The findings of fact set out below are based on the evidence and information presented to the tribunal. The facts have been established on the balance of probabilities.

Facts

 

9.             The claimant worked for the respondent on and off for a number of years. The period of employment with which the tribunal is concerned began on 26/08/14. On that date the claimant started work as a part-time attendant at the Banbridge Community Recycling Centre. The claimant's employment came to an end on 23/04/16 when he resigned from his job for reasons unrelated to this claim.

 

10.          It was not until after the claimant's contract of employment had terminated that he raised a grievance alleging that he had suffered unauthorised deductions from wages. On 19/05/16 the claimant raised a grievance alleging 'unlawful deduction of wages or breach of contract' arising from an alleged failure to pay, 'National Agreement rates of pay for Saturday work'.

 

11.          The claimant first came to believe that he was entitled to be paid at an enhanced rate for Saturday working when the subject came up during a discussion in 2015 with a shop steward, Joe Hannon, about an unrelated matter. It was this discussion which ultimately led to the claimant's grievance being lodged.

 

12.          The claimant's contract of employment is dated 01/09/14. The relevant provisions are as follows:-

 

' Rate of Pay: SCP 11-14 £7.71- £8.23 per hour. Hours worked on 1 ^st-5 ^th days of a working week will be paid at plain time up to 37 hours worked per week. Hours worked in excess of 37 hours and/or on the 6 ^th/7 ^th day of the working week will be paid at enhanced rate. The postholder will be required to work evenings, weekends and public holidays as part of the opening hours of the Centre.

 

Hours: It is anticipated that the successful applicant will work as follows but flexibility will also be required regarding additional hours and location:-

 

Banbridge Recycling Centre (Total annualised hours: 1164.5)

April - October Tuesday 2.45 pm - 8.00 pm 5¼ hours

Wednesday 8.30 am - 8.00 pm 11½ hours

Saturday 8.30 am - 6.00 pm 9½ hours

26¼ hours per week

 

November - March Wednesday 8.30 am - 6.00 pm 9½ hours

Saturday 8.30 am - 4.00 pm 7½ hours

17 hours per week

 

As indicated above, the number of hours per week will vary depending on the time of year.

 

... General

 

In addition to the foregoing, your employment is subject to:-

(1)           The General Conditions of Service recommended by the National Joint Council and to such additions or amendments thereto which may be adopted from time to time.'

 

13.          An employee working full-time hours in the same job as the claimant would work on Monday, Tuesday, Thursday and Friday each week.

 

14.          It is agreed that the reference in the claimant's contract of employment to, 'The General Conditions of Service recommended by the National Joint Council' is a reference to the Green Book as described at paragraph 2 above. The relevant provisions of the Green Book are:-

 

' Part 3

 

Para 2.3 All employees required to work:

 

•                 Beyond the full-time equivalent hours for the period in question

•                 On Saturday or Sunday

 

...will have the arrangements for remuneration for these working patterns, clearly set out in their contracts of employment. This may be by way of an inclusive rate of pay; locally agreed premium payments, or, by such other method as shall be agreed by the local parties.

 

Para 2.6 Employees, in receipt of basic pay at or below point 28, who are required to work...on Saturday or Sunday...are entitled to compensation as set out...below...

 

(a) Additional Hours

 

Employees who are required to work additional hours beyond their working week are entitled to receive enhancements on the following basis:

 

Monday to Saturday Time and a half

 

Sundays and Public and

Extra Statutory holidays Double time (min 2 hours)

 

(Part-time employees are entitled to these enhancements only at times and in circumstances in which full-time employees in the establishment would qualify. Otherwise a full working week for full-time employees shall be worked by a part-time employee before these enhancements apply).

 

(b) Saturday and Sunday Working

 

Employees who are required to work on Saturday and/or Sunday as part of their normal working week are entitled to an enhancement.

 

Saturday Time and a half

 

Sunday Time and a half - basic pay above point 11

Double time - basic pay at or below point 11'

 

15.          Part 1 paragraph 4 of the Green Book provides that any of the provisions of Part 3 (which includes para 2.3 and 2.6 set out above), '...may be modified by local negotiation'. It goes on to provide guidance as to how conduct the process of proposing and negotiating modifications: 'The party proposing change must state in writing what changes are sought and why and the parties must then seek to reach agreement, normally within three months. Where agreement is not possible, either party may refer the failure to agree to the provincial joint secretaries (or other mutually agreed persons) for conciliation. If the provincial conciliation is unsuccessful, the provincial secretaries may recommend further procedures for resolution of the difference, including external conciliation, mediation or binding ACAS arbitration. The above procedures should if possible be completed normally within a further three months'.

