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| Miscellaneous and supplementary provisions |
Application of Act to superior employers: liability of employers and others in respect of offences. |
45. - (1) Where- |
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(a) the immediate employer of a worker is himself in the employment of some other person, and |
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(b) the worker is employed on the premises of that other person, |
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that other person shall be deemed for the purposes of this Part to be the employer of the worker jointly with the immediate employer. |
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(2) Where the commission by any person of an offence under section 28(1) or (2) above is due to the act or default of some other person, that other person is also guilty of the offence. |
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(3) A person may be charged with and convicted of an offence by virtue of subsection (2) above whether or not proceedings are taken against any other person. |
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(4) In any proceedings for an offence under section 28(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 Part, and of any relevant regulations made under it, were complied with by himself and by any person under his control. |
Restrictions on contracting out. |
46. - (1) Any provision in any agreement (whether a worker's contract or not) is void in so far as it purports- |
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(a) to exclude or limit the operation of any provision of this Act; or |
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(b) to preclude a person from bringing proceedings under this Act before an industrial tribunal. |
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(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- |
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(a) section 18 of the Industrial Tribunals Act 1996 (conciliation), or |
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(b) in relation to Northern Ireland, Article 20 of the Industrial Tribunals (Northern Ireland) Order 1996. |
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(3) Subsection (1) above does not apply to any agreement to refrain from instituting or continuing before an industrial tribunal any proceedings within- |
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(a) section 18(1)(dd) of the Industrial Tribunals Act 1996 (proceedings under or by virtue of this Act where conciliation is available), or |
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(b) in relation to Northern Ireland, Article 20(1)(cc) of the Industrial Tribunals (Northern Ireland) Order 1996, |
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if the conditions regulating compromise agreements under this Act are satisfied in relation to the agreement. |
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(4) For the purposes of subsection (3) above the conditions regulating compromise agreements under this Act are that- |
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(a) the agreement must be in writing, |
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(b) the agreement must relate to the particular complaint, |
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(c) the employee or worker must have received independent legal advice from a qualified lawyer as to the terms and effect of the proposed agreement and, in particular, its effect on his ability to pursue his rights before an industrial tribunal, |
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(d) there must be in force, when the adviser gives the advice, a policy of insurance covering the risk of a claim by the employee or worker in respect of loss arising in consequence of the advice, |
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(e) the agreement must identify the adviser, and |
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(f) the agreement must state that the conditions regulating compromise agreements under this Act are satisfied. |
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(5) In subsection (4) above- |
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"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, and |
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"qualified lawyer" means- |
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(a) as respects England and Wales or Northern Ireland-
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(i) a barrister (whether in practice as such or employed to give legal advice); or
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(ii) a solicitor who holds a practising certificate; and
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(b) as respects Scotland-
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(i) an advocate (whether in practice as such or employed to give legal advice); or
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(ii) a solicitor who holds a practising certificate.
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(6) For the purposes of the definition of "independent" in subsection (5) above, any two employers shall be treated as associated if- |
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(a) one is a company of which the other (directly or indirectly) has control; or |
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(b) both are companies of which a third person (directly or indirectly) has control; |
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and "associated employer" shall be construed accordingly. |
Publicity. |
47. - (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. |
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(2) The information required to be published under subsection (1) above includes, in particular, information about- |
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(a) the hourly rate for the time being prescribed under section 1 above; |
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(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; |
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(c) the methods of enforcing rights under this Act; and |
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(d) the persons to whom section 3 above applies and the provision made in relation to them by regulations under that section. |
Regulations. |
48. - (1) Except to the extent that this Act makes provision to the contrary, regulations under this Act- |
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(a) may make different provision for different cases or for different descriptions of person; and |
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(b) may make incidental, consequential, supplemental or transitional provision and savings. |
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(2) Paragraph (a) of subsection (1) above does not have effect in relation to regulations under section 1(3) above. |
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(3) Any power of a Minister of the Crown to make regulations under this Act shall be exercisable by statutory instrument. |
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(4) 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. |
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(5) Subsection (4) 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 19 or 44(2) or (4) above. |
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(6) A statutory instrument- |
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(a) which contains (whether alone or with other provisions) any regulations under section 19 above or 44(2) or (4), and |
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(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, |
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shall be subject to annulment in pursuance of a resolution of either House of Parliament. |
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(7) The power of the Department of Agriculture for Northern Ireland to make regulations under section 44 above shall be exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979; and any such regulations shall be subject to negative resolution within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954. |
Expenses. |
49. There shall be paid out of money provided by Parliament- |
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(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 |
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(b) any increase attributable to the provisions of this Act in the sums payable out of such money under any other Act. |
Repeals and revocations. |
50. 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. |
Meaning of "worker", "employee" etc. |
51. - (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. |
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(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. |
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(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)- |
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(a) a contract of employment; or |
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(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; |
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and any reference to a worker's contract shall be construed accordingly. |
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(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. |
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(5) In this Act "employment"- |
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(a) in relation to an employee, means employment under a contract of employment; and |
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(b) in relation to a worker, means employment under his contract; |
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and "employed" shall be construed accordingly. |
Interpretation. |
52. - (1) In this Act, unless the context otherwise requires,- |
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"civil proceedings" means proceedings before an industrial tribunal or civil proceedings before any other court; |
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"enforcement notice" shall be construed in accordance with section 17 above; |
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"government department" includes a Northern Ireland department, except in section 49(a); |
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"industrial tribunal", in relation to Northern Ireland, means a tribunal established under Article 3 of the Industrial Tribunals (Northern Ireland) Order 1996; |
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"notice" means notice in writing; |
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"pay reference period" shall be construed in accordance with section 1(4) above; |
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"penalty notice" shall be construed in accordance with section 19 above; |
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"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; |
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"prescribe" means prescribe by regulations; |
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"regulations" means regulations made by the Secretary of State, except in the case of regulations under section 44(2) or (4) above made by the Department of Agriculture for Northern Ireland. |
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(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. |
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(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. |
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(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. |
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(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. |
Short title, commencement and extent. |
53. - (1) This Act may be cited as the National Minimum Wage Act 1998. |
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(2) Apart from this section and any powers to make regulations (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 made by statutory instrument appoint. |
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(3) This Act extends to Northern Ireland. |