CPA Bulletin

One of my employees has approachedme regarding maternity leave. More specifically, what is the earliest date she can begin her maternity leave. Can you let me know? The earliest the lady can begin her maternity leave is the Sunday beginning of the eleventh week before her expected week of childbirth. She is free to choose which day she starts her leave, provided she gives 28 days’ notice to her employer. q A www.cpa.uk.net CPA Bulletin > February 2020 41 Q&As: 2 Does a supplier’s individual Terms and Conditions which they have sent to us supersede CPA’s Model Conditions? How does the relationship work? The situation on which set of terms and conditions prevail over a particular hire agreement will depend on which set of terms is sent to the other party last. This comes under the precedent of ‘Battle of the Forms’ - Butler Machine Tool Co Ltd v Ex-Cell-O Corp (England) Ltd [1977]. So, if a customer sends you a Purchase Order (PO) or some other documentation with their terms attached/included after you’ve sent them the CPA’s Model Conditions, then the customer’s terms will take precedence. This would equally apply in reverse, with you sending the Model Conditions after receiving the customer’s terms. On occasions, the customer will insist you abide by their terms if you want to contract with them. If this does occur, then you’d need to make a commercial decision whether to accept them or not. If you did decide to accept them, then this comes with risks, i.e. your exposure to liabilities such as consequential losses may increase, or, the customer may not be responsible for any damage or loss to plant supplied. You may also find that your insurance provider will only cover you if you only hire out under the CPA terms. You should always speak to your insurance broker before ever accepting the other party’s terms and conditions. q A We hired out an excavator under the Model Conditions to one of our customers, whose driver overturned the machine on site with the engine running. We managed to get the machine back to our premises for inspection and have had to replace the engine as it was uneconomical to repair. Our customer is refusing to pay for the new replacement engine as he states that under clause 13(b) of CPA’s Terms and Conditions, that we should be deducting an amount for fair wear and tear. Am I right in saying that regardless of the age of the machine, in this case it was a few years old, a replacement engine has had to be fitted and the customer is liable to reimburse us at the full replacement cost? Under the circumstances of the age of the machine, the customer would only be liable for the market value for the engine, despite the customer’s driver causing the problem. If you would prefer, you can insist the customer finds a replacement engine which reflects the condition of your engine prior to the damage it sustained, rather than being reimbursed a monetary sum. The cost of fitting the replacement engine would still be charged to the customer. q A Several of my workforce have indicated that they would like the ‘flu jab’. Am I obliged to pay them while they have it done? You’re not obliged to give any of your workforce time off - whether paid or unpaid - so that they can get the jab. If, however, you feel it beneficial that the workforce receives the flu jab, which could help reduce absence due to sickness during the ‘flu season’, then youmay wish to consider it. Note that the procedure takes less than 15 minutes and is available frommany pharmacies, including those in supermarkets with extended opening hours. Some categories of workers should receive the flu jab as a precaution - either due to their age, or because they suffer from certain conditions. The employee themselves should be aware of this. q A Do the CPA’s Model Conditions stipulate a daily minimum number of hours for operated plant? Within clause 1(h) of the CPA’s Model Conditions, it states that a working day is essentially 8 hours Monday to Thursday and 7 hours on a Friday. The Hire Contract Formmay state, for example, that Friday is charged at 8 hours as well. If your dispute is related to the number of hours the machine worked on a particular day, and it was used for half the day, and the Hirer only wants to pay for half a day’s hire, then you should refer the Hirer to the third line in clause 25 of the Model Conditions, which states the following: “…if the machine is used for part of the day, then the Hirer will be charged for a full working day.” q A