 

16.          The claimant contends that under Part 3 paragraph 2.6 of the Green Book he was entitled to be paid time and a half for Saturday working. The respondent counters that pursuant to Part 1 paragraph 4 of the Green Book a local agreement, the Single Status Agreement, has modified the claimant's entitlement to payment of an automatic enhancement for Saturday working.

 

17.          Until the time of his initial meeting with Mr Hannon, the claimant candidly acknowledges that he was not aware of any entitlement to be paid an enhancement in respect of Saturday working. Following his meeting with Mr Hannon, arrangements were made for the claimant to meet Ronald Conn who is a senior shop steward with the claimant's union Unite.

 

18.          On 3 June 2015 Mr Conn met with the Unite members who are recycling operatives in Banbridge, including the claimant. On considering the claimant's circumstances Mr Conn was firmly of the view that the claimant had an entitlement to an enhancement for Saturday working under the terms of Part 3 para 2.6 of the Green Book. He thought that the, '6 ^th and 7 ^th day referred to in Colin Byrne's contract were obviously Saturday and Sunday in line with the Green Book'.

 

19.          Mr Conn pursued the claimant's case with Christine Allister who is Head of Human Resources (Banbridge) within Armagh City, Banbridge and Craigavon Borough Council. Ms Allister had been employed by the old Banbridge District Council from March 2000 initially as Assistant Human Resources Manager and the time the council ceased to exist on 31 March 2015 she had become Head of Human Resources.

 

20.          It became clear during the course of the discussions between Mr Conn and Ms Allister that they had fundamentally different perspectives on the issue. Ms Allister said that the claimant was not entitled to the Green Book enhancement for Saturday working due to a locally negotiated Single Status Agreement ['SAA'].

 

21.          Mr Conn requested a copy of the SSA and was provided with a sixteen page document bearing the name of Banbridge District Council and headed, 'Single Status Management Side Position Proposals March 2006' ['the March 2006 document']. The document provided to Mr Conn could not fairly be described as a SSA. It was in the nature of a discussion document.

 

22.          Insofar as atypical working is concerned, the document sets out an aspiration to develop a flexible working formula with a new working time plan. Neither the flexible working formula nor the working time plan is set out with any certainty. At paragraph 8.3 of the document it is stated that, 'The provisions for the payment for additional and atypical hours worked have to be reviewed in the context of customer demands and service needs and changing attitudes towards atypical working. Once we have assessed the working week requirements, the Council will propose a new atypical working formula for Banbridge District Council' [emphasis added]. The document went on at paragraph 14.2 to express an aspiration that, 'The effective date for the implementation of the new pay structures linked to single status implementation will be 1 April 2007'.

 

23.          Sharon Currans is Head of Human Resources and Organisation Development for Armagh City, Banbridge and Craigavon District Council. Prior to the establishment of the new council she had worked as Head of Human Resources at Banbridge District Council from 11 June 2001. At paragraph 3 of her written statement to the tribunal Ms Currans described the document which Ms Allister provided to Mr Conn as an, '... initial proposal document that was issued to Unions in April 2006'. She went on to describe how the document introduced the principle of establishing new ways to remunerate staff although she says that the specific proposals were subsequently changed.

 

24.          It is clear that the respondent now acknowledges that in response to Mr Conn's initial request for a copy of the SSA, he was given a document which was nothing of the sort.

 

25.          In around January 2016 Ms Currans and Ms Allister had a meeting with Mr Conn. During the course of that meeting it became clear to Ms Currans that Mr Conn had been provided with a document which was not in fact a SSA. Unsurprisingly Mr Conn renewed his request for a copy of the SSA.

 

26.          Around 01/03/16 Mr Conn was provided with a document headed, 'Appendix A BANBRIDGE DISTRICT COUNCIL Single Status Agreement Document' ['Appendix A']. The document is undated but provides at paragraph 14 that, 'The Council proposes that the agreement will be implemented by 1 April 2007'.

 

27.          Paragraph 2 of Appendix A refers to, 'All parties to this Agreement'. Other than Banbridge District Council which is the author of the document, there is nothing on the face of the document to identify the parties to the 'Agreement'.

28.          Liberal reference is made throughout Appendix A to what the 'Council proposes'. Paragraph 4 is headed 'Proposals for Protection'. Paragraph 4.1 sets out 'a summary of the challenges arising from the Council's pay and grading review' and identifies separately potential detriments to staff working in leisure, technical services and community and enterprise. In respect of each of these areas of staffing the paragraph sets out individually what is described as a, 'Proposed Solution' to mitigate the detriment.

