|
| |
| |
| |
| |
| |
| |
Make provision about the enforcement of entitlements to annual leave under |
| |
the Working Time Regulations 1998 and to amend the National Minimum |
| |
Wage Act 1998 in that connection; and for connected purposes. |
| |
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and |
| |
consent of the Lords Spiritual and Temporal, and Commons, in this present |
| |
Parliament assembled, and by the authority of the same, as follows:— |
| |
| |
1 | Purposes and interpretation |
| |
(1) | This Act makes provision about the enforcement of entitlements to annual |
| |
leave under the Working Time Regulations. |
| |
(2) | For the purposes of this Act— |
| 5 |
“the enforcement provisions of the National Minimum Wage Act” has the |
| |
meaning given by section 2(2); |
| |
“entitlements to annual leave under the Working Time Regulations” |
| |
| |
(a) | the entitlements under regulations 13 to 16 of the Working Time |
| 10 |
| |
(b) | the entitlement under regulation 17, so far as it relates to an |
| |
entitlement to annual leave; |
| |
“the National Minimum Wage Act” means the National Minimum Wage |
| |
| 15 |
“the Working Time Regulations” means the Working Time Regulations |
| |
| |
2 | Extension of enforcement provisions of the National Minimum Wage Act |
| |
(1) | The enforcement provisions of the National Minimum Wage Act shall have |
| |
effect for the purposes of this Act as they have effect for the purposes of that |
| 20 |
Act, but with the modifications specified in subsections (3) to (12) of this |
| |
| |
| |
| |
| |
|
| |
| |
(2) | In subsection (1) of this section, “the enforcement provisions of the National |
| |
Minimum Wage Act” means the following provisions of that Act— |
| |
(a) | sections 9 to 11 (records); |
| |
(b) | sections 14 to 16A (powers of officers and information obtained by |
| |
| 5 |
(c) | sections 17 to 22F (enforcement of right to national minimum wage); |
| |
(d) | sections 23 and 24 (right not to suffer detriment); |
| |
(e) | section 28 (evidence: reversal of burden of proof in civil proceedings); |
| |
(f) | sections 31 to 33 (offences); |
| |
(g) | section 48 (superior employers); and |
| 10 |
(h) | section 49 (restriction on contracting out). |
| |
(3) | In the application of any provision of the National Minimum Wage Act by |
| |
subsection (1) of this section— |
| |
(a) | any reference to that Act, other than a reference to a specific provision |
| |
of it, includes a reference to this Act; |
| 15 |
(b) | any reference to a person (however described) who qualifies for the |
| |
national minimum wage shall be taken as a reference to a person who |
| |
has entitlements to annual leave under the Working Time Regulations; |
| |
(c) | subject to paragraph (b) of this subsection, any reference to the national |
| |
minimum wage, other than a reference to the hourly amount of the |
| 20 |
national minimum wage, shall be taken as a reference to the |
| |
entitlements to annual leave under the Working Time Regulations; |
| |
(d) | subject to paragraph (b) of this subsection, any reference to qualifying |
| |
for the national minimum wage shall be taken as a reference to being |
| |
entitled to annual leave under the Working Time Regulations; and |
| 25 |
(e) | subject to paragraph (b) of this subsection, any reference to |
| |
remuneration for any pay reference period by an employer at a rate at |
| |
least equal to the national minimum wage shall be taken as a reference |
| |
to the provision by an employer of entitlements to annual leave under |
| |
the Working Time Regulations. |
| 30 |
(4) | In the application of section 10 of the National Minimum Wage Act (worker’s |
| |
right of access to records) by subsection (1) of this section— |
| |
(a) | in subsection (3), for the words from “been” to the end, substitute the |
| |
words “receiving his entitlements to annual leave under the Working |
| |
| 35 |
(b) | in subsection (10), in the definition of “relevant records”, for the words |
| |
