(1) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 23 above.
(2) Subject to the following provisions of this section, the provisions of—
(a) sections 48(2) to (4A) and 49 of the Employment Rights Act 1996 (complaints to employment tribunals and remedies), or
(b) in relation to Northern Ireland, Articles 71(2) to (4) and 72 of the Employment Rights (Northern Ireland) Order 1996 (complaints to industrial tribunals and remedies),
shall apply in relation to a complaint under this section as they apply in relation to a complaint under section 48 of that Act or Article 71 of that Order (as the case may be), but taking references in those provisions to the employer as references to the employer within the meaning of section 23(1) above.
(3) Where—
(a) the detriment to which the worker is subjected is the termination of his worker’s contract, but
(b) that contract is not a contract of employment,
any compensation awarded under section 49 of the Employment Rights Act 1996 or Article 72 of the Employment Rights (Northern Ireland) Order 1996 by virtue of subsection (2) above must not exceed the limit specified in subsection (4) below.
(4) The limit mentioned in subsection (3) above is the total of—
(a) the sum which would be the basic award for unfair dismissal, calculated in accordance with section 119 of the Employment Rights Act 1996 or Article 153 of the Employment Rights (Northern Ireland) Order 1996 (as the case may be), if the worker had been an employee and the contract terminated had been a contract of employment; and
(b) the sum for the time being specified in section 124(1) of that Act or Article 158(1) of that Order (as the case may be) which is the limit for a compensatory award to a person calculated in accordance with section 123 of that Act or Article 157 of that Order (as the case may be).
(5) Where the worker has been working under arrangements which do not fall to be regarded as a worker’s contract for the purposes of—
(a) the Employment Rights Act 1996, or
(b) in relation to Northern Ireland, the Employment Rights (Northern Ireland) Order 1996,
he shall be treated for the purposes of subsections (3) and (4) above as if any arrangements under which he has been working constituted a worker’s contract falling within section 230(3)(b) of that Act or Article 3(3)(b) of that Order (as the case may be).
25 Right of employee not to be unfairly dismissed: Great Britain.
(1) After section 104 of the Employment Rights Act 1996 (assertion of statutory right) there shall be inserted—
The national minimum wage.
104A (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—
(a) any action was taken, or was proposed to be taken, by or on behalf of the employee with a view to enforcing, or otherwise securing the benefit of, a right of the employee’s to which this section applies; or
(b) the employer was prosecuted for an offence under section 31 of the National Minimum Wage Act 1998 as a result of action taken by or on behalf of the employee for the purpose of enforcing, or otherwise securing the benefit of, a right of the employee’s to which this section applies; or
(c) the employee qualifies, or will or might qualify, for the national minimum wage or for a particular rate of national minimum wage.
(2) It is immaterial for the purposes of paragraph (a) or (b) of subsection (1) above—
(a) whether or not the employee has the right, or
(b) whether or not the right has been infringed,
but, for that subsection to apply, the claim to the right and, if applicable, the claim that it has been infringed must be made in good faith.
(3) The following are the rights to which this section applies—
(a) any right conferred by, or by virtue of, any provision of the National Minimum Wage Act 1998 for which the remedy for its infringement is by way of a complaint to an employment tribunal; and
(b) any right conferred by section 17 of the National Minimum Wage Act 1998 (worker receiving less than national minimum wage entitled to additional remuneration).
(2) In section 105 of that Act (redundancy as unfair dismissal) in subsection (1)(c) (which refers to any of subsections (2) to (7) of that section applying) for “(7)” there shall be substituted “ (7A) ” and after subsection (7) there shall be inserted—
(7A) This subsection applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in subsection (1) of section 104A (read with subsection (2) of that section).
(3) In section 108 of that Act (exclusion of right: qualifying period of employment) in subsection (3) (cases where no qualifying period is required) the word “or” at the end of paragraph (g) shall be omitted and after that paragraph there shall be inserted—
(gg) subsection (1) of section 104A (read with subsection (2) of that section) applies, or
.
(4) In section 109 of that Act (exclusion of right: upper age limit) in subsection (2) (cases where upper age limit does not apply) the word “or” at the end of paragraph (g) shall be omitted and after that paragraph there shall be inserted—
(gg) subsection (1) of section 104A (read with subsection (2) of that section) applies, or
.
26 Right of employee not to be unfairly dismissed: Northern Ireland.
(1) After Article 135 of the Employment Rights (Northern Ireland) Order 1996 (assertion of statutory right) there shall be inserted—
The national minimum wage.
135A (1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that—
(a) any action was taken, or was proposed to be taken, by or on behalf of the employee with a view to enforcing, or otherwise securing the benefit of, a right of the employee’s to which this Article applies; or
(b) the employer was prosecuted for an offence under section 31 of the National Minimum Wage Act 1998 as a result of action taken by or on behalf of the employee for the purpose of enforcing, or otherwise securing the benefit of, a right of the employee’s to which this Article applies; or
(c) the employee qualifies, or will or might qualify, for the national minimum wage or for a particular rate of national minimum wage.
(2) It is immaterial for the purposes of sub-paragraph (a) or (b) of paragraph (1)—
(a) whether or not the employee has the right, or
(b) whether or not the right has been infringed;
but, for that paragraph to apply, the claim to the right and, if applicable, the claim that it has been infringed must be made in good faith.
(3) The following are the rights to which this Article applies—
(a) any right conferred by, or by virtue of, any provision of the National Minimum Wage Act 1998 for which the remedy for its infringement is by way of a complaint to an industrial tribunal, and
(b) any right conferred by section 17 of the National Minimum Wage Act 1998 (worker receiving less than national minimum wage entitled to additional remuneration).
(2) In Article 137 of that Order (redundancy as unfair dismissal) after paragraph (6) there shall be inserted—
(6A) This paragraph applies if the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was one of those specified in paragraph (1) of Article 135A (read with paragraph (2) of that Article).
(3) In Article 140 of that Order (exclusion of right: qualifying period of employment) in paragraph (3) (cases where no qualifying period is required) after sub-paragraph (f) there shall be inserted—
(ff) paragraph (1) of Article 135A (read with paragraph (2) of that Article) applies,
.
(4) In Article 141 of that Order (exclusion of right: upper age limit) in paragraph (2) (cases where upper age limit does not apply) after sub-paragraph (f) there shall be inserted—
(ff) paragraph (1) of Article 135A (read with paragraph (2) of that Article) applies,
.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) In section 4 of the Employment Tribunals Act 1996 (composition of employment tribunal) in subsection (3) (which specifies proceedings to be heard by the chairman alone) after paragraph (ca) there shall be inserted—
(cc) proceedings on a complaint under section 11 of the National Minimum Wage Act 1998;
(cd) proceedings on an appeal under section 19 or 22 of the National Minimum Wage Act 1998;
.
(2) In Article 6 of the Industrial Tribunals (Northern Ireland) Order 1996 (composition of industrial tribunal in Northern Ireland) in paragraph (3) (which specifies proceedings to be heard by the chairman alone) after sub-paragraph (b) there shall be inserted—
(bb) proceedings on a complaint under section 11 of the National Minimum Wage Act 1998;
(bc) proceedings on an appeal under section 19 or 22 of the National Minimum Wage Act 1998;
.
(1) Where in any civil proceedings any question arises as to whether an individual qualifies or qualified at any time for the national minimum wage, it shall be presumed that the individual qualifies or, as the case may be, qualified at that time for the national minimum wage unless the contrary is established.
(2) Where—
(a) a complaint is made—
(i) to an employment tribunal under section 23(1)(a) of the Employment Rights Act 1996 (unauthorised deductions from wages), or
(ii) to an industrial tribunal under Article 55(1)(a) of the Employment Rights (Northern Ireland) Order 1996, and
(b) the complaint relates in whole or in part to the deduction of the amount described as additional remuneration in section 17(1) above,
it shall be presumed for the purposes of the complaint, so far as relating to the deduction of that amount, that the worker in question was remunerated at a rate less than the national minimum wage unless the contrary is established.