29.          Under the heading, 'Additional and Non-standard Hours', at paragraph 6.1 of Appendix A are set out what are described as, 'General Principles':-

 

'6.1.1 The Council recognises that the provision for additional and non standard hours should be reviewed in the context of changing attitudes towards non-standard working and working patterns used in other sectors.

 

6.1.2 The Council has identified standard working hours as being those that lie between 8am and 6pm inclusive on any given day, and that a standard working week consists of 37 hours worked on the average basis of any five out of seven days for full-time employees.

 

6.1.3 The Council believes that Saturday and Sunday working should be considered normal working days if undertaken as part of the routine working pattern of the individual. Council is prepared to consider an applied allowance for those posts with Saturday and Sunday working as part of their normal working pattern'.

 

Paragraph 6.2 of the Appendix is headed 'Additional Working Hours'. Paragraph 6.2.2 reads as follows:-

 

'Employees at SCP 28 or below will receive payment for additional hours worked in accordance with the following:

 

•            Hours worked up to 37 per week - plain time.

•            Hours worked over 37 ¹ per week and on the 6 ^{th 2} working day in any calendar week - time and a half.

•            Hours worked over 37 per week and on the 7 ^{th 2} working day in any calendar week - double time.

 

Employees at SCP 28 or below who are on the flexible working hours scheme will receive the above payments for additional hours worked outside the standard working hours as defined in 6.1.2 above.

 

¹ An average will be taken where shift patterns/annualised hours are used.

² Or an equivalent rest day where these are unevenly distributed in a shift pattern'.

30.          Mr Conn was dissatisfied with Appendix A, he did not believe that it was a SSA. Mr Conn based this belief on a number of grounds:-

 

•          He thought that, 'it did not have the appearance of an agreement as it contained many proposals and suggestions'.

•          He had been involved in negotiations about a proposed SSA at Craigavon Borough Council which had resulted in an agreed document being produced and sent by post to every union member along with a ballot paper with the option to accept or reject.

•          He did not believe that the Green Book procedure for modifying the national agreement had been followed.

•          Weekend enhancements at the Green Book rate are paid to employees in recycling centres in the former Armagh and Craigavon Borough Council areas.

31.          Appendix A at paragraph 2 expressed the aspiration and proposal that a new pay and grading structure should be implemented, 'that will objectively and fairly evaluate the content of all jobs within the Council...to ensure that Single Status is achieved'. In support of the proposed new pay and grading structure paragraph 3 of Appendix A sets out a proposal for a job evaluation scheme to determine the relative size of all posts which would ultimately determine the grade of the post. During cross-examination Mr Conn accepted that to the best of his knowledge the former Banbridge District Council did have a new pay and grading structure. He also accepted that, 'judging by what has happened since', a job evaluation scheme was carried out.

 

32.          During discussions with Ms Currans, Mr Conn, 'questioned the validity' of Appendix A. He was told that Sean McKeever, a full-time official with Unite, had agreed it. Mr Conn found this difficult to believe because he had been involved with Mr McKeever in negotiations concerning a SSA in the Craigavon Borough Council area and his personal experience of Unite throughout that negotiation was that it had been adamant that, 'Green Book terms and conditions were not affected, and the Single Status Agreement was viewed as an equality agenda'.

 

33.          When Mr Conn contacted Mr McKeever to ask him about the issue, he was told by Mr McKeever that he had no knowledge of negotiations regarding single time pay for Saturday working.

 

34.          Mr McKeever has been a full-time official with the Unite union for around 12 years. In both his written and oral evidence he was adamant that he had no knowledge of any deal to modify the Green Book terms generally for all employees in respect of the enhancement for weekend working.

 

35.          Mr McKeever was adamant that in his capacity as a full-time union official he did not agree with Ms Currans any modification to the Green Book terms and conditions such as would remove the right of a person in the claimant's position to an enhancement for weekend working.

 

36.          It was in April 2006 that Banbridge District Council first produced a document for consultation with the unions in respect of a possible SSA. The document was titled, 'Single Status Management Side Position Proposals March 2006' ['March 2006 document'].

 

37. Ms Currans was the lead officer in the council with responsibility for progressing consultation and negotiation for implementing a SSA. She was also responsible for managing a pay and grading review as part of the harmonisation of terms and conditions required under such an agreement. She led the moderation with trade unions resulting from the pay and grading review. In evidence Ms Currans accepted the importance of the Green Book. She described it as a 'fundamental document'.

 

38.          Negotiations on a SSA moved slowly. The March 2006 document anticipated that the, 'effective date for the implementation of the new pay structures linked to single status implementation will be 1 April 2007'. This date passed without agreement and in June 2008 Ms Currans produced what was entitled, 'Proposal Document for Discussion 23 ^rd June 2008 - to be read in conjunction with initial JE [job evaluation] results' ['June 2008 document']. As implied in the title of the document, by that date some job evaluations had taken place. In fact job evaluation was first introduced in the late 1990s long before there were negotiations in respect of a SSA, and in the intervening years a substantial number of job evaluations had taken place.

