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Employment Bill [HL]


Employment Bill [HL]

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(4)   

The replacement notice may relate to a pay reference period ending

after the date of service of the original notice.

(5)   

Section 19(7) above applies in relation to the replacement notice as if the

reference to six years before the date of service of the notice were a

reference to six years before the date of service of the original notice.

5

(6)   

The replacement notice must—

(a)   

indicate the differences between it and the original notice that it

is reasonable for the officer to consider are material; and

(b)   

indicate the effect of section 19H below.

(7)   

Failure to comply with subsection (6) above does not make the

10

replacement notice ineffective.

(8)   

Where a replacement notice is withdrawn under section 19F above, no

further replacement notice may be served under subsection (1) above

pursuant to the withdrawal.

(9)   

Nothing in this section affects any power that arises apart from this

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section to serve a notice of underpayment in relation to any worker.

19H     

Effect of replacement notice of underpayment

(1)   

This section applies where a notice of underpayment is withdrawn

under section 19F above and a replacement notice is served in

accordance with section 19G above.

20

(2)   

If an appeal has been made under section 19C above against the

original notice and the appeal has not been withdrawn or finally

determined before the time when that notice is withdrawn—

(a)   

that appeal (“the earlier appeal”) shall have effect after that time

as if it were against the replacement notice; and

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(b)   

the employer may exercise his right of appeal under section 19C

above against the replacement notice only if he withdraws the

earlier appeal.

(3)   

After the withdrawal no complaint may be presented or other civil

proceedings commenced by virtue of section 19D above in reliance on

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any non-compliance with the notice before it was withdrawn; but any

complaint or proceedings so commenced before the withdrawal may be

proceeded with despite the withdrawal.

(4)   

If a sum was paid by or recovered from the employer by way of

financial penalty under the original notice—

35

(a)   

an amount equal to that sum (or, if more than one, the total of

those sums) shall be treated as having been paid in respect of

the replacement notice; and

(b)   

any amount by which that sum (or total) exceeds the amount

payable under the replacement notice must be repaid to the

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employer with interest at the appropriate rate running from the

date when the sum (or, if more than one, the first of them) was

paid or recovered.

(5)   

In subsection (4)(b) above “the appropriate rate” means the rate that, on

the date mentioned in that provision, was specified in section 17 of the

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Judgments Act 1838.”

 
 

Employment Bill [HL]

13

 

(2)   

In any period after the coming into force of subsection (1) above and before the

coming into force of section 62 of the Tribunals, Courts and Enforcement Act

2007 (c. 15), section 19E(a) of the National Minimum Wage Act 1998 (c. 39), as

substituted by subsection (1) above, shall have effect as if for “under section 85

of the County Courts Act 1984” there were substituted “by execution issued

5

from the county court”.

(3)   

In the National Minimum Wage Act 1998, in section 51 (regulations and

orders), in subsections (6) and (7)(a), the words “21 or” are repealed.

(4)   

In the Employment Tribunals Act 1996 (c. 17), in section 4 (composition of

employment tribunal), in subsection (3)(cd), for “section 19 or 22” there is

10

substituted “section 19C”.

(5)   

In the Commissioners for Revenue and Customs Act 2005 (c. 11), in section 44

(payment into Consolidated Fund), subsection (2)(f) is repealed.

(6)   

In the Agricultural Wages Act 1948 (c. 47), in section 3A(2)(c) (enforcement of

agricultural legislation in England and Wales), for “22F” there is substituted

15

“19H”.

(7)   

Nothing in this section (or Part 2 of the Schedule) affects any provision of the

National Minimum Wage Act 1998 as that provision has effect for the purposes

of—

(a)   

the Agricultural Wages (Scotland) Act 1949 (c. 30), or

20

(b)   

the Agricultural Wages (Regulation) (Northern Ireland) Order 1977 (SI

1977/2151) (N.I.22).

10      

Powers of officers to take copies of records

(1)   

In the National Minimum Wage Act 1998, section 14 (powers of officers) is

amended as specified in subsections (2) and (3).

25

(2)   

In subsection (1)(a), the words “any material part of” are repealed.

(3)   

After subsection (3) there is inserted—

“(3A)   

The power of an officer to copy records under subsection (1)(a) includes

a power to remove such records from the place where they are

produced to him in order to copy them; but such records must be

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returned as soon as reasonably practicable to the relevant person by

whom they are produced.”

(4)   

Nothing in this section (or Part 3 of the Schedule) affects section 14 of the

National Minimum Wage Act 1998 as it has effect for the purposes of—

(a)   

the Agricultural Wages (Scotland) Act 1949, or

35

(b)   

the Agricultural Wages (Regulation) (Northern Ireland) Order 1977 (SI

1977/2151) (N.I.22).

11      

Offences: mode of trial and penalties

(1)   

In the National Minimum Wage Act 1998, in section 31 (offences), in subsection

(9), for the words from “on summary conviction” to the end there is

40

substituted—

“(a)   

on conviction on indictment, to a fine, or

(b)   

on summary conviction, to a fine not exceeding the statutory

maximum”.