(3) Where in any civil proceedings a person seeks to recover on a claim in contract the amount described as additional remuneration in section 17(1) above, it shall be presumed for the purposes of the proceedings, so far as relating to that amount, that the worker in question was remunerated at a rate less than the national minimum wage unless the contrary is established.
In section 21(1) of the Employment Tribunals Act 1996 (appeal from employment tribunal to Employment Appeal Tribunal on question of law arising under or by virtue of the enactments there specified) after paragraph (f) there shall be inserted—
(ff) the National Minimum Wage Act 1998, or
.
(1) In section 18 of the Employment Tribunals Act 1996 (conciliation) in subsection (1) (which specifies the proceedings and claims to which the section applies) after paragraph (d) there shall be inserted—
(dd) under or by virtue of section 11, 18, 20(1)(a) or 24 of the National Minimum Wage Act 1998;
.
(2) In Article 20 of the Industrial Tribunals (Northern Ireland) Order 1996 (conciliation) in paragraph (1) (which specifies the proceedings and claims to which the Article applies) after sub-paragraph (c) there shall be inserted—
(cc) under or by virtue of section 11, 18, 20(1)(b) or 24 of the National Minimum Wage Act 1998;
.
(1) If the employer of a worker who qualifies for the national minimum wage refuses or wilfully neglects to remunerate the worker for any pay reference period at a rate which is at least equal to the national minimum wage, that employer is guilty of an offence.
(2) If a person who is required to keep or preserve any record in accordance with regulations under section 9 above fails to do so, that person is guilty of an offence.
(3) If a person makes, or knowingly causes or allows to be made, in a record required to be kept in accordance with regulations under section 9 above any entry which he knows to be false in a material particular, that person is guilty of an offence.
(4) If a person, for purposes connected with the provisions of this Act, produces or furnishes, or knowingly causes or allows to be produced or furnished, any record or information which he knows to be false in a material particular, that person is guilty of an offence.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) Where the commission by any person of an offence under subsection (1) or (2) above is due to the act or default of some other person, that other person is also guilty of the offence.
(7) A person may be charged with and convicted of an offence by virtue of subsection (6) above whether or not proceedings are taken against any other person.
(8) In any proceedings for an offence under subsection (1) or (2) above it shall be a defence for the person charged to prove that he exercised all due diligence and took all reasonable precautions to secure that the provisions of this Act, and of any relevant regulations made under it, were complied with by himself and by any person under his control.
(9) A person guilty of an offence under this section shall be liable
(a) on conviction on indictment, to a fine, or
(b) on summary conviction, to a fine not exceeding the statutory maximum.
(1) This section applies to any offence under this Act.
(2) If an offence committed by a body corporate is proved—
(a) to have been committed with the consent or connivance of an officer of the body, or
(b) to be attributable to any neglect on the part of such an officer,
the officer as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(3) In subsection (2) above “officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.
(4) If the affairs of a body corporate are managed by its members, subsection (2) above applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(5) If an offence committed by a partnership in Scotland is proved—
(a) to have been committed with the consent or connivance of a partner, or
(b) to be attributable to any neglect on the part of a partner,
the partner as well as the partnership is guilty of the offence and liable to be proceeded against and punished accordingly.
(6) In subsection (5) above, “partner” includes a person purporting to act as a partner.
34 Agency workers who are not otherwise “workers”.
(1) This section applies in any case where an individual (“the agency worker”)—
(a) is supplied by a person (“the agent”) to do work for another (“the principal”) under a contract or other arrangements made between the agent and the principal; but
(b) is not, as respects that work, a worker, because of the absence of a worker’s contract between the individual and the agent or the principal; and
(c) is not a party to a contract under which he undertakes to do the work for another party to the contract whose status is, by virtue of the contract, that of a client or customer of any profession or business undertaking carried on by the individual.
(2) In a case where this section applies, the other provisions of this Act shall have effect as if there were a worker’s contract for the doing of the work by the agency worker made between the agency worker and—
(a) whichever of the agent and the principal is responsible for paying the agency worker in respect of the work; or
(b) if neither the agent nor the principal is so responsible, whichever of them pays the agency worker in respect of the work.
(1) In determining for the purposes of this Act whether a home worker is or is not a worker, section 54(3)(b) below shall have effect as if for the word “personally” there were substituted “ (whether personally or otherwise) ”.
(2) In this section “home worker” means an individual who contracts with a person, for the purposes of that person’s business, for the execution of work to be done in a place not under the control or management of that person.
(1) Subject to section 37 below, the provisions of this Act have effect in relation to Crown employment and persons in Crown employment as they have effect in relation to other employment and other workers.
(2) In this Act, subject to section 37 below, “Crown employment” means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by statutory provision.
(3) For the purposes of the application of the other provisions of this Act in relation to Crown employment in accordance with subsection (1) above—
(a) references to an employee or a worker shall be construed as references to a person in Crown employment;
(b) references to a contract of employment or a worker’s contract shall be construed as references to the terms of employment of a person in Crown employment; and
(c) references to dismissal, or to the termination of a worker’s contract, shall be construed as references to the termination of Crown employment.
(1) A person serving as a member of the naval, military or air forces of the Crown does not qualify for the national minimum wage in respect of that service.
(2) Section 36 above applies to employment by an association established for the purposes of Part XI of the Reserve Forces Act 1996, notwithstanding anything in subsection (1) above.
(1) A person (not being a person to whom section 37(1) above applies) who—
(a) is a member of any of the forces specified in subsection (2) below, and
(b) assists the activities of those forces otherwise than in the course of Crown employment,
does not qualify for the national minimum wage in respect of anything done by him in so assisting those activities.
(2) The forces referred to in subsection (1) above are—
(a) the Combined Cadet Force;
(b) the Sea Cadet Corps;
(c) the Army Cadet Force;
(d) the Air Training Corps.
(1) Apart from section 21 above, the provisions of this Act have effect in relation to employment as a relevant member of the House of Lords staff as they have effect in relation to other employment.
(2) Nothing in any rule of law or the law or practice of Parliament prevents a relevant member of the House of Lords staff from bringing before the High Court or the county court any claim under this Act.
(3) In this section “relevant member of the House of Lords staff” means any person who is employed under a worker’s contract with the Corporate Officer of the House of Lords.
(1) Apart from section 21 above, the provisions of this Act have effect in relation to employment as a relevant member of the House of Commons staff as they have effect in relation to other employment.
(2) Nothing in any rule of law or the law or practice of Parliament prevents a relevant member of the House of Commons staff from bringing before the High Court or the county court any claim under this Act.
(3) In this section “relevant member of the House of Commons staff” means any person—
(a) who was appointed by the House of Commons Commission; or
(b) who is a member of the Speaker’s personal staff.
For the purposes of this Act, an individual employed to work on board a ship registered in the United Kingdom under Part II of the Merchant Shipping Act 1995 shall be treated as an individual who under his contract ordinarily works in the United Kingdom unless—
(a) the employment is wholly outside the United Kingdom; or
(b) the person is not ordinarily resident in the United Kingdom;
and related expressions shall be construed accordingly.
41 Power to apply Act to individuals who are not otherwise “workers”.
The Secretary of State may by regulations make provision for this Act to apply, with or without modifications, as if—
(a) any individual of a prescribed description who would not otherwise be a worker for the purposes of this Act were a worker for those purposes;
(b) there were in the case of any such individual a worker’s contract of a prescribed description under which the individual works; and
(c) a person of a prescribed description were the employer under that contract.