 

39.          Unite was not the only union which Ms Currans was dealing with. Nipsa also had a number of members who would be impacted potentially by a SSA and Ms Currans found herself negotiating with representatives from Nipsa as well as Unite.

 

40.          At meetings in June 2008 and again in September 2008 to discuss issues arising from the proposed SSA, Ms Currans was in attendance together with Antoinette McMillan [full-time Nipsa official] and one local representative from each of Nipsa and Unite.

 

41.          Mr McKeever explained that where negotiations concerned a department within the Council where Nipsa had the majority of members affected by the negotiation Nipsa might take the lead in negotiations. The position was reversed where the majority of affected employees were Unite members.

 

42.          The majority of union members in Leisure were Nipsa members and consequently Antoinette McMillan took the lead on the union side in those negotiations. Ms Currans told the tribunal that in respect of Leisure an applied allowance was agreed in respect of employees' weekend working. She cited this as an example of what was contemplated by the wording in Appendix A at paragraph 6.1.3, 'Council is prepared to consider an applied allowance for those posts with Saturday and Sunday working as part of their normal working pattern' [see para 29 above]. The agreement in respect of workers in Leisure was that an allowance of 10% was added to posts at SCP point 28 and below to recognise irregular hours including shift/weekend work as part of a routine working pattern.

 

43.          The words taken from paragraph 6.1.3 referred to at paragraph 42 above did not appear in the Council's original draft of that paragraph. Paragraph 6.1.3 of the June 2008 document stated simply that, 'The Council believes that Saturday and Sunday working should be considered normal working days if undertaken as part of the routine working pattern of any individual'. The words, 'Council is prepared to consider an applied allowance for those posts with Saturday and Sunday working as part of their normal working pattern' were first added to paragraph 6.1.3 in a working document prepared for the September 2008 meeting between Ms Currans and the union representatives. This document was headed, 'Appendix A Banbridge District Council Proposal Document for Discussion 2 September' ['September 2008 document'].

 

44.          No clear narrative account has been given about the circumstances in which the reference to a possible applied allowance in respect of weekend working came to be added by September 2008 to paragraph 6.1.3 of the June 2008 document. Unfortunately no minutes were kept of the June 2008 meeting. Given that the addition is to the potential benefit of union members it is assumed that the addition will have had its origin in comments made by union representatives.

 

45.          It is of note that in each of the two subsequent versions of the Appendix A document provided to the tribunal, dated November 2010 and November 2011 respectively, paragraph 6.1.3 ends with the words, 'Council is prepared to consider an applied allowance for those posts with Saturday and Sunday working as part of their normal working pattern'.

 

46.          While the words of paragraph 6.1.3 remained fixed, other provisions in the documents changed, reflecting the dynamic nature of the document itself. At paragraph 3 of Ms Currans' witness statement she set out changes which were made in respect of the different versions of Appendix A leading up to November 2011. Examples of changes include: increasing the proposed allowance for community safety wardens for unsocial hours and weekend work from 10% to 12.5%; moving from a proposal for removal of task and finishing work arrangements to an agreed buy out of £1,500; moving from a proposal to remove additional properties payments from refuse collectors to an agreed buy out.

 

47.          Negotiations between the Council and the unions took place in a series of meetings. Ms Currans says that at one of the meetings in 2008 she remembers Ms McMillen the Nipsa representative agree, 'that in a modern workforce it was reasonable to pay premium for 6 ^th and 7 ^th day working as opposed to Saturday and Sunday. (I could not be definite at which meeting this was said as no minutes were taken however I would assume it was at the June meeting as this is when a change was agreed to this section)'.

 

48.          Taken at their highest, the words reported by Ms Currans to have been spoken by Ms McMillen do not indicate of themselves an agreement to modify the Green Book provisions in respect of a weekend enhancement. An expression of understanding that something might be a good idea does not represent an acknowledgement that the circumstances have yet arisen where that idea should be implemented.

 

49.          If indeed Ms McMillen had formed the view that an agreement had been reached which would allow her to agree to modify the Green Book terms as to weekend working for all Council workers, it is remarkable that the words, 'Council is prepared to consider an applied allowance for those posts with Saturday and Sunday working as part of their normal working pattern' were added to paragraph 6.1.3 in the September 2008 document.

