At the Tribunal | |
Before
HIS HONOUR JUDGE D PUGSLEY
MR D J JENKINS MBE
MR A E R MANNERS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR IAN SCOTT (Of Counsel) Messrs Pattinson & Brewer Solicitors 71 Kingsway London WC2B 6ST |
For the Respondent | MR ANDREW BURNS (Of Counsel) Instructed by: Consignia Plc Impact House 2 Edridge Road Croydon CR9 1PJ |
JUDGE D PUGSLEY
vi) "The Respondents agreed a moratorium on contracting out the cleaning pending the result of a ballot to be held by the Union in June 1995.
vii) There were discussions between the Trade Union and the Respondents and an agreement was reached to the effect that (inter alia) the EX-IWM supplement would no longer apply [that was a sum of £11.40] but would be added to and included in the basic rate per week for every cleaner and made pensionable."
"At page 43 is a copy of the Trade Union document which was sent to members prior to the ballot. It records the "(the £11.40) will not apply for the calculation of NDA [which acronym stands for Night Duty Allowance] and overtime". On the same page later in that document under the heading "Overtime", we see "overtime rates will have a new figure for calculation as follows:
Monday to Friday
Ordinary rate overtime
1.3 equals £4.484 per hour
Schedule attendance rate overtime
1.5 equals £5.85 per hour
Saturday
1.8 equals £6.70 per hour
Sunday remaining at the current rate"
ix) "There is no calculation shown for overtime rates for Bank Holidays and Public Holidays for the simple reason that neither party, the Respondents or the union thought about those matters in their negotiations, and the matter was not raised prior to the ballot. The Union balloted and there was a small majority in favour of accepting the proposals. As is normal the Respondents then prepared a pay directive which reflected the agreement reached and this was sent to the Trade Union for their information. The Directive, copy at 50-68 in the bundle, is accompanied by pages 48 and 49 instructions to the Personnel Department as to the implementation of the Pay Directive.
x) The Pay Directive comprises various schedules Part A to Part N which deals with the specific details relating to pay due to individual classes of workers. The appropriate schedule for the purposes of this case being Schedule J, copy at page 60 which is headed 'Overtime Multipliers and Hours of Work'. The schedule is in column form and opposite the word "cleaners" is set out the rates per day for Monday to Friday, Saturday, Sunday and for Bank and Public Holidays. The latter overtime pay for Bank/Public Holidays being shown as Day plus £5.59 per hour or £9.31 per hour. That document was sent to the Trade Union prior to being sent to the various pay departments. The Trade Union did not raise any queries on that schedule. Another such schedule with updated rates of pay was sent in a similar fashion after October 1995 and October 1996 pay rounds.
xi) The note to personnel department, copy at page 48 at paragraph 2, refers to the formal agreement (pages 77-78) which should be referred for the authoritative guide.
xii) In Schedule J, copy at 60, the Respondents have calculated the Bank/Public Holiday overtime on the same basis as they have calculated all the overtime i.e. that have used the basic without taking into account the [enhanced payment of £14.60] which has been consolidated into the basic pay and become pensionable but is had been agreed that it would not be included in the overtime calculation.
xiii) The finalising of the detail of the negotiation occurred in July 1995 and all of the witnesses recollections were hazy. Mr Bond was sure that the matter would have been raised with Mr Percival, the Respondents evidence is that quite often after negotiations there are peripheral matters that need tidying up and that these would be discussed informally, usually over the telephone, when it comes to finally reducing the terms of the agreement to black and white. Mr Bond cannot recall specific conversations although there were many. Mr Percival on the other hand from the trade union does not recall any conversations at all during that period in July 1995.
xiv) It appears that what happened was when the Respondent's staff were preparing the new Schedule J, no doubt working from a previous draft and amending the various columns calculated the Bank Holiday and Public Holiday overtime on the same basis as had been agreed for the other overtime rates.
xv) It is not possible for the Tribunal to say whether this matter was discussed over the telephone, but what is clear is that there was a draft directive and a final directive which was sent to the Applicant's trade union prior to August 1995 and on two subsequent occasions. Mr Hayes and Mr Percival [from the Trade Union] told the Tribunal that they would not in the ordinary course of events check the schedules as they would assume that they would have reflected the agreement that they had negotiated, they would pass them on to their research department. [The Tribunal expressed surprise at that evidence] as the Tribunal would have thought that they would have checked the instructions being given by the Respondents to their pay department to ensure that the instructions being given corresponded with the agreement that had been negotiated by the unions.
xvi) Notification of the changes as a result of the negotiations were notified to the employees by advertisement in the Post Office Gazette of the 13th September 1995, copy at page 80 and 81. On page 80, is set out the basis of the bulk of the changes and on page 81 at the end of the article relating to revision of pay we see the words "Details of the changes are contained in RMPD6/95" i.e. the copy directive at page 50-68 and Schedule J in particular.
