|
|
|
|
|
| (4) | In subsection (3)(c) “the appropriate rate” means the rate that, on |
|
| the date the sum was paid or recovered, was specified in section 17 |
|
| of the Judgments Act 1838. |
|
| (5) | Where subsection (3) applies the notice of withdrawal must |
|
| indicate the effect of that subsection (but a failure to do so does not |
|
| make the withdrawal ineffective). |
|
| (6) | Section 21(6) has effect subject to this section and sections 22B and |
|
| |
| 22B | Replacement of enforcement notice |
|
| (1) | This section applies if an officer withdraws an enforcement notice. |
|
| (2) | The officer may at the same time as he serves the notice of |
|
| withdrawal (and if he is of the opinion mentioned in section 19(1) |
|
| or (2A)) serve on the employer a new enforcement notice under |
|
| section 19 relating to some or all of the workers to whom the old |
|
| enforcement notice related. |
|
| (3) | The new enforcement notice may not relate to any workers to |
|
| whom the old enforcement notice did not relate (but this is without |
|
| prejudice to any power that arises apart from this section to serve |
|
| an enforcement notice relating to those workers). |
|
| (4) | If the new enforcement notice contravenes subsection (3)— |
|
| (a) | the case shall be treated as falling within paragraph (b) (or, |
|
| if none of the workers included in the old enforcement |
|
| notice is included in the new enforcement notice, paragraph |
|
| (a)) of section 19(6); and |
|
| (b) | the new enforcement notice is not to be treated for the |
|
| purposes of sections 22A(2), 22C(1) and 22D(1) as served in |
|
| accordance with this section. |
|
| (5) | If the new enforcement notice includes a requirement under section |
|
| 19(2) as respects a worker, it must relate to the sum due to the |
|
| worker under section 17 in respect of the employer’s failure |
|
| previous to the new notice to remunerate the worker as mentioned |
|
| in section 19(2) (regardless of whether that failure occurred to any |
|
| extent before or after the service of the old notice). |
|
| (6) | Subsection (5) is subject to section 19(2B) to (2D) as they apply in |
|
| relation to the new enforcement notice; but section 19(2B) applies in |
|
| relation to that notice as if the reference to 6 years before the date on |
|
| which the notice is served were a reference to 6 years before the date |
|
| on which the old notice was served. |
|
| (7) | The new enforcement notice must— |
|
| (a) | indicate the differences between it and the old enforcement |
|
| notice that it is reasonable for the officer to consider are |
|
| |
| (b) | unless the notice of withdrawal states that section 22A(3) |
|
| applies, indicate the effect of sections 22C and 22D. |
|
| (8) | A failure to comply with subsection (7) does not make the new |
|
| enforcement notice ineffective, but a notice that does not comply |
|
|
|
|
|
|
| with that subsection is not to be treated for the purposes of sections |
|
| 22A(2), 22C(1) and 22D(1) as served in accordance with this section. |
|
| (9) | The reference in subsection (1) to an enforcement notice does not |
|
| include an enforcement notice served by virtue of this section. |
|
| 22C | Effect of replacement on penalties where section 22A(3) not |
|
| |
| (1) | If an enforcement notice is withdrawn and a new enforcement |
|
| notice is served in accordance with section 22B, this section applies |
|
| unless the notice withdrawing the old enforcement notice states |
|
| that section 22A(3) applies. |
|
| (2) | Where this section applies, subject to subsections (3) and (5) the |
|
| withdrawal of the old enforcement notice does not affect— |
|
| (a) | any penalty notice that before the withdrawal was served |
|
| under section 21 in respect of any non-compliance with the |
|
| |
| (b) | the power under section 21 to serve a penalty notice in |
|
| respect of any non-compliance with the old enforcement |
|
| notice before it was withdrawn. |
|
| |
| (a) | before the withdrawal of the old enforcement notice a |
|
| penalty notice was served which included an amount for a |
|
| day’s non-compliance with the old enforcement notice as |
|
| |
| (b) | that amount could not validly have been included in the |
|
| penalty notice if the old enforcement notice had been as it |
|
| should have been according to the new enforcement notice, |
|
| | the penalty notice shall be treated as withdrawn under section 22E |
|
| at the same time as the old enforcement notice is withdrawn. |
|
| (4) | Where subsection (3) applies, section 22F (power to replace penalty |
