ARmy Rumour SErvice

Originally Posted by Pyianno

If I may offer a word of advice - don't sign the opt out from the Working Time Regulations.

In which case the OP will find his hours capped at 48 - and he wants to work the extra shifts to earn money.

And if he wants to get on with his senior management, telling them what to do is not a smart option. Asking for a meeting to discuss any legitimate concerns in a mature and controlled manner is - together with a willingness to find a mutually acceptable compromise.

Wordsmith

Originally Posted by Wordsmith

In which case the OP will find his hours capped at 48 - and he wants to work the extra shifts to earn money.

And if he wants to get on with his senior management, telling them what to do is not a smart option. Asking for a meeting to discuss any legitimate concerns in a mature and controlled manner is - together with a willingness to find a mutually acceptable compromise.

Wordsmith

Yeah but sounds like they want him to keep working the extra but lose the pay? Why agree to that?

The point I am trying to instill is that the options are either to agree to the opt out or not to agree. Agreement will confer on his managers the right to ask him to work unlimited shifts with no commensurate increase in pay. Why agree to it?

Originally Posted by Wordsmith

If I read your last post right, you are working two extra shifts a month because a colleague has been suspended.

I would expect you to be paid for the additional hours at your basic rate of pay (i.e. no overtime). I would not expect you to be totally unpaid for the shifts. The extra hours will be paid at flat rate - and not at time and a third.

...

Wordsmith

^ What he said.

Get that meeting with HR and, assuming from what you've said that you are, tell them you're happy to work the overtime required to fulfill your own role unpaid. Point out, however, that the extra two shifts are to cover someone else's role, and (put as forcefully as you feel comfortable with) you are not happy to work them unpaid.

Seems a bit cheeky for them to suspend someone and then expect others to fill the role FOC. What happens if he doesn't come back? "Well, we've managed without him so far, maybe we should make that position redundant..."

Ah, hadn't read the original post closely enough. I had interpreted it as the OP would get paid flat rate for the extra time, but not at overtime rates.

The clause about working extra hours as necessary to do your job as necessary is a fairly standard one for some grades of staff. The usual meaning of it is you'll stick another hour onto your usual day for a few days to meet an urgent deadline, but that its not meant to be custom and practice. What I would not be expected to do is work two whole days a month unpaid on a regular basis.

The root of the problem may be costs. There are 5 operations managers, one of which is currently suspended - presumably on full pay. The other managers have been asked to pick up the slack - and as they're being paid for the extra hours, that's put the Operations Manager (the OP's boss) 20% over budget on one of his wage items in the monthly management report. I suspect he's been questioned by his boss and is now trying to get back into budget by cutting out the pay for the managers covering shifts.

This is actually quite a tricky one to deal with as the OP will want to protect his own interests without being labelled as argumentative. I'm loath to give too much advice without knowing the full facts, but here goes:

1) Ask to see the Operations Manager and explain you are indeed happy to cover the missing shifts. However, point out to him that the 'work extra hours' clause was probably meant to cover the extra hour or two on the end of a shift, and not working complete shifts.

2) Explain to him that you realise that the extra costs are a problem to him and ask if there is some reasonable compromise that can be achieved. For example, can you be paid a discretionary bonus rather than a wage directly, so that his monthly management accounts look more normal.

3) I would gently suggest to him that because of the unusual circumstances you are happy to sit down with him and HR to find a compromise. The key is HR - whom I suspect will start to make alarmed noises if they find out you're expected to work extra shifts without pay. Companies are expected to issue reasonable instructions - i.e even if the instruction to work 2 days a month without additional pay is within the letter of the OP's employment contract, is it acceptable practice? HR should asking if it is an instruction a considerate employer would issue - the answer is probably no.

What the OP should avoid at all costs is the appearance of being confrontational - his whole attitude should be "I understand your problems - how would you feel if you were in my position?" The aim should be to to reach some agreement with his Operations Manager that both sides are happy with. There is no point in beating him over the head and winning a short term point while having him getting his own back over the long term.

But ultimately the OP needs to make his own mind up on what is best for him. And that's a call only he can make.