(1) In this section “offshore employment” means employment for the purposes of activities—
(a) in the territorial waters of the United Kingdom, or
(b) connected with the exploration of the sea-bed or subsoil, or the exploitation of their natural resources, in the United Kingdom sector of the continental shelf, or
(c) connected with the exploration or exploitation, in a foreign sector of the continental shelf, of a cross-boundary petroleum field.
(2) Her Majesty may by Order in Council provide that the provisions of this Act apply, to such extent and for such purposes as may be specified in the Order (with or without modification), to or in relation to a person in offshore employment.
(3) An Order in Council under this section—
(a) may provide that all or any of the provisions of this Act, as applied by such an Order in Council, apply—
(i) to individuals whether or not they are British subjects, and
(ii) to bodies corporate whether or not they are incorporated under the law of a part of the United Kingdom,
and apply even where the application may affect their activities outside the United Kingdom,
(b) may make provision for conferring jurisdiction on any court or class of court specified in the Order in Council, or on employment tribunals, in respect of offences, causes of action or other matters arising in connection with offshore employment,
(c) may (without prejudice to subsection (2) above) provide that the provisions of this Act, as applied by the Order in Council, apply in relation to any person in employment in a part of the areas referred to in subsection (1)(a) and (b) above,
(d) may exclude from the operation of section 3 of the Territorial Waters Jurisdiction Act 1878 (consents required for prosecutions) proceedings for offences under this Act in connection with offshore employment,
(e) may provide that such proceedings shall not be brought without such consent as may be required by the Order in Council,
(f) may (without prejudice to subsection (2) above) modify or exclude the operation of sections 1(2)(b) and 40 above.
(4) Any jurisdiction conferred on a court or tribunal under this section is without prejudice to jurisdiction exercisable apart from this section by that or any other court or tribunal.
(5) In this section—
“cross-boundary petroleum field” means a petroleum field that extends across the boundary between the United Kingdom sector of the continental shelf and a foreign sector of the continental shelf,
“foreign sector of the continental shelf” means an area outside the territorial waters of any state, within which rights with respect to the sea-bed and subsoil and their natural resources are exercisable by a state other than the United Kingdom,
“petroleum field” means a geological structure identified as an oil or gas field by the Order in Council concerned, and
“United Kingdom sector of the continental shelf” means the area designated under section 1(7) of the Continental Shelf Act 1964.
A person—
(a) employed as master, or as a member of the crew, of a fishing vessel, and
(b) remunerated, in respect of that employment, only by a share in the profits or gross earnings of the vessel,
does not qualify for the national minimum wage in respect of that employment.
(1) A worker employed by a charity, a voluntary organisation, an associated fund-raising body or a statutory body does not qualify for the national minimum wage in respect of that employment if he receives, and under the terms of his employment (apart from this Act) is entitled to,—
(a) no monetary payments of any description, or no monetary payments except in respect of expenses—
(i) actually incurred in the performance of his duties; or
(ii) reasonably estimated as likely to be or to have been so incurred; and
(b) no benefits in kind of any description, or no benefits in kind other than the provision of some or all of his subsistence or of such accommodation as is reasonable in the circumstances of the employment.
(1A) For the purposes of subsection (1)(a) above, expenses which—
(a) are incurred in order to enable the worker to perform his duties,
(b) are reasonably so incurred, and
(c) are not accommodation expenses,
are to be regarded as actually incurred in the performance of his duties.
(2) A person who would satisfy the conditions in subsection (1) above but for receiving monetary payments made solely for the purpose of providing him with means of subsistence shall be taken to satisfy those conditions if—
(a) he is employed to do the work in question as a result of arrangements made between a charity acting in pursuance of its charitable purposes and the body for which the work is done; and
(b) the work is done for a charity, a voluntary organisation, an associated fund-raising body or a statutory body.
(3) For the purposes of subsection (1)(b) above—
(a) any training (other than that which a person necessarily acquires in the course of doing his work) shall be taken to be a benefit in kind; but
(b) there shall be left out of account any training provided for the sole or main purpose of improving the worker’s ability to perform the work which he has agreed to do.
(4) In this section—
“associated fund-raising body” means a body of persons the profits of which are applied wholly for the purposes of a charity or voluntary organisation;
“charity” means a body of persons, or the trustees of a trust, established for charitable purposes only;
“receive”, in relation to a monetary payment or a benefit in kind, means receive in respect of, or otherwise in connection with, the employment in question (whether or not under the terms of the employment);
“statutory body” means a body established by or under an enactment (including an enactment comprised in Northern Ireland legislation) and includes the Children’s Panel;
“subsistence” means such subsistence as is reasonable in the circumstances of the employment in question, and does not include accommodation;
“voluntary organisation” means a body of persons, or the trustees of a trust, which is established only for charitable purposes (whether or not those purposes are charitable within the meaning of any rule of law), benevolent purposes or philanthropic purposes, but which is not a charity.
44A Religious and other communities: resident workers.
(1) A residential member of a community to which this section applies does not qualify for the national minimum wage in respect of employment by the community.
(2) Subject to subsection (3), this section applies to a community if—
(a) it is a charity or is established by a charity,
(b) a purpose of the community is to practise or advance a belief of a religious or similar nature, and
(c) all or some of its members live together for that purpose.
(3) This section does not apply to a community which—
(a) is an independent school or an alternative provision Academy that is not an independent school , or
(b) provides a course of further or higher education.
(4) The residential members of a community are those who live together as mentioned in subsection (2)(c).
(5) In this section—
(a) “charity” has the same meaning as in section 44, and
(b) “independent school” has the same meaning as in section 463 of the Education Act 1996 (in England and Wales), section 135 of the Education (Scotland) Act 1980 (in Scotland) and Article 2 of the Education and Libraries (Northern Ireland) Order 1986 (in Northern Ireland).
(6) In this section “course of further or higher education” means—
(a) in England and Wales, a course of a description referred to in Schedule 6 to the Education Reform Act 1988 or Schedule 2 to the Further and Higher Education Act 1992;
(b) in Scotland, a course or programme of a description mentioned in or falling within section 6(1) or 38 of the Further and Higher Education (Scotland) Act 1992;
(c) in Northern Ireland, a course of a description referred to in Schedule 1 to the Further Education (Northern Ireland) Order 1997 or a course providing further education within the meaning of Article 3 of that Order.
(1) A prisoner does not qualify for the national minimum wage in respect of any work which he does in pursuance of prison rules.
(2) In this section—
“prisoner” means a person detained in, or on temporary release from, a prison;
“prison” includes any other institution to which prison rules apply;
“prison rules” means—
in relation to England and Wales, rules made under section 47 of the Prison Act 1952;
in relation to Scotland, rules made under section 39 of the Prisons (Scotland) Act 1989; and
in relation to Northern Ireland, rules made under section 13 of the Prison Act Northern Ireland) 1953.
A person does not qualify for the national minimum wage in respect of any work that he does in pursuance of a work order under Schedule 6 to the Courts Act 2003 (discharge of fines by unpaid work).
Section 153A of the Immigration and Asylum Act 1999 (c. 33) (persons detained in removal centres) disqualifies certain persons for the national minimum wage.
46 Relationship of this Act and agricultural wages legislation.
(1) A person who has been prosecuted for an offence which falls within paragraph (a) or (b) below, that is to say—
(a) an offence under any provision of this Act in its application for the purposes of the agricultural wages legislation, or
(b) an offence under any provision of this Act in its application otherwise than for the purposes of the agricultural wages legislation,
shall not also be liable to be prosecuted for an offence which falls within the other of those paragraphs but which is constituted by the same conduct or alleged conduct for which he was prosecuted.
(2) No amount shall be recoverable both—
(a) under or by virtue of this Act in its application for the purposes of the agricultural wages legislation, and
(b) under or by virtue of this Act in its application otherwise than for those purposes,
in respect of the same work.
