Court action threat at bonus clawback

by John d'Arcy



Union anger over bonus clawback has flared up again. Top contractors are being threatened with prosecution in the County Court for alleged breach of contract following claims that they are "not abiding by the spirit and letter" of the building and civil engineering pay agreement.

The unions claim contractors are improperly introducing bonus clawback arrangements to offset the cost of this year's 13.8 per cent increase in the craft basic rate.

Firms being targeted for action include Clugston, Hall and Tawse, Baggeley, and Gleeson.

George Brumwell, general secretary of Ucatt, said this week that his union was considering whether to pursue the issue through Industrial Tribunals or through the County Court.

He said: "Claims for unlawful deduction from wages can be made to tribunals under the Wages Act. Moreover, the union's solicitors are recommending that groups of members could claim together in the County Court for breach of contract. If the union is successful, the employer would also face paying the legal costs."

Brumwell said the companies in question were apparently acting on the advice of the Construction Confederation. The confederation is confident that its members are on sound legal ground. It is supporting Clugston in 25 test cases that have been submitted to an Industrial Tribunal.

The Ucatt leader recalled that last year's pay offer had originally included a bonus clawback arrangement.

He continued: "The offer set out in detail the mechanism for effecting this bonus clawback. Following opposition from the trade union side, the employers withdrew entirely the proposal for bonus clawback. Ultimately, settlement was reached on a three-year pay and conditions agreement that contained no provision whatsoever for bonus clawback.

"Thus, it is the union's clear view that, outside of customary local negotiations on varying productivity-based bonus schemes, reductions in bonus earnings intended to offset the annual basic wage increase are in breach of the agreement."

Brumwell added that his union's view was that the national agreement was incorporated into contracts of employment either explicitly of implicitly through custom and practice. Thus "the imposition of bonus clawback represents a breach of our members' contracts of employment."

Ucatt members hit by clawback have been advised by the union to write individually to their employer confirming that they are working under protest, that they believe there has been a breach of contract, and that they are not prejudicing their rights to make a claim against the contractor.

Brumwell further claimed that a number of companies are also seeking to deny general operatives the appropriate new skill rate under the grading system which now replaces plus rates. "There is a continuing contractual obligation on behalf of the employer to pay the appropriate rate of pay for work undertaken," he said. "Again, claims can be made under the Wages Act or for breach of contract in the County Court."