 

50.          Ms McMillen's task in seeking to reach agreement with the Council was to represent the interests of union members. In the case of workers in Leisure this was evidenced by her negotiation of the quid pro quo of an applied allowance in respect of a modification of the Green Book terms for weekend working in respect only of the workers in Leisure.

 

51.          Save in respect of the words spoken by Ms McMillen set out at paragraph 47 above, Ms Currans did not offer an account of any other conversation with a union representative, whether recorded in minutes or not, where the union representative conceded that the Green Book enhancement for weekend working was modified generally once and for all in respect of all Council workers and/or those working part-time.

 

52.          The tribunal was provided with documents headed respectively: 'Meeting with unions 5 November 2010 - Agenda'; 'Progress report on Single Status 5 November 2010'; 'Agenda Meeting with Unite on Tuesday 23 November 2010 - Outstanding issues'; 'Agenda Meeting with Unite on Thursday 2 June 2011'; 'Overview of Issues'; 'Minutes of Meeting on Thursday 2 June 2011'; and, 'Report from the Head of Human Resources to the Staff Committee meeting to be held on Monday
12 December 2011'.

 

53.          All of the above documents were prepared by or on behalf of the Council and were unsigned. The minutes of the meeting on 02/06/11 indicate that both Mr McKeever and Ms Currans were present among others. None of the documents addressed a generalised modification of the Green Book terms for payment of an enhancement for weekend working. None of the documents addressed the wording of paragraph 6.1.3 in Appendix A including its continued reference to the Council being, 'prepared to consider the payment of an applied allowance for those posts with Saturday and Sunday working as part of their normal working pattern'.

 

54.          The respondent also provided the tribunal by way of an example, a copy of documentation sent by the Council in May 2012 to an employee, Mr McCaughey, who is a mechanical sweeper driver. In a letter addressed to Mr McCaughey headed, 'Single Status Agreement and Changes to Working Methods', it is made clear that Mr McCaughey's employment is subject to the Green Book. This in turn is stated to be subject to addition and amendment by the SSA which is, 'a local collective agreement which amends Terms and Conditions of Employment'.

 

55.          The letter attaches, 'New Terms and Conditions of Employment which have been agreed with your Trade Union representative in accordance with the Single Status Agreement and are directly related to your own substantive post within Council'. Mr McCaughey's attention is specifically drawn to 3 matters: a buy out in respect of his entitlement to Additional Properties Payment; the substitution of Occupational Sick Pay in place of Attendance Supplement; and an increment of 1 day in his entitlement to statutory/public holidays. In order to facilitate the buy out payment Mr McCaughey was invited to sign the amended terms and conditions of employment.

 

56.          On his amended terms and conditions of employment dated 30/05/12, Mr McCaughey's department is described as 'Environmental Services, Technical Services Division'. His hours of work are stated as, '37 hours per week, Monday - Friday. The post may require early morning and/or evening working. Weekend and public holiday working may be required'. By letter dated 18/06/12 to Mr McCaughey which was written in order to, 'clarify the issue', Ms Currans wrote: 'I would confirm that I have agreed in conjunction with recent changes to terms and conditions of employment within Street Cleansing as part of the Single Status Pay & Grading Review [emphasis added] that you should receive payment at time & half rate for any hours worked in excess of 37 hours per week between Monday - Friday [emphasis added]. I have instructed the Council's Finance Section today to arrange to implement this with effect from 1 April 2012, and requested that any arrears of pay due to you are calculated and paid to you as soon as practicable'.

 

57.          There is no comprehensive agreed SSA in documentary form. The final version of Appendix A is titled, 'Proposal Document for Discussion 9 ^th November 2011' [the 'November 2011 document']. As noted above, at paragraph 6.1.3 it retains the sentence which refers to the Council being, 'prepared to consider an applied allowance for those posts with Saturday and Sunday working as part of the routine working pattern of any individual'.

 

58.          Ms Allister stated at paragraph 3 of her witness statement that at the meeting in November 2011 when the November 2011 document was circulated, 'There was agreement to all areas of the proposal document with the exception of the proposal for the buy-out payment for those employees who had contracts to work 35 hours. There were no other objections raised and at no time, in my presence, did regional or local officers from any union object to the proposals relating to 6 ^th and 7 ^th day working arrangements and associated payments'.

 

59.          Ms Allister bases her assertion that there was 'agreement' to the 6 ^th and 7 ^th day working arrangements on the basis that there was no discussion about what said on the issue in the November 2011 document. It appears that neither the Council representatives nor the union representatives initiated discussion about this issue which was of high significance for both sides.

