"Local agreement" vs Contract ?

[absconditus]

I am contracted to work 37½ hours per week and I work for a local authority that has a "local agreement" in place, which is basically "task and finish"

 

If my task exceeds my contracted hours should i be paid overtime?

 

My question is does the local agreement supercede the employment contract or vice versa?

 

many thanks

[teaboy2]

is the local authority your actual employer that is named on your employment contract if so then your employment contract will take precedent over any other agreement and as such over time would be payable. Your local agreement is not legally binding as you can only have one employment contact with each employer and as your employment contract is backed up by the employment rights act it will take precedent in law.

Edited December 17, 2009 by teaboy2

[absconditus]

Yes the local authority is my actual employer, I am a hgv driver for my district council.

 

I have worked past my daily hours, admittedly on very rare occassions, but was not paid overtime. I was told because the local agreement is "task and finish" which states all work will be completed.

 

Do you have a sources for your reply?

 

Also can anyone clarify when one is classed as being "employed" is it upon job offer? or upon acceptance of that job offer? or is when one physically attends the place of employment for the first day? or upon receipt of written confirmation......etc

 

I'd appreciate your further comments.

 

Many thanks.

Edited December 17, 2009 by absconditus

[teaboy2]

in that case the employment contract takes precedent, as the local agreement is in direct contradiction of the employment act. i.e. task to finish is not what the law states you are entitled to be paid for, as the law states you are entitled to be paid the hours worked in order to have completed your tasks (highlighted the bits in red for you below)

 

Taken from the Employment rights Act 1996 chapter 18

 

Chapter II A week’s pay

 

Introductory

 

220 Introductory

 

The amount of a week’s pay of an employee shall be calculated for the purposes of this Act in accordance with this Chapter.

Employments with normal working hours

 

221 General

 

(1) This section and sections 222 and 223 apply where there are normal working hours for the employee when employed under the contract of employment in force on the calculation date.

(2) Subject to section 222, if the employee’s remuneration for employment in normal working hours (whether by the hour or week or other period) does not vary with the amount of work done in the period, the amount of a week’s pay is the amount which is payable by the employer under the contract of employment in force on the calculation date if the employee works throughout his normal working hours in a week.

(3) Subject to section 222, if the employee’s remuneration for employment in normal working hours (whether by the hour or week or other period) does vary with the amount of work done in the period, the amount of a week’s pay is the amount of remuneration for the number of normal working hours in a week calculated at the average hourly rate of remuneration payable by the employer to the employee in respect of the period of twelve weeks ending—

(a) where the calculation date is the last day of a week, with that week, and

(b) otherwise, with the last complete week before the calculation date.

(4) In this section references to remuneration varying with the amount of work done includes remuneration which may include any commission or similar payment which varies in amount.

(5) This section is subject to sections 227 and 228.

222 Remuneration varying according to time of work

 

(1) This section applies if the employee is required under the contract of employment in force on the calculation date to work during normal working hours on days of the week, or at times of the day, which differ from week to week or over a longer period so that the remuneration payable for, or apportionable to, any week varies according to the incidence of those days or times.

(2) The amount of a week’s pay is the amount of remuneration for the average number of weekly normal working hours at the average hourly rate of remuneration.

(3) For the purposes of subsection (2)—

(a) the average number of weekly hours is calculated by dividing by twelve the total number of the employee’s normal working hours during the relevant period of twelve weeks, and

(b) the average hourly rate of remuneration is the average hourly rate of remuneration payable by the employer to the employee in respect of the relevant period of twelve weeks.

(4) In subsection (3) “the relevant period of twelve weeks” means the period of twelve weeks ending—

(a) where the calculation date is the last day of a week, with that week, and

(b) otherwise, with the last complete week before the calculation date.

(5) This section is subject to sections 227 and 228.