(3) Nothing in the agricultural wages legislation, or in any order under that legislation, affects the operation of this Act in its application otherwise than for the purposes of that legislation.
(4) In this section “the agricultural wages legislation” means—
(a) the Agricultural Wages Act 1948;
(b) the Agricultural Wages (Scotland) Act 1949; and
(c) the Agricultural Wages (Regulation) (Northern Ireland) Order 1977 ; and
(d) the Agricultural Sector (Wales) Act 2014.
47 Amendments relating to remuneration etc of agricultural workers.
(1) The following enactments, that is to say—
(a) the Agricultural Wages Act 1948,
(b) the Agricultural Wages (Scotland) Act 1949, and
(c) the Agricultural Wages (Regulation) (Northern Ireland) Order 1977,
shall be amended in accordance with Schedule 2 to this Act.
(2) The appropriate authority may by regulations amend—
(a) the Agricultural Wages Act 1948;
(b) the Agricultural Wages (Scotland) Act 1949;
(c) section 67 of the Agriculture Act 1967 (sick pay);
(d) section 46 of the Agriculture (Miscellaneous Provisions) Act 1968 (further functions of agricultural wages committees); and
(e) the Agricultural Wages (Regulation) (Northern Ireland) Order 1977.
(3) The amendments that may be made under subsection (2) above are any amendments which are consequential on this Act or on regulations under section 1(4), 2 or 3 above.
(4) The appropriate authority may by regulations amend, or make provision in substitution for,—
(a) section 7 of the Agricultural Wages Act 1948 (reckoning of benefits and advantages as payment of wages);
(b) section 7 of the Agricultural Wages (Scotland) Act 1949 (similar provision for Scotland); or
(c) Article 4(3) and (5) of the Agricultural Wages (Regulation) (Northern Ireland) Order 1977.
(5) Subsection (1) above is without prejudice to subsections (2) to (4) above.
(6) In this section “the appropriate authority” means—
(a) in relation to England and Wales, the Secretary of State and the Minister of Agriculture, Fisheries and Food acting jointly;
(b) in relation to Scotland, the Secretary of State;
(c) in relation to Northern Ireland, the Department of Agriculture for Northern Ireland.
Where—
(a) the immediate employer of a worker is himself in the employment of some other person, and
(b) the worker is employed on the premises of that other person,
that other person shall be deemed for the purposes of this Act to be the employer of the worker jointly with the immediate employer.
(1) Any provision in any agreement (whether a worker’s contract or not) is void in so far as it purports—
(a) to exclude or limit the operation of any provision of this Act; or
(b) to preclude a person from bringing proceedings under this Act before an employment tribunal.
(2) Subsection (1) above does not apply to any agreement to refrain from instituting or continuing proceedings where a conciliation officer has taken action under—
(a) any of sections 18A to 18C of the Employment Tribunals Act 1996 (conciliation), or
(b) in relation to Northern Ireland, any of Articles 20A to 20C of the Industrial Tribunals (Northern Ireland) Order 1996.
(3) Subsection (1) above does not apply to any agreement to refrain from instituting or continuing before an employment tribunal any proceedings within—
(a) section 18(1)(c) of the Employment Tribunals Act 1996 (proceedings under or by virtue of this Act where conciliation is available), or
(b) in relation to Northern Ireland, Article 20(1)(cc) of the Industrial Tribunals (Northern Ireland) Order 1996,
if the conditions regulating settlement agreements under this Act are satisfied in relation to the agreement.
(4) For the purposes of subsection (3) above the conditions regulating settlement agreements under this Act are that—
(a) the agreement must be in writing,
(b) the agreement must relate to the particular proceedings,
(c) the employee or worker must have received advice from a relevant independent adviser as to the terms and effect of the proposed agreement and, in particular, its effect on his ability to pursue his rights before an employment tribunal,
(d) there must be in force, when the adviser gives the advice, a contract of insurance, or an indemnity provided for members of a profession or a professional body, covering the risk of a claim by the employee or worker in respect of loss arising in consequence of the advice,
(e) the agreement must identify the adviser, and
(f) the agreement must state that the conditions regulating settlement agreements under this Act are satisfied.
(5) A person is a relevant independent adviser for the purposes of subsection (4)(c) above—
(a) if he is a qualified lawyer,
(b) if he is an officer, official, employee or member of an independent trade union who has been certified in writing by the trade union as competent to give advice and as authorised to do so on behalf of the trade union,
(c) if he works at an advice centre (whether as an employee or a volunteer) and has been certified in writing by the centre as competent to give advice and as authorised to do so on behalf of the centre, or
(d) if he is a person of a description specified in an order made by the Secretary of State.
(6) But a person is not a relevant independent adviser for the purposes of subsection (4)(c) above in relation to the employee or worker—
(a) if he is employed by, or is acting in the matter for, the employer or an associated employer,
(b) in the case of a person within subsection (5)(b) or (c) above, if the trade union or advice centre is the employer or an associated employer,
(c) in the case of a person within subsection (5)(c) above, if the employee or worker makes a payment for the advice received from him, or
(d) in the case of a person of a description specified in an order under subsection (5)(d) above, if any condition specified in the order in relation to the giving of advice by persons of that description is not satisfied.
(7) In this section “qualified lawyer” means—
(a) as regards England and Wales, a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience or the conduct of litigation (within the meaning of that Act);
(b) as respects Scotland—
(i) an advocate (whether in practice as such or employed to give legal advice); or
(ii) a solicitor who holds a practising certificate; and
(c) as respects Northern Ireland—
(i) a barrister (whether in practice as such or employed to give legal advice); or
(ii) a solicitor who holds a practising certificate.
(8) For the purposes of this section any two employers shall be treated as associated if—
(a) one is a company of which the other (directly or indirectly) has control; or
(b) both are companies of which a third person (directly or indirectly) has control;
and “associated employer” shall be construed accordingly.
(8A) In the application of this section in relation to Northern Ireland, subsections (3) and (4) above shall have effect as if for “settlement agreements” (in each place) there were substituted “compromise agreements.
(9) In the application of this section in relation to Northern Ireland—
(a) subsection (4)(c) above shall have effect as if for “advice from a relevant independent adviser” there were substituted “ independent legal advice from a qualified lawyer ”; and
(b) subsection (4)(d) above shall have effect as if for “contract of insurance, or an indemnity provided for members of a profession or a professional body,” there were substituted “ policy of insurance ”.
(10) In subsection (4) above, as it has effect by virtue of subsection (9) above, “independent”, in relation to legal advice received by an employee or worker, means that the advice is given by a lawyer who is not acting in the matter for the employer or an associated employer.
(11) The Secretary of State may by order repeal subsections (9) and (10) above and this subsection.
(1) The Secretary of State shall arrange for information about this Act and regulations under it to be published by such means as appear to the Secretary of State to be most appropriate for drawing the provisions of this Act and those regulations to the attention of persons affected by them.
(2) The information required to be published under subsection (1) above includes, in particular, information about—
(a) the hourly rate for the time being prescribed under section 1 above;
(b) the method or methods to be used for determining under section 2 above the hourly rate at which a person is to be regarded for the purposes of this Act as remunerated by his employer in respect of his work in any pay reference period;
(c) the methods of enforcing rights under this Act; and
(d) the persons to whom section 3 above applies and the provision made in relation to them by regulations under that section.
(1) Except to the extent that this Act makes provision to the contrary, any power conferred by this Act to make an Order in Council, regulations or an order includes power—
(a) to make different provision for different cases or for different descriptions of person; and
(b) to make incidental, consequential, supplemental or transitional provision and savings.
(2) Paragraph (a) of subsection (1) above does not have effect in relation to regulations under section 1(3) above or an order under section 49 above.
