Day 310 - 04 Dec 96 - Page 18


     
     1   MR. JUSTICE BELL:   What I have a difficulty with at the moment
     2        is how it can be said that the overtime provision is dealt
     3        with indirectly and fairly by the matter at 2B, which is at
     4        the top of page 15 of your submissions.
     5
     6   MR. RAMPTON:   The performance related pay rise.
     7
     8   MR. JUSTICE BELL:   It is early and regular performance related
     9        pay rises.  Is it not fair, if this a genuine pay for
    10        performance system, to get your extra pence per hour if you
    11        have done well and to get your overtime?  I mean, one of
    12        the thrusts of the Defendants' case is that it is fair, as
    13        one of your witnesses said, to be paid an overtime rate,
    14        and if you do not you are cadging back part of your
    15        performance related pay of which you are so proud.  Is that
    16        not so?
    17
    18   MR. RAMPTON:   I do not see that that is right.  If the employee
    19        has a statutory entitlement, then he has a right under the
    20        law to get his statutory entitlement.  If he is getting
    21        that anyway, and perhaps a bit more besides, I do not see
    22        that that is unfair, no.  I quite agree it could have been
    23        more generous.
    24
    25   MR. JUSTICE BELL:  Suppose I were to agree with your witness
    26        that it is fair to pay a bit over the odds after your 39
    27        hours -- it does not matter whether it is 39 hours in one
    28        industry and 42 in another and 35 in another, whatever your
    29        basic week is -- once you go beyond it you get a higher
    30        rate of pay?  That is fair.
    31
    32   MR. RAMPTON:   I am quite -- what is the word -- I am quite
    33        unfazed by this.  I have conceded in the course of this
    34        document the one area, and this is it, where I think that
    35        McDonald's pre-1986 are vulnerable to criticism.  I have
    36        said so.  I have said that it is, or would be, something of
    37        a black mark if they had not had those transactions or
    38        exchanges with the Wages Inspectorate.  That may not cure
    39        the problem, because the fact would remain that there would
    40        have been people, as one can see if one looks at
    41        Mr. Alimi's calculations, who were essentially short
    42        changed not because McDonald's were trying to cheat them,
    43        or anything like that, but simply because they did not get
    44        what they should have had.
    45
    46   MR. JUSTICE BELL:  It is not just a question of legality, is
    47        it?  I have to form a view on whether the pay is bad and
    48        whether the conditions are bad, regardless of what the
    49        legal minimum are.
    50 
    51   MR. RAMPTON:   Certainly.  If your Lordship agrees with the 
    52        witness who said he thinks he ought to get more when he has 
    53        worked more than 39 hours a week, that is a respect in
    54        which -- but the only respect in which -- it could be said
    55        not necessarily that McDonald's paid badly, but that it is
    56        not as good as it might be.  To use your Lordship's word,
    57        it might be fairer if they got both.
    58
    59   MR. JUSTICE BELL:   Then the top of page 17, I do not know
    60        whether I ever heard -- if I did I have forgotten -- what

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