 

60.          The issue was of special significance to the Council which was the party seeking to secure agreement to a change in the terms and conditions of employment through the modification of application of the Green Book provisions on the issue. It is remarkable that neither Ms Currans nor Ms Allister gave an account, other than in respect of Ms McMillan's reported words, of any discussion specifically on the issue. Neither any minutes/other written record, nor an oral account, relating to such a discussion have been submitted to the tribunal.

61.          Any provisions of the Council's proposed SSA which have been implemented, have been implemented on an ad hoc basis in respect of specific jobs. There was no ballot of the union members on the SSA. Ms Currans acknowledged in evidence that this is something which she would have expected to occur.

Law

 

62.          Article 45 of The Employment Rights (NI) Order 1996 ["the ERO"] prohibits an employer from making deductions from the wages of a worker unless the deduction has been authorised by statute, a relevant provision of the worker's contract, or in writing by the worker himself.

 

63.          Where an unauthorised deduction from wages has occurred, Article 55 of the ERO gives a worker the right to make a claim at the Industrial Tribunal in respect of that unauthorised deduction.

 

64.          The tribunal was referred by the respondent's counsel to the Trade Union & Labour Relations (Consolidation) Act 1992 at section 178(1), which she stated did not extend to Northern Ireland but was 'useful for comparison'. The section defines a collective agreement as, 'any agreement or arrangement made by or on behalf of one or more trade unions and one or more employers or employers' associations and relating to or connected with...s178(2)(a) terms and conditions of employment...'.

 

65.          It is noted that the s178(1) definition of collective agreement extends to 'agreements' and 'arrangements'.

 

66.          The respondent's counsel in oral submissions also referred the tribunal to the 2013 version of the IDS handbook title 'Trade Unions' at page 324 paragraph 9.4. In particular the tribunal was referred to an extract set out there from the judgement of the Employment Appeal Tribunal ['EAT'] in Burke v Royal Liverpool University Hospital NHS Trust [1997] ICR 730. On the facts of that case the EAT found that an exchange of letters between the union and the trust was capable of constituting a collective agreement. The EAT commented that what was required for a collective agreement was that, 'there must be a mutual intention on the part of the employers and the employees' bargaining agents to enter into a collective bargain [emphasis added], the effect of which will be to modify the contracts of employment between employer and employee'.

 

67.          Counsel for the respondent further referred the tribunal to Halsbury's Laws of England (fifth edition) Volume 22 at paragraph 256. The paragraph deals with the circumstances where silence may constitute a contractually binding acceptance: ′Where the offeree is silent following the offer of a bilateral contract, a distinction must be drawn between the act of acceptance and communication of acceptance. It is not always necessary that acceptance be communicated before it becomes effective, but there must be an act of acceptance'.

 

68.          In submissions the claimant's counsel referred the tribunal to Chitty on Contract at paragraph 13-080 in the 2015 edition, in support of the proposition that where there are apparently inconsistent provisions in a contract an effort should be made to give effect to every clause unless it is manifestly inconsistent with or repugnant to the rest of the agreement. Counsel relied upon the case of Barton v Fitzgerald (1812) 15 East 529 at 541 which is cited in a footnote in Chitty in support of the proposition.

 

69.          The claimant's counsel further relies upon the case of Modern Buildings Wales Ltd v Limmer and Trinidad Co Ltd [1975] 1 WLR 1281 which is cited in a footnote to paragraph 13-082 in Chitty in support of the author's proposition that, 'If clauses are incorporated by reference into a written agreement, and those clauses conflict with the clauses of the agreement, then, in the ordinary way, the clauses of the written agreement will prevail'.

 

70.          Neither party provided the tribunal with copy authorities or invited the tribunal to consider the detail of any judgement other than as referred to in the books cited above.

 

71.          A collective agreement may be incorporated into a contract of employment either expressly, by implication, or through the agency of a union with ostensible authority to bind its members in respect of the particular issue which is the subject of the collective agreement. The issue as to whether a collective agreement is incorporated is to be determined by common law principles as to the formation and variation of a contract.

Determination

 

72.          During the course of the hearing it was intimated by the claimant's counsel that there may be other workers affected by the decision on the facts of this case. The tribunal wishes to make it clear that the decision herein is one which is specific to the evidence and submissions presented to the tribunal in this case. The tribunal has heard evidence relating to the claimant alone. The tribunal's determination is entirely dependant on the evidence presented at this hearing.

 

Green Book

 

It is not disputed that, insofar as they have not been varied by any local agreement, the terms and conditions set out in the Green Book have been incorporated in the claimant's contract of employment. Ms Curran's description of the Green Book as a 'fundamental document' is reflected in its incorporation into the claimant's contract of employment as set out at paragraph 12 above:

 

'In addition to the foregoing, your employment is subject to:-

 

(1) The General Conditions of Service recommended by the National Joint Council and to such additions or amendments thereto which may be adopted from time to time'

 

73.          The provisions of Part 3 of the Green Book set out at paragraph 14 above apply to the claimant's contract of employment, subject only to whether their application has been modified by reason of a local agreement.