(3) No recommendation shall be made to Her Majesty to make an Order in Council under any provision of this Act unless a draft of the Order in Council has been laid before Parliament and approved by a resolution of each House of Parliament.
(4) Any power of a Minister of the Crown to make regulations or an order under this Act shall be exercisable by statutory instrument.
(5) A statutory instrument containing (whether alone or with other provisions) regulations under this Act shall not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(6) Subsection (5) above shall not have effect in relation to a statutory instrument if the only regulations under this Act which the instrument contains are regulations under section ... 47(2) or (4) above.
(7) A statutory instrument—
(a) which contains (whether alone or with other provisions) any regulations under section ... 47(2) or (4) above or an order under section 49 above, and
(b) which is not subject to any requirement that a draft of the instrument be laid before, and approved by a resolution of, each House of Parliament,
shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(8) The power—
(a) of the Department of Economic Development to make an order under section 26(6) above, or
(b) of the Department of Agriculture for Northern Ireland to make regulations under section 47 above,
shall be exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979; and any such order or regulations shall be subject to negative resolution within the meaning of section 41(6) of the Interpretation Act Northern Ireland) 1954.
There shall be paid out of money provided by Parliament—
(a) any expenditure incurred under this Act by a Minister of the Crown or government department or by a body performing functions on behalf of the Crown; and
(b) any increase attributable to the provisions of this Act in the sums payable out of such money under any other Act.
The enactments mentioned in Schedule 3 to this Act are repealed, and the instruments mentioned in that Schedule are revoked, to the extent specified in the third column of that Schedule.
(1) In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.
(2) In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.
(3) In this Act “worker” (except in the phrases “agency worker” and “home worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)—
(a) a contract of employment; or
(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;
and any reference to a worker’s contract shall be construed accordingly.
(4) In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.
(5) In this Act “employment”—
(a) in relation to an employee, means employment under a contract of employment; and
(b) in relation to a worker, means employment under his contract;
and “employed” shall be construed accordingly.
(1) In this Act, unless the context otherwise requires,—
“civil proceedings” means proceedings before an employment tribunal or civil proceedings before any other court;
“enforcement notice” shall be construed in accordance with section 19 above;
“government department” includes a Northern Ireland department, except in section 52(a) above;
“industrial tribunal” means a tribunal established under Article 3 of the Industrial Tribunals (Northern Ireland) Order 1996;
“notice” means notice in writing;
“pay reference period” shall be construed in accordance with section 1(4) above;
“penalty notice” shall be construed in accordance with section 21 above;
“person who qualifies for the national minimum wage” shall be construed in accordance with section 1(2) above; and related expressions shall be construed accordingly;
“prescribe” means prescribe by regulations;
“regulations” means regulations made by the Secretary of State, except in the case of regulations under section 47(2) or (4) above made by the Secretary of State and the Minister of Agriculture, Fisheries and Food acting jointly or by the Department of Agriculture for Northern Ireland.
(2) Any reference in this Act to a person being remunerated for a pay reference period is a reference to the person being remunerated by his employer in respect of his work in that pay reference period.
(3) Any reference in this Act to doing work includes a reference to performing services; and “work” and other related expressions shall be construed accordingly.
(4) For the purposes of this Act, a person ceases to be of compulsory school age in Scotland when he ceases to be of school age in accordance with sections 31 and 33 of the Education (Scotland) Act 1980.
(5) Any reference in this Act to a person ceasing to be of compulsory school age shall, in relation to Northern Ireland, be construed in accordance with Article 46 of the Education and Libraries (Northern Ireland) Order 1986.
(6) Any reference in this Act to an employment tribunal shall, in relation to Northern Ireland, be construed as a reference to an industrial tribunal.
(1) This Act may be cited as the National Minimum Wage Act 1998.
(2) Apart from this section and any powers to make an Order in Council or regulations or an order (which accordingly come into force on the day on which this Act is passed) the provisions of this Act shall come into force on such day or days as the Secretary of State may by order appoint; and different days may be appointed for different purposes.
(3) This Act extends to Northern Ireland.
Section 8.
Membership
1 (1) The Low Pay Commission appointed under section 8(9) of this Act (in this Schedule referred to as “the Commission”) shall consist of a chairman and eight other members appointed by the Secretary of State.
(2) In appointing members, the Secretary of State shall have regard to the desirability of securing that there is such a balance as the Secretary of State considers appropriate between—
(a) members with knowledge or experience of, or interest in, trade unions or matters relating to workers generally;
(b) members with knowledge or experience of, or interest in, employers’ associations or matters relating to employers generally; and
(c) members with other relevant knowledge or experience.
(3) Members shall hold and vacate office in accordance with their terms of appointment, subject to the following provisions.
(4) A member may resign his membership by giving notice to the Secretary of State.
(5) A person who ceases to be a member shall be eligible for re-appointment.
(6) The Secretary of State may by notice to the member concerned remove from office a member who—
(a) has become bankrupt, has had a debt relief order made in respect of him (under Part 7A of the Insolvency Act 1986), has made an arrangement with his creditors, has had his estate sequestrated, has granted a trust deed for his creditors or has made a composition contract with his creditors, or
(b) has been absent from two or more consecutive meetings of the Commission otherwise than for a reason approved by them, or
(c) is in the opinion of the Secretary of State unable or unfit to perform his duties as member.
Financial provisions
2 (1) The Secretary of State may pay the members of the Commission such remuneration, and such allowances in respect of travel or other expenses properly incurred by them, or in respect of loss of remuneration sustained by them, in the performance of their duties, as the Secretary of State may determine.
(2) The Secretary of State may determine to pay in respect of a person’s office as member of the Commission—
(a) such pension, allowance or gratuity to or in respect of that person on his retirement or death, or
(b) such contributions or other payment towards the provision of such a pension, allowance or gratuity,
as the Secretary of State may determine.
(3) Where a person ceases to be a member of the Commission otherwise than on the expiry of his term of office and it appears to the Secretary of State that there are special circumstances which make it right for him to receive compensation, the Secretary of State may determine to make a payment to him by way of compensation of such amount as the Secretary of State may determine.
Staff, facilities and money
3 The Secretary of State shall provide the Commission with—
(a) such staff,
(b) such accommodation, equipment and other facilities, and
(c) such sums,
as the Secretary of State may reasonably determine are required by the Commission for carrying out their duties in preparing any report on matters referred to them under this Act.
Proceedings
4 (1) The quorum of the Commission and the arrangements relating to their meetings shall be such as the Commission may determine.
(2) The validity of proceedings of the Commission is not affected by—
(a) any vacancy among the members, whether occurring by reason of death, resignation or otherwise;
(b) the appointment of a member at any time to fill such a vacancy; or
(c) any defect in the appointment of a member.
Disqualification for House of Commons and Northern Ireland Assembly
5 (1) The entry set out in sub-paragraph (2) below shall be inserted at the appropriate place in—
(a) Part II of Schedule 1 to the House of Commons Disqualification Act 1975 (offices disqualifying for membership of the House of Commons); and
(b) Part II of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (offices disqualifying for membership of the Northern Ireland Assembly).
(2) The entry is—
“The Low Pay Commission appointed under section 8(9) of the National Minimum Wage Act 1998.”
SCHEDULE 2 Amendments relating to remuneration etc of agricultural workers
Section 47.
Part I The Agricultural Wages Act 1948
1 The Agricultural Wages Act 1948 shall be amended in accordance with this Part of this Schedule.
Section 3
2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Enforcement
Section 4
4 (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) In consequence of sub-paragraph (1) above, the sidenote to section 4 becomes “Enforcement of holidays orders”.
Section 5
5 (1) Section 5 (permits to incapacitated persons) shall be amended as follows.