from “relate” to the end, substitute the words “received his entitlements |
| |
to annual leave under the Working Time Regulations”. |
| |
(5) | In the application of section 11 of the National Minimum Wage Act (failure of |
| |
employer to allow access to records) by subsection (1) of this section, for |
| 40 |
subsection (2)(b), substitute— |
| |
“(b) | make such award as the employment tribunal considers |
| |
appropriate and proportionate.” |
| |
(6) | In the application of section 15 of the National Minimum Wage Act |
| |
(information obtained by officers) by subsection (1) of this section, after |
| 45 |
subsection (3A) (which is inserted by paragraph 7(2) of Schedule 1 to this Act), |
| |
| |
“(3B) | Information obtained for the purposes of the Annual Leave Entitlement |
| |
(Enforcement) Act 2005 may be used for the purposes of this Act.” |
| |
| |
| |
|
| |
| |
(7) | In the application of section 16 of the National Minimum Wage Act |
| |
(information obtained by agricultural wages officers) by subsection (1) of this |
| |
section, after subsection (2A) (which is inserted by paragraph 7(3) of Schedule |
| |
| |
“(2B) | Information obtained for the purposes of the Annual Leave Entitlement |
| 5 |
(Enforcement) Act 2005 may be used for the purposes of the |
| |
Agricultural Wages Act 1948.” |
| |
(8) | In the application of section 16A of the National Minimum Wage Act |
| |
(disclosure of information by officers) by subsection (1) of this section, in |
| |
subsection (5), in the definition of “the relevant legislation”, after paragraph |
| 10 |
| |
“(aa) | in relation to an enforcement officer acting for the purposes of |
| |
the Annual Leave Entitlement (Enforcement) Act 2005, that |
| |
| |
(9) | In the application of section 17 of the National Minimum Wage Act (non- |
| 15 |
compliance) by subsection (1) of this section, for the words from “wage” to the |
| |
end of the section, substitute the words “does not receive those entitlements, he |
| |
shall be taken to be entitled to such leave or payment or both as is necessary to |
| |
enable him to receive those entitlements”. |
| |
(10) | In the application of section 19 of the National Minimum Wage Act (power of |
| 20 |
officer to issue enforcement notice) by subsection (1) of this section— |
| |
(a) | in subsection (2), after the words “the sum due to the worker”, insert the |
| |
words “or to provide to the worker within such time as may be |
| |
specified the leave to which the worker is entitled”; and |
| |
(b) | in subsection (6)(c), after sub-paragraph (i), insert— |
| 25 |
“(ia) | that no leave entitlement was due to the worker |
| |
under section 17 above; or”. |
| |
(11) | In the application of section 20 of the National Minimum Wage Act (non- |
| |
compliance: power of officer to sue on behalf of worker) by subsection (1) of |
| |
this section, in subsection (1)(a), after the word “sums”, insert the words “or |
| 30 |
| |
(12) | The power to make regulations under section 9 of the National Minimum |
| |
Wage Act (duty of employers to keep records) includes power to make |
| |
regulations for the purposes of this Act. |
| |
| 35 |
| |
(1) | The enforcement provisions of the National Minumum Wage Act relating to |
| |
entitlements to annual leave under the Working Time Regulations (as applied |
| |
by section 2(1) of this Act) shall apply to offshore employment. |
| |
(2) | The provisions of Articles 2 to 4 of the National Minimum Wage (Offshore |
| 40 |
Employment) Order 1999 (S.I. 1999/1128) apply for the purposes of this section |
| |
as they apply for the purposes of the National Minimum Wage Act. |
| |
(3) | In this section “offshore employment” has the meaning given by section 42 of |
| |
the National Minimum Wage Act (power to apply Act to offshore |
| |
| 45 |
| |
| |
|
| |
| |
4 | Relevant Crown employment |
| |
(1) | The provisions of this Act shall have effect in relation to relevant Crown |
| |
employment and persons in relevant Crown employment as they have effect in |
| |
relation to other employment and other workers. |