|
| |
| (a) | as if the cases mentioned in section 22F(1) as cases in which |
|
| that section applies included the case where a penalty notice |
|
| is by virtue of this section treated as withdrawn; and |
|
| (b) | as if the references in section 22F(2) to the amount and |
|
| particulars that the officer considers should have been |
|
| stated in the penalty notice were to the amount and |
|
| particulars that he considers should have been so stated if |
|
| the old enforcement notice had been as it should have been. |
|
| (5) | A penalty notice served by virtue of subsection (2)(b) must not |
|
| include an amount for a day’s non-compliance with the old |
|
| enforcement notice as respects a worker if, had the old enforcement |
|
| notice been as it should have been according to the new |
|
| enforcement notice, that amount could not validly have been |
|
| included in the penalty notice. |
|
| (6) | The words after paragraph (c) in section 22(3) shall not apply for the |
|
| purposes of any appeal against a penalty notice continued in effect |
|
| by virtue of subsection (2)(a) above or served by virtue of |
|
| |
|
|
|
|
|
| 22D Effect of replacement on appeals and civil proceedings where |
|
| section 22A(3) not applied |
|
| (1) | If an enforcement notice is withdrawn and a new enforcement |
|
| notice is served in accordance with section 22B, this section applies |
|
| unless the notice withdrawing the old enforcement notice states |
|
| that section 22A(3) applies. |
|
| (2) | If an appeal has been made under section 19(4) against the old |
|
| enforcement 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 new enforcement notice; and |
|
| (b) | the employer may exercise his right of appeal under section |
|
| 19(4) against the new enforcement notice only if he |
|
| withdraws the earlier appeal. |
|
| (3) | If an appeal is made under section 19(4) against the new |
|
| enforcement notice (or by virtue of subsection (2) above has effect |
|
| as if so made), section 19(9) and paragraphs (a) to (c) of section 21(7) |
|
| apply in relation to any penalty notice— |
|
| (a) | continued in effect by virtue of section 22C(2)(a), or |
|
| (b) | served by virtue of section 22C(2)(b), |
|
| | as they apply in relation to penalty notices served in respect of the |
|
| |
| (4) | Where this section applies— |
|
| (a) | after the withdrawal of the old enforcement notice no |
|
| complaint may be presented or other civil proceedings |
|
| commenced by virtue of section 20 in reliance on any non- |
|
| compliance with that notice before it was withdrawn; |
|
| (b) | any complaint or proceedings so presented or commenced |
|
| before the withdrawal of the old enforcement notice may be |
|
| proceeded with despite the withdrawal and replacement of |
|
| |
| 22E | Withdrawal of penalty notice |
|
| (1) | Where a penalty notice has been served on a person (“the |
|
| employer”) (and has not already been withdrawn or rescinded), an |
|
| officer acting for the purposes of this Act may withdraw the penalty |
|
| notice if he is of the opinion— |
|
| (a) | that, in the case of each of the allegations of failure to |
|
| comply with the enforcement notice in respect of which the |
|
| penalty notice was served, the facts are such that an officer |
|
| who was aware of them would have had no reason to serve |
|
| any penalty notice on the employer; or |
|
| (b) | that the amount of the financial penalty is too great because |
|
| the penalty notice is incorrect in some of the particulars |
|
| which affect that amount; or |
|
| (c) | that the amount of the financial penalty is too great because |
|
| its calculation is incorrect. |
|
|
|
|
|
|
| (2) | The withdrawal shall be effected by serving notice of the |
|
| withdrawal on the employer. |
|
| (3) | If a penalty notice is withdrawn and is not replaced under section |
|
| |
| (a) | any sum already paid or recovered in respect of the penalty |
|
| notice must be repaid to the employer with interest at the |
|
| appropriate rate running from the date when the sum was |
|
| |
| (b) | any appeal against the notice must be dismissed. |
|
| (4) | In subsection (3)(a) “the appropriate rate” means the rate that, on |
|
| the date the sum was paid or recovered, was specified in section 17 |
|
| of the Judgments Act 1838. |
|
| 22F | Replacement of penalty notice with notice imposing lower penalty |
|
| (1) | This section applies if a penalty notice is withdrawn because the |
|
| officer is of the opinion mentioned in section 22E(1)(b) or (c). |