(2) In subsection (1)—
(a) for “the last preceding section relating to payment of wages at not less than the minimum rate” there shall be substituted “ subsection (1) of section 31 of the National Minimum Wage Act 1998 as it applies for the purposes of this Act (offence of refusing or wilfully neglecting to pay worker at applicable rate) ”; and
(b) for “any legal proceedings under the last preceding section for failing” there shall be substituted “ any legal proceedings under that subsection, as it so applies, for refusing or wilfully neglecting ”.
(3) After subsection (1) there shall be inserted—
(1A) Every permit under subsection (1) of this section (whenever granted) shall be deemed to contain a condition that the worker to whom it is granted must at any time be paid at a rate which—
(a) in the case of an hourly rate, is not less than the national minimum wage in force at that time; or
(b) in the case of a rate other than an hourly rate, is such as to yield an amount of wages for each hour worked which is not less than the hourly amount of the national minimum wage in force at that time.
(1B) The condition which a permit is deemed to contain by virtue of subsection (1A) of this section—
(a) overrides any other condition which the permit contains as to payment of wages, to the extent that that other condition provides for payment of wages at any time at a lower rate; but
(b) is without prejudice to any other condition which the permit contains as to payment of wages, to the extent that that other condition provides for payment of wages at any time at a higher rate
(4) In subsection (2)—
(a) for “the preceding subsection” there shall be substituted “ subsection (1) of this section ”; and
(b) for “any legal proceedings under the last preceding section for failing” there shall be substituted “ any legal proceedings under section 31(1) of the National Minimum Wage Act 1998, as it applies for the purposes of this Act, for refusing or wilfully neglecting ”.
Section 11
6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 12
7 (1) Section 12 (officers) shall be amended as follows.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) At the end of the section there shall be added—
(8) The powers conferred by subsections (3) and (4) of this section are not exercisable in any case where corresponding or similar powers conferred by any of the enforcement provisions of the National Minimum Wage Act 1998, as they have effect for the purposes of this Act, are exercisable by virtue of section 3A of this Act
(9) In subsection (8) of this section, “the enforcement provisions of the National Minimum Wage Act 1998” has the same meaning as in subsection (1) of section 3A of this Act
Information obtained by national minimum wage officers
8 After section 15 there shall be inserted—
Information obtained by national minimum wage officers.
15A (1) This section applies to information which has been obtained by an officer acting for the purposes of the National Minimum Wage Act 1998
(2) This section does not apply to any information to the extent that the information relates to—
(a) any failure to allow holidays directed to be allowed by an order under section 3 of this Act; or
(b) any terms and conditions of employment fixed by such an order by virtue of subsection (1)(c) of that section.
(3) Information to which this section applies may, with the authority of the Secretary of State, be supplied to the relevant Minister for use for any purpose relating to this Act.
(4) Information supplied under subsection (3) of this section shall not be supplied by the recipient to any other person or body unless—
(a) it could be supplied to that person or body under that subsection; or
(b) it is supplied for the purposes of any civil or criminal proceedings relating to this Act;
and shall not be supplied in those circumstances without the authority of the Secretary of State.
(5) This section does not limit the circumstances in which information may be supplied or used apart from this section.
(6) In this section “the relevant Minister” means—
(a) in relation to England, the Minister of Agriculture, Fisheries and Food; and
(b) in relation to Wales, the Minister of the Crown with the function of appointing officers under section 12 of this Act in relation to Wales.
Section 17
9 (1) Section 17 (interpretation) shall be amended as follows.
(2) In subsection (1) the following definition shall be inserted at the appropriate place—
“the national minimum wage” means the single hourly rate for the time being in force by virtue of regulations under section 1(3) of the National Minimum Wage Act 1998, but this definition is subject to subsection (1A) of this section;
(3) After subsection (1) there shall be inserted—
(1A) If, in the case of persons of any description, regulations under subsection (2) of section 3 of the National Minimum Wage Act 1998—
(a) prevent them being persons who (within the meaning of that Act) qualify for the national minimum wage, or
(b) prescribe a rate (“the reduced rate”) for the national minimum wage other than the single hourly rate for the time being prescribed under section 1(3) of that Act,
(b)prescribe a rate (“the reduced rate”) for the national minimum wage other than the single hourly rate for the time being prescribed under section 1(3) of that Act, this Act shall have effect in relation to persons of that description as if in a case falling within paragraph (a) above the national minimum wage were nil and in a case falling within paragraph (b) above the national minimum wage were the reduced rate.
Relationship between the national minimum wage and agricultural wages legislation
10 After section 17 there shall be inserted—
Relationship between this Act and the National Minimum Wage Act 1998.
17A (1) Except so far as expressly provided by this Act, nothing in the National Minimum Wage Act 1998 or in regulations made under that Act affects the operation of this Act.
(2) This Act is subject to—
(a) section 46 of the National Minimum Wage Act 1998; and
(b) section 47 of that Act and any regulations made under that section
Part II The Agricultural Wages (Scotland) Act 1949
11 The Agricultural Wages (Scotland) Act 1949 shall be amended in accordance with this Part of this Schedule.
Section 3
12 (1) Section 3 (power of Scottish Agricultural Wages Board to fix minimum rates of wages, holidays to be allowed etc.) shall be amended as follows.
(2) After subsection (2A) there shall be inserted—
(2B) No minimum rate fixed under this section which is an hourly rate shall be less than the national minimum wage.
(2C) No minimum rate fixed under this section which is a rate other than an hourly rate shall be such as to yield a less amount of wages for each hour worked than the hourly amount of the national minimum wage.
(3) After subsection (7) there shall be added—
(8) If the Board makes, or purports to make, an order fixing a minimum rate under this section—
(a) which is an hourly rate but which is lower than the national minimum wage in force when that minimum rate comes into effect, or
(b) which is a rate other than an hourly rate but which is such as to yield a less amount of wages for each hour worked than the hourly amount of the national minimum wage in force when that minimum rate comes into effect,
the Board shall be taken to have made an order fixing in place of that minimum rate a minimum rate equal to the national minimum wage or, as the case may be, a minimum rate such as to yield an amount of wages for each hour worked equal to the hourly amount of the national minimum wage.
(9) If, at any time after a minimum rate which is an hourly rate comes into effect under this section, the national minimum wage becomes higher than that minimum rate, then, as respects any period beginning at or after that time, the Board shall be taken to have made an order fixing in place of that minimum rate a minimum rate equal to the national minimum wage.
(10) If, at any time after a minimum rate other than an hourly rate comes into effect under this section, the national minimum wage is increased to such a level that that minimum rate yields a less amount of wages for each hour worked than the hourly amount of the national minimum wage, then, as respects any period beginning at or after that time, the Board shall be taken to have made an order fixing in place of that minimum rate a minimum rate such as to yield an amount of wages for each hour worked equal to the hourly amount of the national minimum wage.
(11) Subsections (8) to (10) of this section are without prejudice to the power of the Board to make further orders under this section fixing any minimum rates.
(12) Where an order under this section fixes any particular minimum rate of wages by reference to two or more component rates, of which—
(a) one is the principal component, and
(b) the other or others are supplemental or additional components,
(as in a case where the minimum rate for night work is fixed as the sum of the minimum rate payable in respect of work other than night work and a supplemental or additional minimum rate in respect of working at night) the national minimum wage provisions of this section apply in relation to the principal component rate and not the supplemental or additional component rates.
(13) The national minimum wage provisions of this section do not apply in relation to any minimum rate which is in the nature of an allowance payable in respect of some particular responsibility or circumstance (as in a case where a minimum rate is fixed in respect of being required to keep a dog).