 

74.          In analysing Part 3 paragraph 2.6, a distinction must be drawn between paragraph 2.6a and 2.6b.

 

75.          Paragraph 2.6a relates to overtime and makes provision for enhanced rates of pay in respect of 'additional hours' worked beyond the working week. On a Saturday this would be paid at time and a half.

 

76.          Paragraph 2.6b is not concerned with overtime. It provides, inter alia, for an enhancement at time and a half where an employee is required to work on Saturday, ' as part of their normal working week'.

 

77.          The significance for the claimant is that, if there has been no relevant modification of the Green Book terms, he is entitled to be paid at time and a half on Saturday if it is part of his normal working week.

 

78.          It is of note that Appendix A at paragraph 6.2.2 [see para 29 above] relates to the payments in respect of 'additional hours'. It does not relate to the payment of an enhancement due in respect of Saturday or Sunday when it is part of the routine working pattern. Insofar as that is concerned paragraph 6.1.3 merely sets out the Council's belief that Saturday and Sunday working should be considered as normal working days if undertaken as part of the routine working pattern. The paragraph then goes on to record the Council's readiness to consider an applied allowance in respect of Saturday and Sunday working.

 

Has Part 3 paragraph 2.6 of the Green Book been modified by a collective agreement?

 

79.          As noted at paragraph 66 above, at the heart of a collective agreement is, 'a mutual intention on the part of the employers and the employees' bargaining agents to enter into a collective bargain [emphasis added], the effect of which will be to modify the contracts of employment between employer and employee'.

 

80.          A suggested process for reaching a collective agreement is set out in the Green Book at Part 1 paragraph 4 [see paragraph 15 above]. No part of it is mandatory, other than that, 'The party proposing change must state in writing what changes are sought and why and the parties must then seek to reach agreement, normally within three months'. The March 2006 document and/or Appendix A meets the basic requirement of a proposal in writing. Thereafter the aspiration for agreement within three months fell by the wayside.

 

81.          Save as noted above, there is neither a binding prescribed procedure for reaching agreement nor is there a prescribed form for recording the agreement. It is a matter of evidence in any particular case.

 

82.          Any party which seeks to establish that an agreement has been reached in respect of any modification of the application of the Green Book terms, let alone a significant modification, would be well-advised nonetheless to ensure that the agreement is recorded in clear terms in a document to which both parties unambiguously have given their consent in writing. It is not however a formal legal requirement and the tribunal has considered the question of whether or not there is a relevant collective agreement in the context of all the available evidence.

 

83.          The respondent asserts that there is a collective agreement evidenced in Appendix A at paragraph 6, in particular paragraphs 6.1 and 6.2 [see paragraph 29 above].

 

84.          The issue of a modification of the application of terms of the Green Book in respect of the payment of an enhancement for weekend working was a significant one from the perspective of both the Council and the unions. If the application of the Green Book was modified in this regard generally and for all time it would have had a significant impact on the pay regime in respect of all those present and future employees whose normal working hours include time at the weekend. In this context it is surprising that there is no written documentation either clearly recording the agreement or even a Council minute recording the specific date of the agreement and identifying the individuals who concluded it on behalf of the Council and the unions.

 

85.          The one specific recollection of a conversation which Ms Currans had with Ms McMillan falls far short of the words necessary to indicate the necessary mutual intention to form a collective agreement.

 

86.          As noted at paragraph 46 above, the various versions of Appendix A reveal a dynamic document, responsive to agreed changes. The words at the end of paragraph 6.1.3 however remained constant after their introduction in the September 2008 document: 'Council is prepared to consider [emphasis added] an applied allowance for those posts with Saturday and Sunday working as part of their normal working pattern'. The words indicate that there is not yet complete agreement in respect of the payment of an enhancement for weekend working. The fact that agreement may have been reached in respect of arrangements for weekend working in respect of some posts (e.g. Leisure) clearly was not regarded as evidencing agreement in respect of all such posts.

 

87.          There is some force in the argument that a union representative is unlikely to relinquish on behalf of his or her members a valuable benefit unless there is a compensating provision e.g. the buy out in respect of the Additional properties payment for Mr McCaughey.

 

88.          The respondent relies upon what it says is the union's silence when the union representatives were confronted in negotiations with paragraph 6.1 and 6.2 of Appendix A. The respondent also relies upon the union representative's apparent lack of objection when presented with agendas for meetings which purported to set out the outstanding issues, agendas which did not include paragraphs 6.1 or 6.2. Ms Best cites Halsbury's Laws of England volume 22 at paragraph 256 and she relies on the course of dealing between the union and the Council in negotiations spanning several years.

