Employment Bill [HL]

House of Commons

Session 2007 - 08
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Other Bills before Parliament

Employment Bill [HL]

Employment Bill [HL]
12

(4)
The replacement notice may relate to a pay reference period ending
after the date of service of the original notice.
(5)
Section 19(7) above applies in relation to the replacement notice as if the
reference to six years before the date of service of the notice were a
reference to six years before the date of service of the original notice.
5
(6)
The replacement notice must—
(a)
indicate the differences between it and the original notice that it
is reasonable for the officer to consider are material; and
(b)
indicate the effect of section 19H below.
(7)
Failure to comply with subsection (6) above does not make the
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replacement notice ineffective.
(8)
Where a replacement notice is withdrawn under section 19F above, no
further replacement notice may be served under subsection (1) above
pursuant to the withdrawal.
(9)
Nothing in this section affects any power that arises apart from this
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section to serve a notice of underpayment in relation to any worker.
19H
Effect of replacement notice of underpayment
(1)
This section applies where a notice of underpayment is withdrawn
under section 19F above and a replacement notice is served in
accordance with section 19G above.
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(2)
If an appeal has been made under section 19C above against the
original notice and the appeal has not been withdrawn or finally
determined before the time when that notice is withdrawn—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 replacement notice; and
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(b)
the employer may exercise his right of appeal under section 19C
above against the replacement notice only if he withdraws the
earlier appeal.
(3)
After the withdrawal no complaint may be presented or other civil
proceedings commenced by virtue of section 19D above in reliance on
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any non-compliance with the notice before it was withdrawn; but any
complaint or proceedings so commenced before the withdrawal may be
proceeded with despite the withdrawal.
(4)
If a sum was paid by or recovered from the employer by way of
financial penalty under the original notice—
35
(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 replacement notice; and
(b)
any amount by which that sum (or total) exceeds the amount
payable under the replacement notice must be repaid to the
40
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) above “the appropriate rate” means the rate that, on
the date mentioned in that provision, was specified in section 17 of the
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Judgments Act 1838.”

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(2)
In any period after the coming into force of subsection (1) above and before the
coming into force of section 62 of the Tribunals, Courts and Enforcement Act
2007 (c. 15), section 19E(a) of the National Minimum Wage Act 1998 (c. 39), as
substituted by subsection (1) above, shall have effect as if for “under section 85
of the County Courts Act 1984” there were substituted “by execution issued
5
from the county court”.
(3)
In the National Minimum Wage Act 1998, in section 51 (regulations and
orders), in subsections (6) and (7)(a), the words “21 or” are repealed.
(4)
In the Employment Tribunals Act 1996 (c. 17), in section 4 (composition of
employment tribunal), in subsection (3)(cd), for “section 19 or 22” there is
10
substituted “section 19C”.
(5)
In the Commissioners for Revenue and Customs Act 2005 (c. 11), in section 44
(payment into Consolidated Fund), subsection (2)(f) is repealed.
(6)
In the Agricultural Wages Act 1948 (c. 47), in section 3A(2)(c) (enforcement of
agricultural legislation in England and Wales), for “22F” there is substituted
15
“19H”.
(7)
Nothing in this section (or Part 2 of the Schedule) affects any provision of the
National Minimum Wage Act 1998 as that provision has effect for the purposes
of—
(a)
the Agricultural Wages (Scotland) Act 1949 (c. 30), or
20
(b)
the Agricultural Wages (Regulation) (Northern Ireland) Order 1977 (SI
1977/2151) (N.I.22).
10
Powers of officers to take copies of records
(1)
In the National Minimum Wage Act 1998, section 14 (powers of officers) is
amended as specified in subsections (2) and (3).
25
(2)
In subsection (1)(a), the words “any material part of” are repealed.
(3)
After subsection (3) there is inserted—
“(3A)
The power of an officer to copy records under subsection (1)(a) includes
a power to remove such records from the place where they are
produced to him in order to copy them; but such records must be
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returned as soon as reasonably practicable to the relevant person by
whom they are produced.”
(4)
Nothing in this section (or Part 3 of the Schedule) affects section 14 of the
National Minimum Wage Act 1998 as it has effect for the purposes of—
(a)
the Agricultural Wages (Scotland) Act 1949, or
35
(b)
the Agricultural Wages (Regulation) (Northern Ireland) Order 1977 (SI
1977/2151) (N.I.22).
11
Offences: mode of trial and penalties
(1)
In the National Minimum Wage Act 1998, in section 31 (offences), in subsection
(9), for the words from “on summary conviction” to the end there is
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substituted—
“(a)
on conviction on indictment, to a fine, or
(b)
on summary conviction, to a fine not exceeding the statutory
maximum”.

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(2)
In that Act, in section 33 (proceedings for offences), subsections (2) to (5) are
repealed.
(3)
Nothing in this section (or Part 4 of the Schedule) affects section 31 or 33 of the
National Minimum Wage Act 1998 (c. 39) as it has effect for the purposes of—
(a)
the Agricultural Wages (Scotland) Act 1949 (c. 30), or
5
(b)
the Agricultural Wages (Regulation) (Northern Ireland) Order 1977 (SI
1977/2151) (N.I.22).
12
Powers to investigate criminal offences
(1)
In the Finance Act 2007 (c. 11), in section 84 (criminal investigations: powers of
Revenue and Customs), in subsection (3), for “13 to” there is substituted “14,”.
10
(2)
In the Criminal Law (Consolidation) (Scotland) Act 1995 (c. 39), in section 23A
(investigation of offences by Revenue and Customs), in subsection (2)(b), for
“13 to” there is substituted “14,”.
13
Cadet Force Adult Volunteers
In the National Minimum Wage Act 1998, after section 37 there is inserted—
15
“37A
Cadet Force Adult Volunteers
(1)
A person (not being a person to whom section 37(1) above applies)
who—
(a)
is a member of any of the forces specified in subsection (2)
below, and
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(b)
assists the activities of those forces otherwise than in the course
of Crown employment,

does not qualify for the national minimum wage in respect of anything
done by him in so assisting those activities.
(2)
The forces referred to in subsection (1) above are—
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(a)
the Combined Cadet Force;
(b)
the Sea Cadet Corps;
(c)
the Army Cadet Force;
(d)
the Air Training Corps.”
14
Voluntary workers
30
In the National Minimum Wage Act 1998, in section 44 (voluntary workers),
after subsection (1) there is inserted—
“(1A)
For the purposes of subsection (1)(a) above, expenses which—
(a)
are incurred in order to enable the worker to perform his duties,
(b)
are reasonably so incurred, and
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(c)
are not accommodation expenses,

are to be regarded as actually incurred in the performance of his
duties.”

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Employment agencies
15
Offences: mode of trial and penalties
In the Employment Agencies Act 1973 (c. 35), in each of sections 3B, 5(2) and
6(2), for the words from “on summary conviction” to the end there is
substituted—
5
“(a)
on conviction on indictment, to a fine;
(b)
on summary conviction, to a fine not exceeding the statutory
maximum.”
16
Enforcement powers
(1)
In the Employment Agencies Act 1973, section 9 (inspection) is amended as
10
follows.
(2)
In subsection (1), in paragraph (b)—
(a)
after “premises and” there is inserted “(i)”;
(b)
after “thereunder” there is inserted—
“(ii)
any financial records or other financial
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documents not falling within paragraph (i)
which he may reasonably require to inspect for
the purpose of ascertaining whether the
provisions of this Act and of any regulations
made thereunder are being complied with or of
20
enabling the Secretary of State to exercise his
functions under this Act;”.
(3)
In that subsection, paragraph (d) and the preceding “and” are repealed.
(4)
In subsection (1A), for the words from “he may require” to the end there is
substituted “the officer may by notice in writing require the person carrying on
25
the employment agency or employment business to furnish him with the
record or other document or information at such time and place as he may
specify.”
(5)
After subsection (1A) there is inserted—
“(1AA)
Where a person carrying on an employment agency or employment
30
business fails to comply with subsection (1A) in relation to any record
or other document or information and the officer has reasonable cause
to believe that the record or other document or information is kept by—
(a)
a person concerned with the carrying on of the employment
agency or employment business, or
35
(b)
a person formerly so concerned,