(14) The national minimum wage provisions of this section do not apply in relation to any minimum rate fixed under this section—
(a) by virtue of subsection (2)(d) of this section, or
(b) by virtue of section 67 of the Agriculture Act 1967 (sick pay),
unless and to the extent that regulations under section 2 of the National Minimum Wage Act 1998 make provision which has the effect that circumstances or periods in respect of which the minimum rate in question is required to be paid to a worker are treated as circumstances in which, or times at which, a person is to be regarded as working.
(15) In this section “the national minimum wage provisions of this section” means subsections (2B), (2C) and (8) to (10) of this section.
Enforcement
13 After section 3 there shall be inserted—
Enforcement.
3A (1) The enforcement provisions of the National Minimum Wage Act 1998 shall have effect for the purposes of this Act as they have effect for the purposes of that Act, but with the modifications specified in subsection (3) of this section.
(2) In subsection (1) of this section “the enforcement provisions of the National Minimum Wage Act 1998” means the following provisions of that Act—
(a) sections 9 to 11 (records);
(b) section 14 (powers of officers);
(c) sections 17 and 19 to 22 (enforcement of right to national minimum wage);
(d) sections 23 and 24 (right not to suffer detriment);
(e) section 28 (evidence: reversal of burden of proof in civil proceedings);
(f) sections 31, 32 and 33(4) and (5) (offences);
(g) section 48 (superior employees); and
(h) section 49 (restriction on contracting out).
(3) In the application of any provision of the National Minimum Wage Act 1998 by subsection (1) of this section—
(a) any reference to that Act, other than a reference to a specific provision of it, includes a reference to this Act;
(b) any reference to a worker (within the meaning of that Act) shall be taken as a reference to a worker employed in agriculture (within the meaning of this Act);
(c) any reference to a person (however described) who qualifies for the national minimum wage shall be taken as a reference to a worker employed in agriculture;
(d) subject to paragraph (c) of this subsection, any reference to the national minimum wage, other than a reference to the hourly amount of the national minimum wage, shall be taken as a reference to the minimum rate applicable under this Act;
(e) subject to paragraph (c) of this subsection, any reference to qualifying for the national minimum wage shall be taken as a reference to being entitled to the minimum rate applicable under this Act; and
(f) any reference to a pay reference period shall be disregarded.
(4) In section 104A of the Employment Rights Act 1996 (unfair dismissal: national minimum wage) in subsection (1)(c)—
(a) any reference to a person qualifying for the national minimum wage includes a reference to a person being or becoming entitled to a minimum rate applicable under this Act; and
(b) any reference to a person qualifying for a particular rate of national minimum wage includes a reference to a person being or becoming entitled to a particular minimum rate applicable under this Act.
Section 4
14 In section 4 (enforcement of wages and holiday orders) the following provisions shall cease to have effect—
(a) in subsection (1)—
(i) paragraphs (a), (b) and (d); and
(ii) the words “and, in the case of an offence consisting of a failure to pay wages” onwards;
(b) subsection (2);
(c) in subsection (3), the words “has paid wages at not less than the minimum rate of” and “, as the case may be”; and
(d) subsection (4).
Section 5
15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 11
16 Section 11(1)(a) (invalidity of certain agreements) shall cease to have effect.
Section 12
17 (1) Section 12 (officers) shall be amended as follows.
(2) Subsection (4)(a) (power to institute civil proceedings on behalf of worker on account of payment of wages at less than the applicable minimum rate etc) shall cease to have effect.
(3) At the end of the section there shall be added—
(7) The powers conferred by subsection (3) of this section are not exercisable in any case where corresponding or similar powers conferred by any of the enforcement provisions of the National Minimum Wage Act 1998, as they have effect for the purposes of this Act, are exercisable by virtue of section 3A of this Act.
(8) In subsection (7) of this section, “the enforcement provisions of the National Minimum Wage Act 1998” has the same meaning as in subsection (1) of section 3A of this Act.
Information obtained by national minimum wage officers
18 After section 15 there shall be inserted—
Information obtained by national minimum wage officers.
15A (1) This section applies to information which has been obtained by an officer acting for the purposes of the National Minimum Wage Act 1998.
(2) This section does not apply to any information to the extent that the information relates to—
(a) any failure to allow holidays directed to be allowed by an order under section 3 of this Act; or
(b) any terms and conditions of employment fixed by such an order by virtue of subsection (1)(c) of that section.
(3) Information to which this section applies may, with the authority of the relevant Minister, be supplied to the Secretary of State for use for any purpose relating to this Act.
(4) Information supplied under subsection (3) of this section shall not be supplied by the recipient to any other person or body unless—
(a) it could be supplied to that person or body under that subsection; or
(b) it is supplied for the purposes of any civil or criminal proceedings relating to this Act;
and shall not be supplied in those circumstances without the authority of the relevant Minister.
(5) This section does not limit the circumstances in which information may be supplied or used apart from this section.
(6) In this section “the relevant Minister” means the Minister of the Crown with the function of appointing officers under section 13(1)(a) of the National Minimum Wage Act 1998.
Section 17
19 (1) Section 17 (interpretation) shall be amended as follows.
(2) In subsection (1) the following definition shall be inserted in the appropriate place—
“the national minimum wage” means the single hourly rate for the time being in force by virtue of regulations under section 1(3) of the National Minimum Wage Act 1998, but this definition is subject to subsection (1A) of this section;
.
(3) After subsection (1) there shall be inserted—
(1A) If, in the case of persons of any description, regulations under subsection (2) of section 3 of the National Minimum Wage Act 1998—
(a) prevent them being persons who (within the meaning of that Act) qualify for the national minimum wage; or
(b) prescribe a rate (“the reduced rate”) for the national minimum wage other than the single hourly rate for the time being prescribed under section 1(3) of that Act,
this Act shall have effect in relation to persons of that description as if in a case falling within paragraph (a) above the national minimum wage were nil and in a case falling within paragraph (b) above the national minimum wage were the reduced rate.
Relationship between national minimum wage and agricultural wages legislation
20 After section 17 there shall be inserted—
Relationship between this Act and the National Minimum Wage Act 1998.
17A (1) Except so far as expressly provided by this Act, nothing in the National Minimum Wage Act 1998 or in regulations made under that Act affects the operation of this Act.
(2) This Act is subject to—
(a) section 46 of the National Minimum Wage Act 1998; and
(b) section 47 of that Act and any regulations made under that section.
Part III The Agricultural Wages (Regulation) (Northern Ireland) Order 1977
21 The Agricultural Wages (Regulation) (Northern Ireland) Order 1977 shall be amended in accordance with this Part of this Schedule.
Article 2
22 (1) Article 2 (interpretation) shall be amended as follows.
(2) In paragraph (2) the following definition shall be inserted at the appropriate place—
“the national minimum wage” means the single hourly rate for the time being in force by virtue of regulations under section 1(3) of the National Minimum Wage Act 1998, but this definition is subject to paragraph (2A);
.
(3) After paragraph (2) there shall be inserted—
(2A) If, in the case of persons of any description, regulations under subsection (2) of section 3 of the National Minimum Wage Act 1998—
(a) prevent them being persons who (within the meaning of that Act) qualify for the national minimum wage, or
(b) prescribe a rate (“the reduced rate”) for the national minimum wage other than the single hourly rate for the time being prescribed under section 1(3) of that Act,
this Order shall have effect in relation to persons of that description as if in a case falling within sub-paragraph (a) the national minimum wage were nil and in a case falling within sub-paragraph (b) the national minimum wage were the reduced rate.
Relationship between the national minimum wage and agricultural wages legislation
23 After Article 2 there shall be inserted—
Relationship between this Order and the National Minimum Wage Act 1998.
2A (1) Except so far as expressly provided by this Order, nothing in the National Minimum Wage Act 1998 or in regulations made under that Act affects the operation of this Order.
