¶ 10. (dissenting). I respectfully dissent from the majority opinion because I would affirm the trial court's decision. The analysis is quite simple. The Wis. Stat. § 109.03(1) thirty-one day payment rule does not apply when employees are "covered under a valid collective bargaining agreement establishing a different frequency for wage payments ...." Wis. Stat. § 109.03(l)(a).
¶ 11. It is undisputed here that the employees are covered under valid collective bargaining agreements. The question then is whether the collective bargaining agreements establish a different frequency for wage payments. The City contends that collective bargaining agreements do not establish a time different than the thirty-one day rule in chapter 109 and, the unions conversely argue that the collective bargaining units impose a shorter payment frequency.
¶ 12. Resolution of this conflict is not complicated. Both collective bargaining units involved here contain a provision which states: "In the event that the provisions of this Agreement or application... conflict[] with the ... provisions of the Milwaukee City Charter... this Agreement shall be subject to such provisions." The Milwaukee, Wis., City Charter Ordinance § 5-06 provides: "Officers and employes of the city of Milwaukee shall be paid bi-weekly."
¶ 13. These two provisions working together result in the logical conclusion that § 5-06 controls the frequency of wage payments for the employees, and requires that all wages must be paid twelve days after the end of the period in which such wages are earned. Let me explain.
*308¶ 14. The unions collectively bargained for agreements which included a provision stating that the Milwaukee City Charter Ordinances applied if any conflict in the collective bargaining agreement, or in the application of the collective bargaining agreement, occurred. This case presents a conflict in the application of the collective bargaining agreements. The conflict is that the City contends the collective bargaining agreements do not have to comply with § 5-06, requiring all wages to be paid bi-weekly. The City, in essence, then is applying the collective bargaining agreements to permit overtime wages to be paid within thirty-one days or monthly. When there is a conflict in application of the collective bargaining agreements, the Milwaukee City Charter Ordinance trumps the collective bargaining agreement.
¶ 15. That brings us directly to the language of § 5-06 — wages shall be paid bi-weekly. The ordinance does not distinguish between base pay, straight pay, or overtime pay.1 Rather, it says that the employees shall be paid bi-weekly. Payment can only be interpreted to include all wages the employee earned in the period to which that bi-weekly check applies. Based on this analysis, I conclude that the thirty-one day provision of chapter 109 was collectively bargained away by the City. The error in the majority's reasoning lies in its failure to recognize or acknowledge that a party who otherwise is enabled to enforce a statutory right may relinquish that power by contract, which is what happened in this *309case. See Faust v. Ladysmith-Hawkins Sch. Sys., 88 Wis. 2d 525, 532, 277 N.W.2d 303 (1979). In fact, chapter 109 acknowledges an employee's right under a collective bargaining agreement to establish a different frequency for payments other than the thirty-one days set forth in the statute. Wis. Stat. § 109.03(l)(a). If the result of collective bargaining has produced an effect that lacks- wisdom, the proper forum for corrective action is not this court but, instead, the next collective bargaining agreement or the legislature.
¶ 16. The position in this dissent is further supported by customary practice. With the exception of occasional mistake, error, or computer glitches, the City's past practice has been to pay overtime to the union employees in the pay period immediately following the period in which it was earned. It has been the customary practice to make overtime payments on the twelfth day in accord with the bi-weekly language of § 5-06, rather than the thirty-one day rule of chapter 109. The United States Supreme Court and the Wisconsin Supreme Court have both recognized the principle of incorporating past practice into a negotiated collective bargaining agreement. See United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578-81 (1960); Milwaukee Prof'l Firefighters, Local 215 v. City of Milwaukee, 78 Wis. 2d 1, 22-24, 253 N.W.2d 481 (1977).
¶ 17. Here, the record clearly reflects that the past practice was to pay overtime bi-weekly in the pay period immediately following the period in which it was earned. The City acknowledged this fact during the summary judgment hearing. Inevitably, there are exceptions to the customary practice, such as when employees make mistakes on the time slips, when the data technicians enter the data erroneously, or when the *310computer malfunctions. Nevertheless, the exceptions cannot operate to supplant the general rule that overtime has customarily been paid consistent with the bi-weekly requirements of § 5-06.
¶ 18. In sum, then, I conclude that the trial court's analysis was correct. I would affirm.
It is clear that the ordinance includes all payments and is not limited to straight time for two reasons. First, as noted, the ordinance refers in general to an employee's pay. It does not exclude overtime. Second, wages are defined by statute to include all types of payment, including overtime. See Wis. Stat. § 109.01(3).