| |
(2) | For the purposes of this Act “relevant Crown employment” means |
| 5 |
employment under or for the purposes of a government department or any |
| |
officer or body exercising on behalf of the Crown functions conferred by |
| |
statutory provision other than employment of a person to whom subsection (4) |
| |
| |
(3) | For the purposes of the application of the other provisions of this Act in |
| 10 |
relation to Crown employment in accordance with subsection (1)— |
| |
(a) | references to an employee or a worker shall be construed as references |
| |
to a person in Crown employment; |
| |
(b) | reference to a contract of employment or a worker’s contract shall be |
| |
construed as references to the terms of employment of a person in |
| 15 |
| |
(c) | references to dismissal, or to the termination of a worker’s contract, |
| |
shall be construed as references to the termination of Crown |
| |
| |
| 20 |
(a) | applies to a person serving as a member of the naval, military or air |
| |
| |
(b) | does not apply to a person employed by an association established for |
| |
the purposes of Part 9 of the Reserve Forces Act 1996 (c. 14) (Reserve |
| |
Forces Appeal Tribunals). |
| 25 |
| |
(1) | Subject to subsection (3), the provisions of this Act shall have effect in relation |
| |
employment as a relevant member of the House of Lords staff as they have |
| |
effect in relation to other employment. |
| |
(2) | Nothing in any rule of law or the law or practice of Parliament prevents a |
| 30 |
relevant member of the House of Lords staff from bringing before the High |
| |
Court or a county court any claim under this Act. |
| |
(3) | This section does not apply to section 21 of the National Minimum Wage Act |
| |
(financial penalty for non-compliance), as applied by section 2(1) of this Act. |
| |
(4) | In this section “relevant member of the House of Lords staff” means any person |
| 35 |
who is employed under a worker’s contract with the Corporate Office of the |
| |
| |
| |
(1) | Subject to subsection (3), the provisions of this Act shall have effect in relation |
| |
employment as a relevant member of the House of Commons staff as they have |
| 40 |
effect in relation to other employment. |
| |
(2) | Nothing in any rule of law or the law or practice of Parliament prevents a |
| |
relevant member of the House of Commons staff from bringing before the |
| |
High Court or a county court any claim under this Act. |
| |
| |
| |
|
| |
| |
(3) | This section does not apply to section 21 of the National Minimum Wage Act |
| |
(financial penalty for non-compliance), as applied by section 2(1) of this Act. |
| |
(4) | In this section “relevant member of the House of Commons staff” means any |
| |
| |
(a) | who was appointed by the House of Commons Commission; or |
| 5 |
(b) | who is a member of the Speaker’s personal staff. |
| |
Miscellaneous and final provisions |
| |
7 | Consequential amendments and revocations |
| |
(1) | Schedule 1 (which contains consequential amendments) shall have effect. |
| |
(2) | Schedule 2 (which contains revocations) shall have effect. |
| 10 |
| |
There shall be paid out of money provided by Parliament— |
| |
(a) | any expenditure incurred by the Secretary of State in consequence of this Act, |
| |
| |
(b) | any increase attributable to this Act in the sums payable out of money so |
| 15 |
provided under any other Act. |
| |
9 | Short title, commencement and extent |
| |
(1) | This Act may be cited as the Annual Leave Entitlement (Enforcement) Act |
| |
| |
(2) | Sections 1 to 7 of this Act shall come into force on such day or days as the |
| 20 |
Secretary of State may by order made by statutory instrument appoint; and |
| |
different days may be appointed for different purposes. |
| |
(3) | Subject to subsection (4), the provisions contained in the Schedules shall have |
| |
the same extent as the provisions that are thereby amended or revoked. |
| |
(4) | This Act does not extend to Northern Ireland. |
| 25 |
| |
| |
|