 

89.          The tribunal is not persuaded by the respondent's argument on this point. The circumstances in which silence might be said to constitute acceptance simply do not arise in this case.

 

90.          Save in respect of the comments made by Ms McMillan the tribunal has not heard evidence from the respondent of the details of conversations which took place between the Council and the union representatives in respect of paragraphs 6.1 and 6.2 of Appendix A. The respondent has not described initiating conversations in respect of paragraphs 6.1 and 6.2 and being met directly silence from the union representatives. Even if this had been the case, the versions of Appendix A contain so many different provisions relating to different aspects of what the respondent hoped would form a comprehensive SSA that a simple failure to address paragraphs 6.1 and 6.2 cannot objectively, or indeed reasonably, be thought to constitute acceptance of their terms. In any event, even if the respondent was correct in adopting silence as acceptance, the acceptance would include paragraph 6.1.3 which includes the possibility of an applied allowance in respect of weekend working.

 

91.          On the evidence, the tribunal does not find that a collective agreement has been reached which modifies the application of the Green Book Part 3, paragraphs 2.3 and 2.6.

 

Claimant's initial ignorance as to his potential entitlement to an enhancement

 

92.          Subject to any modifying local agreement, under the collective agreement embodied in the Green Book the claimant had a right to an enhancement for weekend working. Both the benefits and burdens of a relevant collective agreement are binding on an employee regardless of whether or not they are aware of the provisions. The claimant's initial ignorance as to the respondent's potential breach of contract does not disentitle him from pursuing his claim. It is clear from the actions of the union representatives acting on his behalf that the claimant did not accept or acquiesce in any breach of contract by the respondent relating to the payment of a weekend enhancement.

 

Normal Working Week

 

93.          The provisions of the claimant's contract of employment in respect of working hours are set out at paragraph 12 above.

 

94.          The contract is clear insofar as the hours which the claimant is expected to work: 'It is anticipated that the successful applicant will work as follows but flexibility will also be required regarding additional hours and location'. The days on which it is specified that the claimant will work are: Wednesday and Saturday throughout the year, and Tuesdays between April and October.

 

95.          Insofar as payment of an enhanced rate of pay is concerned, the contract states that: 'Hours worked on 1 ^st-5 ^th days of a working week will be paid at plain time up to 37 hours worked per week. Hours worked in excess of 37 hours and/or on the 6 ^th/7 ^th day of the working week will be paid at enhanced rate. The postholder will be required to work evenings, weekends and public holidays as part of the opening hours of the Centre'.

 

96.          Ms Best on behalf of the respondent submits that on, 'any plain interpretation it means that the claimant had to work 6 consecutive days before he was entitled to an enhanced payment. The purpose of the provision is to reward those staff members working 6 or 7 days consecutively'.

 

97.          Mr McKee submits that '6 ^th/7 ^th day of the working week' could mean Saturday and Sunday'.

 

98.          Unhelpfully where a dispute has arisen as to its meaning, a 'working week' is not defined in the contract. No start day or end day is nominated. The tribunal has not been referred to any authority in respect of the meaning of 'a working week'.

 

99.          As set out at paragraph 12 above, Saturday working was unquestionably part of the claimant's normal working week. He was required to work on Saturdays throughout the year.

 

 

100.       Under the heading 'Rate of Pay' the contract sets out the basic rate of pay together with the qualifying terms for enhanced rates of pay.

 

101.       In so doing, the contract does not expressly exclude the operation of Part 3 para 2.6b of the Green Book as set out at paragraph 12 above. This is the paragraph which provides for the payment of an automatic entitlement to an enhanced rate in respect of Saturday working where the employee is in receipt of basic pay at or below point 28.

 

102.       In effect this provision of the Green Book sets out an additional circumstance in which there will be payment of an enhanced rate. The provision has been incorporated into the contract of employment through the incorporation of the Green Book terms. It is a provision which the tribunal has found has not been modified by a locally negotiated collective agreement in the claimant's case.

 

103.       The statement in the contract of employment that, 'The postholder will be required to work evenings, weekends and public holidays as part of the opening hours of the Centre' is simply a statement of the times of day/days of the week on which the claimant might be compelled to work under the contract. The reference to weekends does not exclude the terms of the Green Book in respect of the payment of an enhanced rate for Saturday working.

 

Conclusion

 

104.       In the circumstances the claim succeeds and the tribunal makes an award to the claimant in respect of the agreed sum of £1,932.33.

 

105.       This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 12 and 13 January 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: