United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N GIFFIN (of Counsel) Shacklocks 19 The Ropewalk Nottingham NG1 5DU
For the Respondents	MR R BLOOM (of Counsel) Jacksons Innovation House Yarm Road Stockton-on-Tees TS18 3TN


 


JUDGE C SMITH QC: In this appeal Mr Green appeals against the decision of an Industrial Tribunal held at Nottingham in May 1996 when the Industrial Tribunal dismissed his claim that there had been unlawful deductions from his wages by the Respondents, British Bakeries Ltd, save as regards a relatively small claim which the Industrial Tribunal found to be proved and which is not in issue before us.

The main issue on the appeal, as is common ground, turns upon the proper construction to be given to Mr Green's contract of employment as a van driver with the Respondents which he had held for many years between altogether about 1981 and 1996 (those date are not necessarily completely accurate but broadly correct).

In a nutshell the Appellant contends that the remuneration he has received from time to time under that contract was only in respect of the basic 39 hour week, Monday to Saturday, which he was obliged to work. He maintains that since over the years he has worked on Sundays and at night-times and overtime, beyond the 39 hours, or carried out such work within 39 hours, but not above 47 hours, he is entitled to further substantial sums under the contract for which he has not been paid by the Respondents.

The Respondents contend, on the other hand, that on the proper construction of the contract Mr Green has been paid all that is due to him since his remuneration under the contract (so submit the Respondents) was calculated to include not only payment for hours worked in respect of the basic 39 hour week, but also by way of a guaranteed payment against the obligation imposed upon him in accordance with the national agreement, to be willing at all times to work up to 47 hours per week as required, such hours to include, where necessary, work at weekends and night-time working.

We pause to say that when we refer to the national or the collective agreement, we mean the Consortium Area Agreement between the Federation of Bakers and the United Road Transport Union (URTU), so when we refer to either the collective agreement or the national agreement, that is the agreement which we refer to, which is obviously renewed from time to time, no doubt.

Both sides have agreed that we, as the Employment Appeal Tribunal, can and should decide this basic contractual dispute, provided we can properly decide it without reference to any argument relating to estoppel, which would require evidence to be given and facts to be found. We, after consideration, consider unanimously that we are in a position to decide the contractual issue and we accordingly propose to do so to the best of our ability. We have paid very careful regard to the submissions made to us most ably on both sides. We also have carefully considered the lengthy written and skeleton arguments.

In our judgment the starting point here is that Mr Green's employment was, at all times in our judgment governed by the Consortium Area Agreement, the collective or national agreement, and had been so since 1981 or perhaps 1980, whereabouts he commenced his employment. As we have already said, the national agreement was between the Federation of Bakers and URTU.

As one would expect, from time to time, particulars of terms and conditions were issued in accordance with the relevant requirements under employment law. We consider that those particulars, as they themselves stated in effect, were entirely subsidiary to and intended to be reflective of the employment contract which at all times remained the national agreement. Both sets of particulars state that the contract of employment is contained in and is, in effect, the national agreement. In our judgment accordingly, the particulars fall to be read in such a way that they conform to the contract of employment itself, which was the collective agreement.

There is nothing in the particulars issued in 1980 and 1988 to indicate any variation from the terms of the collective agreement. On the contrary, both sets of particulars expressly confirm and unequivocally state that the terms and conditions of Mr Green's employment were contained in the collective agreement and were subject to review as detailed therein. Thus, it is at all times the collective agreement which is the contract. The importance of this is that the Appellant's argument before us, in our judgment, depends crucially upon his establishing that there was a very important change between the terms relating to remuneration on the one hand and hours of work on the other, brought about by the particulars brought into effect in October 1988, from that which had obtained before that date.

We pause in passing to note that the ostensible reason for the 1988 particulars had nothing whatsoever to do with any change in remuneration or hours of work, but were stated to have been necessitated by changes in the law with regard to pension arrangements and retirement ages for women.

In our judgment, it is clear from Part III and Part IV of the collective agreement that in the case of van drivers in Mr Green's position, there was to be a basic wage for a week of 39 hours to be calculated in accordance with the basic hourly rate applying, from time to time, as set out in the Wages Schedule in Part IV of the agreement. There were also familiar provisions for payment of overtime, Sunday working and for night work. However, in addition, there is in Part IV what is, in our judgment, a key clause set out in Part IV of the Wages Schedule in these terms:

"Guarantee Drivers

A minimum earnings level equivalent to 47 hours applies subject to a drivers availability and willingness to work the hours required Monday to Saturday inclusive."

What this means, in our judgment, because it is somewhat enigmatically expressed, is correctly reflected in the particulars which were served upon Mr Green in 1980 under the heading "Hours of Work".

"The normal working week will consist of five shifts of eight hours worked Monday to Saturday. However the needs of the industry mean that flexibility is required to cover six day working and overtime. Sixth day working is compensated by an agreed sixth day payment."

The result was that in 1980, Mr Green received £72 per week in respect of the basic wage and, in addition, he received a further approximately £66 per week in respect of the guarantee payment, as defined in the particulars and, indeed, as defined in Part IV under the "Guarantee Drivers" clause which we have read earlier.