|
| (2) | The officer may, at the same time as that notice is withdrawn, serve |
|
| by way of replacement a new penalty notice under section 21 in |
|
| |
| (a) | the amount of the financial penalty is the amount (which |
|
| must be less than that in the old penalty notice) that the |
|
| officer now considers should have been the amount stated |
|
| in the old penalty notice; and |
|
| (b) | the particulars stated under section 21(2)(c) to (e) are as he |
|
| now considers they should have been in that notice. |
|
| (3) | The new penalty notice must indicate— |
|
| (a) | the differences between it and the old penalty notice that it |
|
| is reasonable for the officer to consider are material, and |
|
| (b) | the effect of subsections (4) to (7), |
|
| | but a failure to comply with this subsection does not make the new |
|
| penalty notice ineffective. |
|
| (4) | If a sum was paid or recovered in respect of the old penalty notice— |
|
| (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 new penalty notice; and |
|
| (b) | any amount by which that sum (or total) exceeds the |
|
| amount payable under the new penalty notice must be |
|
| repaid to the 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) “the appropriate rate” means the rate that, on |
|
| the date mentioned in subsection (4)(b), was specified in section 17 |
|
| of the Judgments Act 1838. |
|
| (6) | Subsection (7) applies where— |
|
| (a) | a new penalty notice is served by virtue of this section; and |
|
| (b) | an appeal has been made under section 22(1) against the old |
|
| penalty notice and 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 new penalty notice; and |
|
| (b) | the employer may exercise his right of appeal under section |
|
| 22 against the new penalty notice only if he withdraws the |
|
| |
| (8) | The reference in subsection (1) to a penalty notice does not include |
|
| a penalty notice served by virtue of this section. |
|
| (9) | This section is without prejudice to any power arising apart from |
|
| this section to serve two or more penalty notices in respect of the |
|
| same enforcement notice.” |
|
| (2) | In section 19(6) of the National Minimum Wage Act 1998 (c. 39) (cases |
|
| where appeals against enforcement notices are allowable), in paragraph |
|
| |
| (a) | in sub-paragraph (ii), for “incorrect;” substitute “too great; or”; and |
|
| (b) | after that sub-paragraph insert— |
|
| | “(iii) t hat the notice contravenes subsection (2B) above;”. |
|
| (3) | In section 22(3) of that Act (cases where appeals against penalty notices are |
|
| allowable), for paragraphs (b) and (c) substitute— |
|
| “(b) | that the amount of the financial penalty is too great because |
|
| the penalty notice is incorrect in some of the particulars |
|
| which affect that amount; or |
|
| (c) | that the amount of the financial penalty is too great because |
|
| its calculation is incorrect.” |
|
| (4) | Nothing in subsections (2) and (3) affects sections 19 and 22 of the National |
|
| Minimum Wage Act 1998 (c. 39) as those sections have effect for the |
|
| purposes of the Agricultural Wages (Scotland) Act 1949 (c. 30). |
|
| |
| (a) | section 3A(2)(c) of the Agricultural Wages Act 1948 (c. 47), and |
|
| (b) | Article 8A(2)(c) of the Agricultural Wages (Regulation) (Northern |
|
| Ireland) Order 1977 (S.I. 1977/2151 (N.I.22)), |
|
| | (enforcement of agricultural wages legislation in England and Wales and |
|
| Northern Ireland respectively), for “22” substitute “22F”.” |
|
|
53 | |
|
54 | Page 48, line 3, at end insert— |
|
| “(4) | If money is provided to a trade union under this section, the terms |
|
| on which it is so provided shall be deemed to include a prohibition |
|
| (“a political fund prohibition”) on any of it being added to the |
|
| political fund of the union. |
|
| (5) | If a political fund prohibition is contravened, the Secretary of |
|
| |
| (a) | is entitled to recover from the trade union as a debt due to |
|
| him an amount equal to the amount of money added to the |
|
| union’s political fund in contravention of the prohibition |
|
|
|
|
|
|
| (whether or not that money continues to form part of the |
|
| |
| (b) | must take such steps as are reasonably practicable to |
|
| |
| (6) | An amount recoverable under subsection (5) is a liability of the |
|
| trade union’s political fund. |
|
| (7) | Subsection (5) does not prevent money provided to a trade union |
|
| under this section from being provided on terms containing further |
|