 
 

Employment Bill [HL]

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(2)   

In that Act, in section 33 (proceedings for offences), subsections (2) to (5) are

repealed.

(3)   

Nothing in this section (or Part 4 of the Schedule) affects section 31 or 33 of the

National Minimum Wage Act 1998 (c. 39) as it has effect for the purposes of—

(a)   

the Agricultural Wages (Scotland) Act 1949 (c. 30), or

5

(b)   

the Agricultural Wages (Regulation) (Northern Ireland) Order 1977 (SI

1977/2151) (N.I.22).

12      

Powers to investigate criminal offences

(1)   

In the Finance Act 2007 (c. 11), in section 84 (criminal investigations: powers of

Revenue and Customs), in subsection (3), for “13 to” there is substituted “14,”.

10

(2)   

In the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39), in section 23A

(investigation of offences by Revenue and Customs), in subsection (2)(b), for

“13 to” there is substituted “14,”.

13      

Cadet Force Adult Volunteers

In the National Minimum Wage Act 1998, after section 37 there is inserted—

15

“37A    

Cadet Force Adult Volunteers

(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

20

(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—

25

(a)   

the Combined Cadet Force;

(b)   

the Sea Cadet Corps;

(c)   

the Army Cadet Force;

(d)   

the Air Training Corps.”

14      

Voluntary workers

30

In the National Minimum Wage Act 1998, in section 44 (voluntary workers),

after subsection (1) there is inserted—

“(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

35

(c)   

are not accommodation expenses,

   

are to be regarded as actually incurred in the performance of his

duties.”

 
 

Employment Bill [HL]

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Employment agencies

15      

Offences: mode of trial and penalties

In the Employment Agencies Act 1973 (c. 35), in each of sections 3B, 5(2) and

6(2), for the words from “on summary conviction” to the end there is

substituted—

5

“(a)   

on conviction on indictment, to a fine;

(b)   

on summary conviction, to a fine not exceeding the statutory

maximum.”

16      

Enforcement powers

(1)   

In the Employment Agencies Act 1973, section 9 (inspection) is amended as

10

follows.

(2)   

In subsection (1), in paragraph (b)—

(a)   

after “premises and” there is inserted “(i)”;

(b)   

after “thereunder” there is inserted—

“(ii)   

any financial records or other financial

15

documents not falling within paragraph (i)

which he may reasonably require to inspect for

the purpose of ascertaining whether the

provisions of this Act and of any regulations

made thereunder are being complied with or of

20

enabling the Secretary of State to exercise his

functions under this Act;”.

(3)   

In that subsection, paragraph (d) and the preceding “and” are repealed.

(4)   

In subsection (1A), for the words from “he may require” to the end there is

substituted “the officer may by notice in writing require the person carrying on

25

the employment agency or employment business to furnish him with the

record or other document or information at such time and place as he may

specify.”

(5)   

After subsection (1A) there is inserted—

“(1AA)   

Where a person carrying on an employment agency or employment

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business fails to comply with subsection (1A) in relation to any record

or other document or information and the officer has reasonable cause

to believe that the record or other document or information is kept by—

(a)   

a person concerned with the carrying on of the employment

agency or employment business, or

35

(b)   

a person formerly so concerned,

   

the officer may by notice in writing require that person to furnish him

with the record or other document or information at such time and

place as he may specify.

(1AB)   

Where a person carrying on an employment agency or employment

40

business fails to comply with subsection (1A) in relation to any

financial record or other financial document which is kept by a bank,

the officer may by notice in writing require the bank to furnish the

record or other document to him at such time and place as he may

specify.

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Employment Bill [HL]

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(1AC)   

In subsection (1AB), “bank” means a person who has permission under

Part 4 of the Financial Services and Markets Act 2000 to accept

deposits.”

(6)   

After subsection (1AC) (as inserted by subsection (5) above), there is inserted—

“(1AD)   

An officer may take copies of any record or other document inspected

5

by or furnished to him under this section.

(1AE)   

An officer may, for the purposes of subsection (1AD), remove a record

or other document from the premises where it is inspected by or

furnished to him; but he must return it as soon as reasonably

practicable.”

10

(7)   

In subsection (1C), for “subsection (1)” there is substituted “this section”.

(8)   

In subsection (3)—

(a)   

for “paragraph (a), (b) or (d) of subsection (1) of this section” there is

substituted “subsection (1)(a) or (b), (1AD) or (1AE)”;

(b)   

for “paragraph (c) of that subsection or under subsection (1A)” there is

15

substituted “subsection (1)(c), (1A), (1AA) or (1AB)”.

(9)   

In subsection (4)(a), the words “subsection (1) of” are repealed.

17      

Offences by partnerships in Scotland

In the Employment Agencies Act 1973 (c. 35), in section 11 (offences by bodies

corporate)—

20

(a)   

the existing provision becomes subsection (1), and

(b)   

after that subsection there is inserted—

“(2)   

Where an offence under this Act committed by a partnership in

Scotland is proved to have been committed with the consent or

connivance of, or to have been attributable to any neglect on the

25

part of, a partner or a person purporting to act as a partner, he,

as well as the partnership, shall be guilty of the offence and shall

be liable to be proceeded against and punished accordingly.”

