(15-21)

House of Commons

Session 2003 - 04
Internet Publications
Other Bills before Parliament

(  15  )

(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

22C.

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

material; and

(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

(  16  )

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

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)
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

old enforcement notice;

(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.

(3)
If—

(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

respects a worker, and

(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

notice) applies—

(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

subsection (2)(b) above.

(  17  )

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

new enforcement notice.

(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

that notice.

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.

(  18  )

(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

22F—

(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

paid or recovered;

(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

which—

(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.

(7)
In such a case—

(  19  )

(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

earlier appeal.

(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

(c)—

(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).

(5)
In each of—

(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”.”
Clause 42
53
Leave out Clause 42
Clause 51
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

State—

(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

(  20  )

(whether or not that money continues to form part of the

political fund); and

(b)
must take such steps as are reasonably practicable to

recover that amount.

(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.””
Clause 54
55
Page 48, line 20, leave out “42” and insert “(Withdrawal and replacement of notices)”
Schedule 1
56
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
may be enforced—
(a)
in England and Wales, in the same way as an order of the
county court;
(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

“twelve”.”
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

(  21  )

(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

27D(3)”.”
67
Page 53, line 25, at end insert—

     “( )
In paragraph 133(2) (ballot on de-recognition under Part 5 of that

Schedule)—

(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

121(4)”.

     “( )
In paragraph 147(2) (ballot on de-recognition under Part 6 of that

Schedule)—

(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

121(4)”.”
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—