| sanctions for a contravention of the political fund prohibition.”” |
|
|
55 | Page 48, line 20, leave out “42” and insert “(Withdrawal and replacement of notices)” |
|
|
|
Page 50, line 25, at end insert— |
|
| “In section 82 of the 1992 Act (rules as to a union’s political fund), for |
|
subsection (4) substitute— |
|
“(4A) | Where an order has been made under this section, any person |
|
who is a member of the union and was a member at the time it |
|
was made is entitled to enforce obedience to the order as if he had |
|
made the complaint on which it was made. |
|
(4B) | An order made by the Certification Officer under this section |
|
|
(a) | in England and Wales, in the same way as an order of the |
|
|
(b) | in Scotland, in the same way as an order of the sheriff.” |
|
| In section 103 of the 1992 Act (complaints as regards passing of |
|
resolution on amalgamation or transfer of engagements), in subsection |
|
(8), for “application” substitute “complaint”.” |
|
57 | Page 51, line 13, at end insert— |
|
| | “ In section 229(4) of the 1992 Act (statement which must appear on |
|
| voting paper in ballot for industrial action), for “eight” substitute |
|
| |
58 | Page 52, line 10, leave out ““68(11)” substitute “68(4)”” and insert ““section 68(11)” |
|
| substitute “sections 68(4), 145F(2A) and 151(1B)”” |
|
59 | Page 52, line 39, leave out “after “paragraph” insert “19F(5),”.” and insert “for |
|
| “22(2), 27(2)” substitute “19F(5), 22(2), 27(2), 27D(3), 27D(4),”.” |
|
60 | Page 52, line 39, at end insert— |
|
| “( ) | In paragraph 40 (bar on further application after declaration by the CAC |
|
| of non-entitlement to recognition), in sub-paragraph (1)— |
|
| (a) | after “under paragraph” insert “27D(4) or”; and |
|
| (b) | for “held” substitute “arranged”. |
|
| “( ) | In paragraph 41 (bar on further application after declaration by the CAC |
|
| of end of bargaining arrangements), in sub-paragraph (1)— |
|
| (a) | after “under paragraph” insert “119D(4), 119H(5) or”; and |
|
|
|
|
|
|
| (b) | for “held” substitute “arranged”.” |
|
61 | Page 52, line 41, leave out “after “paragraph” insert “19F(5),”.” and insert “for |
|
| “22(2), 27(2)” substitute “19F(5), 22(2), 27(2), 27D(3), 27D(4),”.” |
|
62 | Page 52, line 42, at end insert— |
|
| “( ) | In paragraph 48 (invalidity of application after declaration by the CAC |
|
| of non-entitlement to recognition), in sub-paragraph (1)— |
|
| (a) | after “under paragraph” insert “27D(4) or”; and |
|
| (b) | for “held” substitute “arranged”. |
|
| “( ) | In paragraph 49 (invalidity of application after declaration by the CAC |
|
| of end of bargaining arrangements), in sub-paragraph (1)— |
|
| (a) | after “under paragraph” insert “119D(4), 119H(5) or”; and |
|
| (b) | for “held” substitute “arranged”.” |
|
63 | Page 53, line 12, at end insert— |
|
| “( ) | In paragraph 89(8) (effect of declaration of entitlement to recognition), |
|
| after “27(2)” insert “or 27D(3)”. |
|
| ( ) | In paragraph 89, after sub-paragraph (8) add— |
|
| “(9) | Paragraphs (a) and (b) of sub-paragraph (7) also apply if the |
|
| CAC issues a decaration under paragraph 27D(4).”” |
|
64 | Page 53, line 14, at end insert— |
|
| “( ) | In paragraph 119 (remedial orders) omit sub-paragraph (3).” |
|
65 | Page 53, line 22, leave out “after “paragraph” insert “19F(5) or”.” and insert “for |
|
| “22(2)” substitute “19F(5), 22(2), 27(2) or 27D(3)”.” |
|
66 | Page 53, leave out line 25 and insert “for “22(2)” substitute “19F(5), 22(2), 27(2) or |
|
| |
67 | Page 53, line 25, at end insert— |
|
| “( ) | In paragraph 133(2) (ballot on de-recognition under Part 5 of that |
|
| |
| (a) | in paragraph (a), for “reference in paragraph 119(2)(a)” substitute |
|
| “references in paragraphs 119(2)(a) and 119D(3)”; and |
|
| (b) | in paragraph (b), for “reference in paragraph 121(4)” substitute |
|
| “references in paragraphs 119A(2A)(a)(ii), 119E(1)(b) and |
|
| |
| “( ) | In paragraph 147(2) (ballot on de-recognition under Part 6 of that |
|
| |
| (a) | in paragraph (a), for “reference in paragraph 119(3)(a)” substitute |
|
| “references in paragraphs 119H(1) and 119I(1)(a)”; and |
|
| (b) | in paragraph (b), for “reference in paragraph 121(4)” substitute |
|
| “references in paragraphs 119A(2A)(a)(ii), 119E(1)(b) and |
|
| |
68 | Page 54, line 10, leave out paragraph 29 |
|
69 | Page 54, line 20, at end insert— |
|
| “31A (1) | Section 191 of that Act (application to the Crown) is amended as follows. |
|
| (2) | In subsection (4), omit the word “and” at the end of paragraph (d) and |
|
| after that paragraph insert— |
|
|