Miscellaneous

18      

Employment agencies and national minimum wage legislation: information-

30

sharing

(1)   

In the National Minimum Wage Act 1998 (c. 39), in section 15 (information

obtained by officers), after subsection (5) there is inserted—

“(5A)   

Information to which this section applies—

(a)   

may be supplied by, or with the authorisation of, the Secretary

35

of State to an officer acting for the purposes of the Employment

Agencies Act 1973 for any purpose relating to that Act; and

(b)   

may be used by an officer acting for the purposes of that Act for

any purpose relating to that Act.”

(2)   

In the Employment Agencies Act 1973, in section 9 (inspection), subsection (4)

40

is amended as follows—

 
 

Employment Bill [HL]

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(a)   

after “this section” there is inserted “(or pursuant to section 15(5A) of

the National Minimum Wage Act 1998)”;

(b)   

after paragraph (iv) there is inserted “or

(v)   

to an officer acting for the purposes of the

National Minimum Wage Act 1998 for any

5

purpose relating to that Act;”.

19      

Exclusion or expulsion from trade union for membership of political party

(1)   

The Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) is

amended as follows.

(2)   

In section 174 (right not to be excluded or expelled from union) after subsection

10

(4B) there is inserted—

“(4C)   

Conduct which consists in an individual’s being or having been a

member of a political party is not conduct falling within subsection

(4A) if membership of that political party is contrary to—

(a)   

a rule of the trade union, or

15

(b)   

an objective of the trade union.

(4D)   

For the purposes of subsection (4C)(b) in the case of conduct consisting

in an individual’s being a member of a political party, an objective is to

be disregarded—

(a)   

in relation to an exclusion, if it is not reasonably practicable for

20

the objective to be ascertained by a person working in the same

trade, industry or profession as the individual;

(b)   

in relation to an expulsion, if it is not reasonably practicable for

the objective to be ascertained by a member of the union.

(4E)   

For the purposes of subsection (4C)(b) in the case of conduct consisting

25

in an individual’s having been a member of a political party, an

objective is to be disregarded—

(a)   

in relation to an exclusion, if at the time of the conduct it was not

reasonably practicable for the objective to be ascertained by a

person working in the same trade, industry or profession as the

30

individual;

(b)   

in relation to an expulsion, if at the time of the conduct it was

not reasonably practicable for the objective to be ascertained by

a member of the union.

(4F)   

Where the exclusion or expulsion of an individual from a trade union

35

is wholly or mainly attributable to conduct which consists of an

individual’s being or having been a member of a political party but

which by virtue of subsection (4C) is not conduct falling within

subsection (4A), the exclusion or expulsion is not permitted by virtue of

subsection (2)(d) if any one or more of the conditions in subsection (4G)

40

apply.

(4G)   

Those conditions are—

(a)   

the decision to exclude or expel is taken otherwise than in

accordance with the union’s rules;

(b)   

the decision to exclude or expel is taken unfairly;

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Employment Bill [HL]

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(c)   

the individual would lose his livelihood or suffer other

exceptional hardship by reason of not being, or ceasing to be, a

member of the union.

(4H)   

For the purposes of subsection (4G)(b) a decision to exclude or expel an

individual is taken unfairly if (and only if)—

5

(a)   

before the decision is taken the individual is not given—

(i)   

notice of the proposal to exclude or expel him and the

reasons for that proposal, and

(ii)   

a fair opportunity to make representations in respect of

that proposal, or

10

(b)   

representations made by the individual in respect of that

proposal are not considered fairly.”

(3)   

In section 176 (remedies) in subsection (1D)(a), for “a member of the general

public” substitute “a person working in the same trade, industry or profession

as the complainant”.

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General

20      

Repeals

The Schedule contains repeals.

21      

Extent

An amendment or repeal effected by this Act has the same extent as the

20

enactment (or the relevant part of the enactment) to which it relates.

22      

Commencement

(1)   

The provisions of this Act come into force as follows—

(a)   

sections 1 to 9 and Parts 1 and 2 of the Schedule come into force on such

day as the Secretary of State may by order appoint;

25

(b)   

section 10 and Part 3 of the Schedule come into force at the end of the

period of two months beginning with the day on which this Act is

passed;

(c)   

sections 11 and 12 and Part 4 of the Schedule come into force on such

day as the Secretary of State may by order appoint;

30

(d)   

sections 13 and 14 come into force at the end of the period of two

months beginning with the day on which this Act is passed;

(e)   

sections 15 to 17 and Part 5 of the Schedule come into force on 6 April

2009;

(f)   

sections 18 and 19 come into force on such day as the Secretary of State

35

may by order appoint;

(g)   

the remaining provisions of this Act come into force on the day on

which this Act is passed.

(2)   

An order under subsection (1) is to be made by statutory instrument.

(3)   

An order under subsection (1) may—

40

(a)   

appoint different days for different purposes;

(b)   

contain transitional provision, or savings.

 
 

 
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