223 Supplementary

 

(1) For the purposes of sections 221 and 222, in arriving at the average hourly rate of remuneration, only—

(a) the hours when the employee was working, and

(b) the remuneration payable for, or apportionable to, those hours,

shall be brought in. (i.e approtionable is referring to amount your contract says you will be paid for overtime etc)

(2) If for any of the twelve weeks mentioned in sections 221 and 222 no remuneration within subsection (1)(b) was payable by the employer to the employee, account shall be taken of remuneration in earlier weeks so as to bring up to twelve the number of weeks of which account is taken.

(3) Where—

(a) in arriving at the average hourly rate of remuneration, account has to be taken of remuneration payable for, or apportionable to, work done in hours other than normal working hours, and

(b) the amount of that remuneration was greater than it would have been if the work had been done in normal working hours (or, in a case within section 234(3), in normal working hours falling within the number of hours without overtime),

account shall be taken of that remuneration as if the work had been done in such hours and the amount of that remuneration had been reduced accordingly.

 

 

 

 

Regarding overtime pay for hours worked beyond your contracted 37 1/2 hours per week then the following takes effect.

234 Normal working hours

 

(1) Where an employee is entitled to overtime pay when employed for more than a fixed number of hours in a week or other period, there are for the purposes of this Act normal working hours in his case. (in other words anything over your contracted 371/2 hours is overtime)

(2) Subject to subsection (3), the normal working hours in such a case are the fixed number of hours.

(3) Where in such a case—

(a) the contract of employment fixes the number, or minimum number, of hours of employment in a week or other period (whether or not it also provides for the reduction of that number or minimum in certain circumstances), and

(b) that number or minimum number of hours exceeds the number of hours without overtime,

the normal working hours are that number or minimum number of hours (and not the number of hours without overtime).

 

 

In other words any hours worked exceeding your contracted hours of work is overtime regardless of weather the current task is finished or not. However their is no legal right to be paid an overtime rate so it is the employers discretion to pay you either normal rate or time and a half or extra time off in return for the extra hours worked. However your employment contract should include the conditions of working overtime including what rate the overtime is paid, so if you take a look at your employment contract and see if it says anything about over time pay and the rate in which over time is paid then that is what you are entitled to under your contract of employment.

 

 

If under the local agreement they are not paying you anything or less then minimum wage for the extra hours you have worked to complete the tasks. then not only are they in breach of the employment rights act, as they required by law to pay you your standard hourly rate for the purpose of the act. but also they will be failling to pay minimum wage if the total hours worked work out to be paid at a rate less then the minimum wage i.e total paid divided by total hours worked including the hours you were not paid for.

 

 

you will find the following links helpful with regards to extra information and advice.

 

 

goverment guidance on overtime:

 

 

Employment rights act 1996 chapter 18

 

Basically we need to know what your emploment contract says with regards to working overtime before we can be certain as to what you are legally entitled to for working overtime, so if you can let me know then i can advise you as to what you should be getting paid etc.

Edited December 17, 2009 by teaboy2
forgot to highlight some parts in red

[absconditus]

Thank you very much. I really do appreciate your time and effort.

 

My "statement of terms of employment" state that all pay and overtime and holidays and standard hours will be in accordance with the "National Joint Council for Local Government Services" and also states that the "above" payments "replace *all* factors previously considered as either contractual or conditional overtime"

 

Goes on to say that "overtime will not normally occur during normal service"

Only if breakdowns occur will a consolidated overtime rate be paid.

 

The more I look through this the it references many other documents!

 

Nothing is ever simple.

[teaboy2]

ok so we need to find out what it says in the "National Joint Council for Local Government Services" regarding pay and overtime and hours etc. becuase whatever it says their will then be part of your employment contract. But if what it says is in contradiction to your entitlements as in the employment rights act and working time regulations act then theyd been in breach of either one or both the above acts.

 

also it sounds to me that the "National Joint Council for Local Government Services" is basically the same as a company handbook that states company policy. But without seeing it myself i cant say for certain if it is or not.