UKSC and JCPC electronic bundle sample - The Supreme Court

I.CA
273
A
[COURT OF APPEAL]
B
c
o
E
F
o
TARMAC ROADSTONE HOLDINGS LTD. P. PEACOCK
ANO OrHERs
1973 Feb. 26, 27 Lord Oenning M.R., Stamp and James WJ.
Mmter and Se"'Gn.r-Redundancy-R~dundGncy paymenll­
CalCldQlion 0/ overtime-ContrdCl,oj employrtllmt lor 40 Irour
week-NatiolUll conditions requiring employee 10 work overrime-No
obligation on employer ID provide overlime-Emplayu
wOI'king 57 hours-Whether overtime to be disregarded
in calculating ,. normal working hour,"--c01ltracl8 01 Employment
Ael 1963 (c. 49), Seh. 2. pGr•. 1 (I) (2) ,
The applic:ants were employed in the slag industry under
contracts incorporatina the national agreemeut colKiitlons for
that industry. The conditions provided for a normal wortAng
week of 40 bours actual work but tbat all workers" shan work
overtime in accordance: with the demands of the industry during
the Dormal week and/of at weekends:' 'Tbey reBUlarly worked
at least 51 bours and a seven day week. In 1957 they were
made redunda.nt. On their applications to the industrial tribunal
for redundancy payments calculated in accordaace with
Schedule 2. paragrapb I, of tbe Contracts of Employment Act
1963. 1 the industrial tribunal inferred from tbe facts tbat when
they were engaged the national 40 hour week agreement was
consensually varied so that they were bound as a matter of
contract to wort a seven day week of 57 boursi and the Uibunal
awarded them redundancy paymenla on that basis. The
National IDduatrial Relations Court upbcld lbe award.
On appeal by the employers:-
Held. aDowi... Ibe appeal, that on tbe proper constrnclio.
of paragraph I (I) and (2) of Schedule 2 to the Act of 1963,
the employees could not have their overtime coated iD tor the
purpose of redundancy payments unless a fixed amount of
overtime had been agreed obllptory on bolb oidea and made
a term of Ibe contract of employmcnl Aceordi.g1y, tbe
•• normal workiDI boun tI were the 40 hours in the national
......"enl and fen wilbin subparagrapb (I) of paragraph I.
Rodptl'h Dorman LoIII (Conlrocting) Lld. v. SUI/on [1972]
I.C.R. 477, N.I.R.e. approved. .
,(rmslrtJIIg Whilwtmh Rolls Lld. v. MWlard [1971] 1 An
B.R. 598, D.e. ""t,ined.
Per CurlOlII. aragraph I (2) applies nnly where the over·
time requirement is obligatory OD both worker aDd employer.
1 Conlracts 01 Employmenl Act 1963, Sch. 2, pora. I: "(I! Par Ibe purp....
of this Schedule the CUll "ben the... are nonaal w~ boun IDelude casu where
lhe emplO)'CO 11 catlded to overtime pay wben OIllploWd lor mOR lbaD • _
Dumber 01 bawa 10 a _ or olber priod, and, suhjccl to .be loIlowi.o~ sub·
parapt,ph, in. tbOlO CI.IeI tbat fixed number of hauD (ill tbil p&ralraph referred
to as I the mpnber' of bowl without overtime ') 1hIIl· be tile DOI'IIIaI WOf_1dna hoUR.
(2) 11 in .uob a.... (a) the coDlnCl of cmP~t liDo the number. or lb.
llUDimum number, of houn of em,loyment iD tb' IIld week or other period (wbetber
H or not it also provides far the redUction of that Dumber or minimum number of
boon ill certaiD ~), and (6) that number or minimum Dumber of houtl
exceeds the nwn'ber of hours without overtime. tbat Dumber or minimum number of
houn (and not the number 01 bOWl wlthout overtime) shall be tbe normal worklna
boos..."
MS MS Page Number 785