the officer may by notice in writing require that person to furnish him
with the record or other document or information at such time and
place as he may specify.
(1AB)
Where a person carrying on an employment agency or employment
40
business fails to comply with subsection (1A) in relation to any
financial record or other financial document which is kept by a bank,
the officer may by notice in writing require the bank to furnish the
record or other document to him at such time and place as he may
specify.
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Employment Bill [HL]
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(1AC)
In subsection (1AB), “bank” means a person who has permission under
Part 4 of the Financial Services and Markets Act 2000 to accept
deposits.”
(6)
After subsection (1AC) (as inserted by subsection (5) above), there is inserted—
“(1AD)
An officer may take copies of any record or other document inspected
5
by or furnished to him under this section.
(1AE)
An officer may, for the purposes of subsection (1AD), remove a record
or other document from the premises where it is inspected by or
furnished to him; but he must return it as soon as reasonably
practicable.”
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(7)
In subsection (1C), for “subsection (1)” there is substituted “this section”.
(8)
In subsection (3)—
(a)
for “paragraph (a), (b) or (d) of subsection (1) of this section” there is
substituted “subsection (1)(a) or (b), (1AD) or (1AE)”;
(b)
for “paragraph (c) of that subsection or under subsection (1A)” there is
15
substituted “subsection (1)(c), (1A), (1AA) or (1AB)”.
(9)
In subsection (4)(a), the words “subsection (1) of” are repealed.
17
Offences by partnerships in Scotland
In the Employment Agencies Act 1973 (c. 35), in section 11 (offences by bodies
corporate)—
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(a)
the existing provision becomes subsection (1), and
(b)
after that subsection there is inserted—
“(2)
Where an offence under this Act committed by a partnership in
Scotland is proved to have been committed with the consent or
connivance of, or to have been attributable to any neglect on the
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part of, a partner or a person purporting to act as a partner, he,
as well as the partnership, shall be guilty of the offence and shall
be liable to be proceeded against and punished accordingly.”
Trade union membership
18
Exclusion or expulsion from trade union for membership of political party
30
(1)
The Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) is
amended as follows.
(2)
In section 174 (right not to be excluded or expelled from union) after subsection
(4B) there is inserted—
“(4C)
Conduct which consists in an individual’s being or having been a
35
member of a political party is not conduct falling within subsection
(4A) if membership of that political party is contrary to—
(a)
a rule of the trade union, or
(b)
an objective of the trade union.
(4D)
For the purposes of subsection (4C)(b) in the case of conduct consisting
40
in an individual’s being a member of a political party, an objective is to
be disregarded—

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(a)
in relation to an exclusion, if it is not reasonably practicable for
the objective to be ascertained by a person working in the same
trade, industry or profession as the individual;
(b)
in relation to an expulsion, if it is not reasonably practicable for
the objective to be ascertained by a member of the union.
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(4E)
For the purposes of subsection (4C)(b) in the case of conduct consisting
in an individual’s having been a member of a political party, an
objective is to be disregarded—
(a)
in relation to an exclusion, if at the time of the conduct it was not
reasonably practicable for the objective to be ascertained by a
10
person working in the same trade, industry or profession as the
individual;
(b)
in relation to an expulsion, if at the time of the conduct it was
not reasonably practicable for the objective to be ascertained by
a member of the union.
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(4F)
Where the exclusion or expulsion of an individual from a trade union
is wholly or mainly attributable to conduct which consists of an
individual’s being or having been a member of a political party but
which by virtue of subsection (4C) is not conduct falling within
subsection (4A), the exclusion or expulsion is not permitted by virtue of
20
subsection (2)(d) if any one or more of the conditions in subsection (4G)
apply.
(4G)
Those conditions are—
(a)
the decision to exclude or expel is taken otherwise than in
accordance with the union’s rules;
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(b)
the decision to exclude or expel is taken unfairly;
(c)
the individual would lose his livelihood or suffer other
exceptional hardship by reason of not being, or ceasing to be, a
member of the union.
(4H)
For the purposes of subsection (4G)(b) a decision to exclude or expel an
30
individual is taken unfairly if (and only if)—
(a)
before the decision is taken the individual is not given—
(i)
notice of the proposal to exclude or expel him and the
reasons for that proposal, and
(ii)
a fair opportunity to make representations in respect of
35
that proposal, or
(b)
representations made by the individual in respect of that
proposal are not considered fairly.”
(3)
In section 176 (remedies) in subsection (1D)(a), for “a member of the general
public” substitute “a person working in the same trade, industry or profession
40
as the complainant”.
General
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Repeals
The Schedule contains repeals.