Double Time on Sunday... uh oh

[arlo]

http://www.xperthr.co.uk/editors-choice/boots-unlawfully-reduced-long-serving-workers-pay-premium-for-sundays-and-bank-holidays/113629/   anyone  have the old staff handbooks handy

[Loki]

The Boots case is different as the decision made was done so unilaterally.

As much as I hate to say, this has not.

[Titch]

The Boots case is different as the decision made was done so unilaterally.

As much as I hate to say, this has not.

. What does that mean !

[Nomad]

It is my understanding that the official stance of company & union is that a number of reps will be briefed by Usdaw on Monday morning, with all reps briefed by SM's in the afternoon and that all information is embargoed until Tuesday.

[Lithium194]

If the information turns our to be correct being embargod doesn't mean s** t
So who leaks the information???

[arlo]

The Boots case is different as the decision made was done so unilaterally.

As much as I hate to say, this has not.

so who negotiates the new contracts for those individuals not in the union ?

[Rad]

If the information turns our to be correct being embargod doesn't mean s** t
So who leaks the information???

No one leaked the information.  Store managers were briefed on Monday.  Burns found some info lying around and posted here.  Although a poster did post before that to suggest that double time would be removed.  This is a great site when accurate information and advice is shared.  And can be a good vent for frustrated colleagues at all levels.  But sometimes just getting a little bit of information is damaging. Once we all have the full briefing and q and a on Monday the implications can be discussed accurately. No point in everyone getting upset until Monday.

[oliver]

Upset,staff will be fuming angry all the money they will lose,worrying about bills etc,while those at the top can play happy families,

[Duracell]

The tribunal reviewed the leading case law on reserving the right to vary contracts of employment. In Wandsworth London Borough Council v D'Silva and another [1998] IRLR 193 CA, the Court of Appeal said that, while contracts of employment can be varied only by agreement, employers can reserve the ability to change terms and conditions of employment. The Court of Appeal stressed that "clear language is required to reserve to one party an unusual power of this sort". In Bateman and others v Asda Stores Ltd [2010] IRLR 370 EAT, the Employment Appeal Tribunal held that the employer can reserve the right to vary employees' contracts unilaterally by way of a provision in its staff handbook that allowed it to review, revise or amend the handbook to "reflect the changing needs of the business".

The employment tribunal was not convinced by Boots' argument that, if the claimants in this case wanted to benefit from annual pay rises or discretionary bonuses, they would have to accept "the burden of a rationally applied harmonisation of Sunday premium rates entailing in their cases a reduction in that pay". The tribunal made a clear distinction between pay rises and bonuses, which Boots is not obliged to give, and a clearly contractual premium Sunday pay rate that is not discretionary. Year in, year out, the workers got the premium Sunday working rate.

The tribunal concluded that Boots' unilateral decision to reduce the premium pay rate for these claimants amounted to unlawful deductions from their wages.

The highlited text is a requirement of the indiviuals Contract NOT a collective agreement.

So the mechanics of the TESDAW agreement regardless of how specific it may be doesn't legitimise the change, the forum process as part of The TESDAW agreement is a process not a term so would not be apt for inclusion as an express term if it were to be referenced, and even it was as shown above its true and clear nature needs to be documented in the indivual contract.

Leading examples of case law show that where other sources are referenced ie handbooks and collective agreements they need to be clear in their intent.

The forum process is machinery within a collective agreement which is not legally binding in employment Law.

The TESDAW agreement decided it's best for those staff in it (in a certain area) to give up the right to individually agree. Those that were asked, by majority said yes we concede the need to agree.

A non enforceable under law agreement removes a contractual right under employment law.
With consent may be the cry, but still not enforceable, because they are so, FACT.

Was the clear intent of such a decision know at the time you conceded, I think not.
A simple trust that others would decide what's best for you on your behalf. Is what's proposed best for those concerned? I think not.
Are you so far disadvantaged by decisions made That you wish to realise the need to Agree? because you don't agree.
How would your waiver to need to agree be enforced? if it was decided within and for the purpose of TEDAWS agreement which is not legally binding because it says so and the view of tribunal is such also.

Even if a tribunal views the waiver to determine whether it is apt to be viewed as a contractual term for it to become a legal point of reference indivually it would have be clear in its intent, unlikely as the potential damage and bias it would create if allowed to be viewed and judged as such, it removes clarity, the very thing that has already been judged above as imperative in employment law.

[Loki]

Whilst your efforts are genuinely appreciated, the position that I described remains unchanged. However, you remain fixated upon a certain point of which can or needs to be addressed as a separate issue.

It is clear that the Partnership can be amended or even disolved as it is a voluntary agreement.However, once the pay negotiation have been agreed, that pay then is incorporated within our new Terms and Conditions as it has already been bargained for collectively meaning individual consultation regarding pay is not required.

Again, others should feel free to seek legal advice from a solicitor.

[In my opinion]

I feel everyone should look at their contract. Tribunals are a nightmare. I came on to this site to help people. You and others use words and phrases that make it hard work. Every employee has a contract go from there. Even a tribunal can go wrong in law 

[In my opinion]

A bit like the terms and conditions of employment as in handbook!