Wordsmith

I got stuffed with one of these. I clarified it with my manager and he told me that while there would be a certain amount of overtime that would be unpaid, unreasonable amounts would accrue overtime pay. All was fine until that manager retired - then I found I was working all 65 hours of "social" hours for 37 hours pay. The signed agreement, which I'd annotated to refer to my manager's explanation, has amazingly gone missing, leaving me with about £30000 worth of unpaid work. I've got the choice of forgetting about it or risking hefty solicitors fees to try to get it back, which without the signed agreement is a hell of a risk.

If you value your overtime and quality of life, get the contract reworded to spell out exactly what gets paid and what doesn't so that there are absolutely no ambiguities. Then make lots of copies of it and wallpaper your house with them so that you'll be able to find it in years to come.

Such clauses are a common method under which some employers will seek to circumvent the statutory minimum-wage requirement which cannot be contractually abrogated. The imposition of a fixed salary requiring open-ended hours the totality of which when accumulated over the paid period will often exceed the lawful remunerative level thus exposing the employer to enforcement action for non-compliance.

Clause 13 of the Enterprise and Regulatory Reform Bill currently before Parliament will allow Employment Tribunals the discretion to penalise employers for a breach of the law. The intention behind the provision is to: Encourage employers to take appropriate steps to ensure that they meet their obligations in respect of their employees, and to reduce deliberate and repeated breaches of employment laws.

Under the Bill, if an employer is found to have breached a worker’s rights and the employment tribunal considers there to have been aggravating factors, the employment tribunal could order the employer to pay a penalty to the Secretary of State. The amount of the penalty would be up to 50 per cent of any financial award made in favour of the claimant and subject to a £100 minimum and a £5,000 limit. In the event that an employer paid 50 per cent of the penalty within 21 days, the penalty would be discharged. ’

Aggravating factors’ might include: Where the action was deliberate or committed with malice, the employer was an organisation with a dedicated human resources team, or where the employer has repeatedly breached the employment right concerned. The employment tribunal may be less likely to find that the employer’s behaviour in breaching the law had aggravating features where an employer has been in operation for only a short period of time, is a micro businesses, has only a limited human resources function, or the breach was a genuine mistake.

Originally Posted by Almaboy

Can some of you clever lot have a look at the statement below?


Overtime
I am writing to confirm 0n 5th Jan 2012 you were issued with an offer letter for the role of Duty Manager complete with a management statement of particular.
Your salary takes into account the fact that we will need you to work as many hours as you need to fulfill your role requirements and meet the needs of the business without any additional pay’
You confirm that if Regulation 4(1) of the Wrking Time Regulations 1998 applies to you, you agree to opt out of Regulation 4(1), although you may terminate this opt out at any time by giving us no less than 3 months’ written notice.
You currently have been receiving overtime payments. This letter is to confirm that you are not entitled to receive these payments, however we will not be looking to retrieve theses payments.
Please be advised that no further payments will be paid to you with regards to overtime.

to explain, there are 5 of who Operations Manager for a big UK FM outfit. We cover a good shift pattern but one of our number is now on long term leave pending investigations and delivery. Does the wording in this sound like we are expected to work whatever hours/days they tell us? is that fair? I just want a strangers perspective on this as they have been paying us overtime based on our manager signing it off.

If i havent signed the working time directive to 'opt out' how do i do this?

Can anyone advise on this?

AlmaBoy (thanks in advance)

Is this contractual clause a unilateral variation to an existing contract of employment or does your existing contract of employment contain a unilateral variation clause?

If it is the former, then it has the same contractual force as your unilateral demand to your employer to provide you with a 30% pay increase or face the consequences! If it is the latter, then it is subject to certain condition relating to notice.

OK - as I read it:

the OP was offered promotion in January, to a management post - presumably, prior to this, his contractual T&C's came with an overtime payment

the promotion came with a change to his T&C's, saying that as a manager he was now no longer entitled to overtime payments.

without knowing whether the job offer from January actually said this, we're all pretty screwed as we cannot know whether they actually said this then, and cocked up by paying the overtime, or whether they're trying to move the goal posts.

if the op can post the letter from January, we'll know a lot more - however, at its most basic, if they told you about new T&C's/variation of contract back in the January letter, then you'll probably have to suck it up - if they're only telling you now, you may have a strong case.

edit - regardless, he can always issue the withdrawal from the 48 hour get out - however experience has taught me that its pretty tough to actually breach the 48hour a week rule when its averaged out over a period of time including rest days, weekends etc.