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| Restrictions on contracting out. |
47. - (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 employment 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 Employment 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 employment tribunal any proceedings within-
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(a) section 18(1)(dd) of the Employment 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 proceedings, |
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(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, |
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(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, |
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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) A person is a relevant independent adviser for the purposes of subsection (4)(c) above-
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(a) if he is a qualified lawyer, |
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(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, |
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(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 |
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(d) if he is a person of a description specified in an order made by the Secretary of State. |
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(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-
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(a) if he is employed by, or is acting in the matter for, the employer or an associated employer, |
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(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, |
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(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 |
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(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. |
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(7) In this section "qualified lawyer" means-
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(a) as respects England and Wales- |
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(i) a barrister (whether in practice as such or employed to give legal advice);
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(ii) a solicitor who holds a practising certificate; or
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(iii) a person other than a barrister or solicitor who is an authorised advocate or authorised litigator (within the meaning of the Courts and Legal Services Act 1990);
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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; and
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(c) as respects 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.
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(8) For the purposes of this section 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.
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(9) In the application of this section in relation to Northern Ireland-
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(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 |
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(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". |
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(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.
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(11) The Secretary of State may by order repeal subsections (9) and (10) above and this subsection.
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| Publicity. |
48. - (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. |
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Supplementary |
| Regulations and orders. |
49. - (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-
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(a) to make different provision for different cases or for different descriptions of person; and |
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(b) to 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 or an order under section 47 above.
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(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.
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(4) Any power of a Minister of the Crown to make regulations or an order under this Act shall be exercisable by statutory instrument.
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(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.
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(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 19 or 45(2) or (4) above.
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(7) A statutory instrument-
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(a) which contains (whether alone or with other provisions) any regulations under section 19 or 45(2) or (4) above or an order under section 47 above, 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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(8) The power of the Department of Agriculture for Northern Ireland to make regulations under section 45 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.
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| Expenses. |
50. 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. |
51. 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.
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| Meaning of "worker", "employee" etc. |
52. - (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.
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| Interpretation. |
53. - (1) In this Act, unless the context otherwise requires,-
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"civil proceedings" means proceedings before an employment 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 50(a) above; |
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"industrial tribunal" 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 45(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. |
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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.
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(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.
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| Short title, commencement and extent. |
54. - (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 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.
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(3) This Act extends to Northern Ireland.
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