(2) This Order is subject to—
(a) section 46 of the National Minimum Wage Act 1998; and
(b) section 47 of that Act and any regulations made under that section.
Article 4
24 (1) Article 4 (power of Agricultural Wages Board for Northern Ireland to fix minimum rates of wages) shall be amended as follows.
(2) After paragraph (1) there shall be inserted—
(1A) No minimum rate fixed under this Article which is an hourly rate shall be less than the national minimum wage.
(1B) No minimum rate fixed under this Article which is a rate other than an hourly rate shall be such as to yield a less amount of wages for each hour worked than the hourly amount of the national minimum wage.
(3) After paragraph (12) there shall be added—
(13) If the Board makes, or purports to make, an order fixing a minimum rate under this Article—
(a) which is an hourly rate but which is lower than the national minimum wage in force when that minimum rate comes into effect, or
(b) which is a rate other than an hourly rate but which is such as to yield a less amount of wages for each hour worked than the hourly amount of the national minimum wage in force when that minimum rate comes into effect,
the Board shall be taken to have made an order fixing in place of that minimum rate a minimum rate equal to the national minimum wage or, as the case may be, a minimum rate such as to yield an amount of wages for each hour worked equal to the hourly amount of the national minimum wage.
(14) If, at any time after a minimum rate which is an hourly rate comes into effect under this Article, the national minimum wage becomes higher than that minimum rate, then, as respects any period beginning at or after that time, the Board shall be taken to have made an order fixing in place of that minimum rate a minimum rate equal to the national minimum wage.
(15) If, at any time after a minimum rate other than an hourly rate comes into effect under this Article, the national minimum wage is increased to such a level that that minimum rate yields a less amount of wages for each hour worked than the hourly amount of the national minimum wage, then, as respects any period beginning at or after that time, the Board shall be taken to have made an order fixing in place of that minimum rate a minimum rate such as to yield an amount of wages for each hour worked equal to the hourly amount of the national minimum wage.
(16) Paragraphs (13) to (15) are without prejudice to the power of the Board to make further orders under this Article fixing any minimum rates.
(17) Where an order under this Article fixes any particular minimum rate of wages by reference to two or more component rates, of which—
(a) one is the principal component, and
(b) the other or others are supplemental or additional components,
(as in a case where the minimum rate for night work is fixed as the sum of the minimum rate payable in respect of work other than night work and a supplemental or additional minimum rate in respect of working at night) the national minimum wage provisions of this Article apply in relation to the principal component rate and not the supplemental or additional component rates.
(18) The national minimum wage provisions of this Article do not apply in relation to any minimum rate which is in the nature of an allowance payable in respect of some particular responsibility or circumstance (as in a case where a minimum rate is fixed in respect of being required to keep a dog).
(19) The national minimum wage provisions of this Article do not apply in relation to any minimum rate fixed under this Article by virtue of Article 5 or 8(5), unless and to the extent that regulations under section 2 of the National Minimum Wage Act 1998 make provision which has the effect that circumstances or periods in respect of which the minimum rate in question is required to be paid to a worker employed in agriculture are treated as circumstances in which, or times at which, a person is to be regarded as working.
(20) In this Article “the national minimum wage provisions of this Article” means paragraphs (1A), (1B) and (13) to (15).
Article 6
25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Enforcement
26 After Article 8 there shall be inserted—
Enforcement.
8A (1) The enforcement provisions of the National Minimum Wage Act 1998 shall have effect for the purposes of this Order as they have effect for the purposes of that Act, but with the modifications specified in paragraphs (3) and (4).
(2) In paragraph (1) “the enforcement provisions of the National Minimum Wage Act 1998” means the following provisions of that Act—
(a) sections 9 to 11 (records);
(b) section 14 (powers of officers);
(c) sections 17 and 19 to 22 (enforcement of right to national minimum wage);
(d) sections 23 and 24 (right not to suffer detriment);
(e) section 28 (evidence: reversal of burden of proof in civil proceedings);
(f) sections 31 to 33 (offences);
(g) section 48 (superior employers); and
(h) section 49 (restriction on contracting out).
(3) In the application of any provision of the National Minimum Wage Act 1998 by paragraph (1)—
(a) any reference to that Act, other than a reference to a specific provision of it, includes a reference to this Order;
(b) any reference to a worker (within the meaning of that Act) shall be taken as a reference to a worker employed in agriculture (within the meaning of this Order);
(c) any reference to a person (however described) who qualifies for the national minimum wage shall be taken as a reference to a worker employed in agriculture;
(d) subject to sub-paragraph (c), any reference to the national minimum wage, other than a reference to the hourly amount of the national minimum wage, shall be taken as a reference to the minimum rate applicable under this Order;
(e) subject to sub-paragraph (c), any reference to qualifying for the national minimum wage shall be taken as a reference to being entitled to the minimum rate applicable under this Order; and
(f) any reference to a pay reference period shall be disregarded.
(4) In the application of section 33 of the National Minimum Wage Act 1998 (proceedings for offences) by paragraph (1), any reference to the Secretary of State shall be taken to include a reference to the Department of Agriculture for Northern Ireland.
(5) In Article 135A of the Employment Rights (Northern Ireland) Order 1996 (unfair dismissal: national minimum wage) in paragraph (1)(c)—
(a) any reference to a person qualifying for the national minimum wage includes a reference to a person being or becoming entitled to a minimum rate applicable under this Order; and
(b) any reference to a person qualifying for a particular rate of national minimum wage includes a reference to a person being or becoming entitled to a particular minimum rate applicable under this Order.
Information obtained by national minimum wage officers
27 After Article 11 there shall be inserted—
Information obtained by national minimum wage officers.
11A (1) This Article applies to information which has been obtained by an officer acting for the purposes of the National Minimum Wage Act 1998.
(2) This Article does not apply to any information to the extent that the information relates to any failure to allow holidays in accordance with Article 8.
(3) Information to which this Article applies may, with the authority of the Secretary of State, be supplied to the Department for use for any purpose relating to this Order.
(4) Information supplied under paragraph (3) shall not be supplied by the recipient to any other person or body unless—
(a) it could be supplied to that person or body under that paragraph; or
(b) it is supplied for the purposes of any civil or criminal proceedings relating to this Order;
and shall not be supplied in those circumstances without the authority of the Secretary of State.
(5) This Article does not limit the circumstances in which information may be supplied or used apart from this Article.
Section 53.
Reference | Short title or title | Extent of repeal or revocation
11 & 12 Geo. 6 c. 47. | The Agricultural Wages Act 1948. | In section 4, in subsection (1), paragraphs (a), (b) and (d) and the words from “and, in the case of an offence consisting of a failure to pay wages” onwards, subsection (2), in subsection (3), the words “has paid wages at not less than the minimum rate or” and “as the case may be”, and subsection (4).
Section 7(2).
Section 11(1)(a).
In section 12(5)(a), the words “on account of the payment of wages to him at less than the minimum rate applicable or”.
12 & 13 Geo. 6 c. 30. | The Agricultural Wages (Scotland) Act 1949. | In section 4, in subsection (1), paragraphs (a), (b) and (d) and the words “and, in the case of an offence consisting of a failure to pay wages” onwards, subsection (2), in subsection (3), the words “has paid wages at not less than the minimum rate of” and “, as the case may be” and subsection (4).
Section 11(1)(a).
Section 12(4)(a).
1996 c. 17. | The Employment Tribunals Act 1996. | In section 21(1)(f), the word “or”.
1996 c. 18. | The Employment Rights Act 1996. | In section 108(3), the word “or” at the end of paragraph (g).
In section 109(2), the word “or” at the end of paragraph (g).
S.I. 1996/1919 (N.I.16). | The Employment Rights (Northern Ireland) Order 1996. | In Article 142(2), the word “or” at the end of sub-paragraph (b).