[tasha66]

http://m.independent.ie/business/irish/up-to-1000-tesco-staff-fight-massive-cuts-in-pay-34403472.html

Iv put this on night closure aswell.if ya on a pre 2006 contract there coming mainland nxt.irelands a tester i reckon

[Duracell]

Been asleep for a while?

[Loki]

I certainly hope I have and that the last 2 years have been a dream.

Bobby Ewing proved this is possible.

[OpShunned]

Turned into a c =ckfight 

Boil it down guys to one or two key statements for everyone to digest.

Is it legal?

Can it be challenged?

Let's get a definitive 'Can USDAW and Tesco get away with the decision by deeming it to be a bilateral decision (as opposed to that of the Boots precedent which determined that the company used a unilateral move and therein undermining the terms and conditions of their employees).

What is the probability in real terms that the decision is worth taking to a tribunal?


Keep it in simple language assuming that none of us have a scooby- doo as to what the contractual complexities consist of.

[optout]

I think (and therefore am probably wrong), that the fact that USDAW entered into negotiations, means that it is not unilateral.

If USDAW had point blank refused to even enter into negotiations then (I think) it would have become unilateral.

Part of me is sure that Loki is right on this, BUT i wish he wasn't.

In the Irish example i don't believe there have been negotiations, therefore, Duracell's scenario could take centre stage.


OK do your worst tell me I'm talking out of my Ar5e

[optout]

further

I think that Duracel is arguing that USDAW do not have the legal right to enter into negotiations on our behalf [with regards to 'Terms'] (atleast not without our express permission) because our express permission has never actually been given (in the full legal sense).

And Loki is arguing that that permission has been given, in the partnership agreement, to allow collective bargaining 'the union' to be superceded by a mandate by usdaw members to use a representative negotiating team.


there i've succeded in confusing myself, so i must be on the right track

[optout]

..ahhhhhh.....now i just sit back and await the s**t storm.

[Titch]

..ahhhhhh.....now i just sit back and await the s**t storm.

you have actually made more sense . So because usdaw agreed it we cannot challenge it ?

[jojaca]

The idea of the union in my world  is Tesco proposes changes to USDAW, USDAW reports back to us paying members and then we collectively vote on what options are available to us. It just seems whatever Tesco wants they get. Who is paying USDAW the most money, us or Tesco. There should be no partnership agreement, a union is different entity. That's the basic logic for me from level of knowing absolutely nothing.

[optout]

Titch

according to Loki's argument, YES. however Duracell is of the belief that USDAW do not actually have that 'genuine legal' right, or that our individual 'contractual rights' trump any right that usdaw may have been given (slightly uncertain about that last bit Duracell but thought I'd add it for completeness) as a collective deciding on our behalf.

Apols to Loki and Duracell for any errors

Ps it is the nature of legal issues that to be definitive and unambiguous there is a need to spell everything out, hence the long replies of Loki and Duracell, they were not done to confuse they were actually done to increase clarity. and although legalese does often creep in it is out of necessity rather than a genuine desire to be obtuse (by Loki or Duracell)

in my opinion

[OpShunned]

it was deemed by the tribunal in the 'Boots' case that the company acted unilaterally in pulling the premium payment.

The crux of the matter in our case, as I take it, is whether the unholy alliance of Tesco and Usdaw have circumvented any unilateral decision and therefore rendered it unapproachable in court?

In the Boots court case it was USDAW that brought it to court, yet we may be faced with the situation whereby USDAW have agreed via the Partnership to accept the contractual changes and thereby castrated themselves.

Distribution staved off such changes. Why and how?

Tesco Ireland has raised the hackles of the union 'Mandate' who have raised the spectre of industrial action to protect just 1,000 employees . Again, why and what separates them from mainland USDAW?

[Duracell]

The key thing is as opt out mentions is....

Does the waiver within the forum process have legal credibility
If yes, how?

It was agreed as part of a collective agreement that in its self States it is Not legally binding, tribunals and appeals judge based on this belief.

Tribunals have found that individual points within agreements and handbooks have been deemed apt to being expressed terms within individual contracts which then lead to that point having defining relevance, however such points of reference (from numerous leading examples of case law) are judge on their own merit and have been judged to need to be Clear and unambiguous to be viewed as apt.

This suggests that for your waiver to be credible legally it needs to be clear in its intent.
Was it? I find it hard to believe that the agreement facilitates all aspects and possibilities which is the clarity that employment law demands.

Another high profile case where consultation took place with a Union, business needs discussed Etc's, notice of change, changed happened, workers funded tribunal and won 2 years after the change.
Claim was they didn't agree to the change. Which was supported by judgement. Even though the Union were consulted.

The company insisted
We consulted with the union
They claimed that individuals agreed by doing nothing so it was accepted.

The usual method of how individuals EXPRESSED THEIR CONSENT was ascertained, a ballot, no ballot took place.

The judgement concluded that doing nothing is not itself consent as the inaction could be based on the belief that no action is required as without the mutual consent there is no change.
The usual method for individuals to express consent, ballot, did not happen, so the workers could in no way be judge to have consented to change, it ruled in favour of an unlawful defection of wages from the time of change to the time of judgement.


That case was bilaterally discussed through consultation but not legal as express consent was not given.

They key is your waiver which is founded through a non legal binding arrangement.

[Duracell]

^^^^^
Unlawful deduction of wages, plus many more grammar errors, I'm tired I have been reading a lot lately.