xvii) The Respondents then implement the payment structure as is set out in the Schedules which forms part of The Royal Mail Personnel Manual, and therefore part of the Applicant's contract of employment.
xviii) It is unfortunate that the Respondents, having noticed when preparing Schedule J that Bank and Public Holiday overtime rates had not been specifically spelt out in the documentation, that that point was not raised in writing with the Applicant's union instead of proceeding in the way they did on the basis of the same multiplier as before and on the same basis for the hourly rate as Sunday and other overtime. Had that simple course have been taken then this case would not have needed to have been brought.
xix) The Applicant worked overtime after the 1st August 1995 and the Respondents paid the Applicant for his Bank Holiday overtime on the basis of an hourly rate calculated omitting the UP AP supplement which after the 1st August formed part of the basic pay, (and London Weighting also) and then multiplying it by 2.5 [ the same multiplier that we are concerned].
xx) The Applicant worked a number of Bank Holidays and was paid on this basis. It was sometime in April 1997 when the Applicant's attention was drawn to his Bank Holiday overtime pay by a union official who suggested that he may have been underpaid. Mr Hayes then raised the matter by letter dated 21st April 1997 p.187 with Mr Bennett (it was not raise in relation to Mr Howell specifically) neither did Mr Howell ever raised his concerns with the Respondents. Mr Bennett's response is at page 188. In the response Mr Bennett makes the point after explaining the Respondent's understanding of the basis of calculation of Bank Holiday overtime " I understand that on each occasion Royal Mail Strategic Headquarters Personnel Department followed its normal procedure or sending the draft pay directive to the union for check (sic) and comment prior to issue and Publication in the Post Office Gazette". [The Tribunal then reviewed the correspondence that took place].
7 "The Applicant's contract comprises his letter of appointment (pages 10-12 of the bundle) and the Royal Mail Personnel Manual as amended from time to time.
8 At paragraph 8 of the letter of appointment it provides for variations to the conditions of service following discussions or negotiations between the Post Office and the appropriate trade unions. There is no provision that there can be no variation without prior agreement with the trade union. Neither is any Collective Agreement expressly incorporated into the contract of employment. In this case the Post Office gave notice of a change to the terms and condition following discussion with the trade unions of variations to various matters relating to the contract including overtime rates. Notice of such change was given to employees including Mr Howell by Publication in the Post Office Gazette of 13th September 1995 which in return referred to RMPD6/95. PMPD 6/95 contains Schedule J in particular which clearly sets out the Bank and Public Holiday overtime rates as of the 1 st August 1995 and they are those amounts set out opposite "cleaner" and under the heading "Public and Bank Holiday", namely the rate of Day plus £5.59 per hour or £9.31 per hour. That was the notification of the change in the contract term. It confirms that the overtime was calculated as before but without taking into account the £11.40 UPAP addition which had been added as a result of negotiations to the basic pensionable pay but which was excluded from the overtime calculation.
9 Mr Howell continued to work overtime on Bank Holidays and the rate was calculated [by the old multiplier of 2½ which excluded the inclusion of the increment which was incorporated into his pensionable pay]
The Tribunal went on to say that would have been obvious to Mr Howell or should have been obvious to him and then went on to hold that he had affirmed the contract.
"The sub-text to this case is that the union wish to achieve a finding that collective agreements are incorporated by some mechanism into the postman's contract of employment.
The contractual position is essentially fairly simple. The Appellant's letter of appointment provides that variations to the conditions of service can be made following 'discussion or negotiation' with the appropriate trade unions. Agreement is therefore unnecessary before a variation is made. The letter also incorporates by reference the Staff Contract Manual, replaced by the Royal Mail Personnel Manual. The Post Office varies the terms and conditions of employees by giving notice to them in the Post Office Gazette.
In 1995 new pay rates were negotiated. A collective agreement dated 18th August 1995 was entered into by the Respondent and the CWU. This did not affect the Appellant's contract, as it was not incorporated into it.
The Appellant is paid and has always been paid according to the rates set out in the Royal Mail Personnel Manual (and its forerunner the Staff Contract Manual); specifically the Pay Directive.
Before any of the alleged deductions the Appellant's contract was varied again. The contract as at February 1996 is set out in the 'Revision of pay and allowances' in the Personnel Manual published in the Gazette. It was varied again and as at February 1997 . . . The Appellant was properly paid in accordance with those pay rates as were all cleaners. He worked Bank Holidays and accepted these payments without complaint, having been formally notified of the variations in the Post Office Gazette. By his conduct, he accepted each of the variations to his contract."