In our judgment this arrangement, as set out in the 1980 particulars, correctly and accurately reflected the terms of the collective agreement. In exchange for receiving that additional remuneration Mr Green was obliged to work, if required, up to 47 hours per week.

With regard to the calculation of the guaranteed payment, we have been told and we accept, that this would have been and was negotiated at local level, as one would expect, and as particularly the Members sitting with me would be familiar, between local management and local representatives of the trade union. It involved, as we understand it, a relatively complicated formula as to how the 47 hours should be distributed over the week e.g., how many hours should be attributed to Sunday working at premium rates, how many to ordinary overtime and what percentage should be allowed on the total paid hours in respect of "dark money". Such were the matters that had to be negotiated at a local level.

In our judgment, what is absolutely clear up to 1988, is that there was no question of Mr Green being entitled to £138 per week simply as a basic wage for working a 39 hour week. For that, his entitlement was £72 per week, no less and no more. The balance was payable in exchange for his obligation to work the extra hours up to 47 hours per week.

However, it is submitted that the way in which the remuneration clause and the hours of work clause are defined in the 1988 particulars, has fundamentally altered the contractual position. The submission is made that since under "Hours of Work" the 1988 particulars state that the normal working week shall consist of 39 hours, and since the paragraph goes on to state:

"If you are required to work in excess of your normal hours, you will be paid in accordance with the Agreement".

That it follows that the amount stated as remuneration in those particulars, namely £196.33 must be the entitlement by way of basic wage for the 39 hour week. It is submitted therefore, by the Appellant, that on the true construction of the contractual position that any work which Mr Green did, which for whatever reason went beyond the basic 39 hour working week, whether within the 39 hours or up to 47 hours, has not been paid for by the Respondents.

We should say in passing that this point was brought up, for the first time, in about 1994, some six years after the 1988 particulars had been provided to Mr Green. However, we accept, of course, that we are not concerned with any question of estoppel. Any such case would require the case, as we have already said, to be remitted to the Industrial Tribunal. Counsel for the Respondents has this as "a second string to his bow". Counsel for the Appellant accepts that, if he is right on the contract points, the appeal would, in any event, have to be allowed on the basis that the matter should be remitted to the Industrial Tribunal for further evidence and argument on the question of estoppel.

Reverting to the submissions made by Counsel for the Appellant in regard to the 1988 particulars and the effect which it is submitted they had on the contractual position, the Respondents submit on the other hand that no such change was wrought by the 1988 particulars. Mr Bloom submits that the position remained exactly as it was before, so that the remuneration totalling £196.33 referred to in the particulars covered not only the remuneration for the basic 39 hour week, but also a payment calculated appropriately in exchange for the guarantee given by Mr Green to work up to 47 hours per week.

We accept that the way in which the 1988 particulars are drafted leaves much to be desired. They are infelicitously drafted and read literally and in isolation from the collective agreement, might well lead to the conclusion that the remuneration there set out was only referable to and payment in respect of, the basic 39 hour week. However, in our judgment, since the collective agreement is the governing contract of employment, it is both permissible and, indeed, necessary to construe the particulars in a way which conform with the collective agreement.

In 1988 it is common ground that the basic hourly rate specified in the Wages Schedule, Part IV of the collective agreement, was £2.617 per hour and that the basic weekly wage amounted to £102 09 i.e., almost exactly approximating to 39 x £2.617, which in fact equals £102.06. In our judgment, this sum and not £196.33 must be held to be, as a matter of contract, the basic wage payable to Mr Green to which he was entitled under the contract in 1988.

In our judgment the balance of £94.24 per week, which he was paid at that time, must be referable to some obligation on his part and here again, in our judgment, the answer lies clearly in the collective agreement. It must be the guarantee payment referred to in Part IV of the collective agreement, calculated in the manner which we have alluded to above, in exchange for Mr Green's undertaking to be ready, willing and able to work up to 47 hours per week to cover necessary sixth day working and overtime. In our judgment the expression in the 1988 particulars "in excess of your normal hours" must be read in the context, not of the basic 39 hour week, but rather in the light of the obligation to work up to 47 hours, as stipulated for in the collective agreement.

For these reasons we hold that the Respondents' construction of the Appellant's contract is correct, as indeed, the Industrial Tribunal held and that accordingly this appeal falls to be dismissed. We say in closing that it is, in our judgment, unfortunate that more care was not taken in drafting the particulars in 1988 to spell out more clearly what the contractual position was, by reference to the collective agreement, and, indeed, the local agreements. We accept that when construed on its own, without regard to the terms of the collective agreement, such may well have led to a conclusion that the remuneration therein set out was entirely referable to a basic 39 hour week.

We should add finally that certain criticisms were made as to the way the Industrial Tribunal conducted the hearing, although we emphasise that no criticism whatsoever was directed at the lay members. We have to say that the approach of the Chairman, as expressed in the short reasons, does seem, putting it at its lowest, somewhat eccentric and cavalier. However, we do not propose to say any more about this aspect of the case, since both sides agreed that it was appropriate for us to decide the contract point for ourselves and that is what we have done to the best of our ability.

Accordingly, for those reasons the appeal is dismissed.