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Lord Triesman: My Lords, in circumstances where an individual's subsidiary behaviour is considered by an employment tribunal, without question it will have the expertise to determine what information was generally accessible by looking at the union's statements and documentation at the time of the exclusion or expulsion and taking account of availability and whether there was any reasonable impediment to someone seeing that material. Perhaps I may say that employment tribunals do that routinely when they consider the general platform of equality and discrimination, in particular when it is said that the union might have been the body that discriminated. That is part of their expertise in looking across the evidence. The evidence is always looked at in very considerable detail.
"(1C) For the purposes of subsection (1B), it is immaterial whether the complainant was a member of the union at the time of the conduct contrary to the rule or objective.
(1D) A declaration by virtue of subsection (1B)(b) shall not be made unless the union shows that, at the time of the conduct of the complainant which was contrary to the objective in question, it was reasonably practicable for that objective to be ascertained
(a) if the complainant was not at that time a member of the union, by a member of the general public, and
(b) if he was at that time a member of the union, by a member of the union."
(1) Section 19 of the National Minimum Wage Act 1998 (c. 39) (enforcement notices) is amended as follows.
8 Sept 2004 : Column 666
(2) After subsection (2B) insert
"(2C) Where an enforcement notice imposes a requirement under subsection (2) above, the amount specified in the notice as the sum due to the worker under section 17 above need not include any sum so due to him in respect of any very recent pay reference period (although the amount so specified may include any such sum).
(2D) In subsection (2C) above a "very recent" pay reference period means a pay reference period ending less than 3 months before the date on which the notice is served."
(3) In subsection (3) for "The same" substitute "An".
(4) Nothing in this section affects section 19 of the National Minimum Wage Act 1998 (c. 39) as it has effect for the purposes of the Agricultural Wages (Scotland) Act 1949 (c. 30)."
The noble Lord said: My Lords, in speaking to Amendment No. 35, I shall speak also to Amendments Nos. 36 to 41. This is a short package of further amendments that make detailed improvements to the existing procedures for enforcing the minimum wage. Amendment No. 35 makes it clear that while enforcement notices relating to the arrears due must cover all pay periods up to three months before the date of the notice, they need not cover more recent periods. This is helpful because in most cases it is impractical for notices to cover pay periods running right up to the date of their issue.
Amendment No. 36 has the effect that if a replacement enforcement notice is served on an employer that incorrectly covers any new workers who were not covered by the first notice, it is treated as a replacement notice that attracts the automatic consequences set out in new Section 22A(3) of the National Minimum Wage Act 1998, as inserted by Clause 44(1) of this Bill. In particular, it will not be possible to issue any penalty notice following on from the first enforcement notice, and any penalty notice served in respect of the first notice will cease to have effect. The overall effect is to deter compliance officers from issuing incorrect notices in this way.
Amendment No. 37 makes it clear that when a replacement notice is issued in respect of a first notice that makes use of all or nearly all of the six-year limitation periodthe period for which arrears may be recoveredthe replacement notice runs back from the date when the first enforcement notice was issued and not the date of issue of the replacement notice. The amendment avoids the unsatisfactory position that would result if the replacement notice could not go as far back as the first notice.
Amendment No. 39 has the effect that the new provisions allowing for the withdrawal and replacement of enforcement and penalty notices will apply to the enforcement of the agricultural minimum wage in England, Wales and Northern Ireland, as well as the national minimum wage.
"( ) 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."
Page 48, line 17, at end insert
"( ) Subsection (4) 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."
Page 51, line 35, leave out from "paragraph" to end of line 36 and insert "(c)
(a) in sub-paragraph (ii), for "incorrect;" substitute "too great; or"; and
(b) after that sub-paragraph insert
"(iii) that the notice contravenes subsection (2B) above;"."
Page 51, line 46, at end insert
"( ) 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"."
"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."
8 Sept 2004 : Column 668
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"."
Page 63, 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"."
Page 64, line 10, leave out ""68(11)" substitute "68(4)"" and insert ""section 68(11)" substitute "sections 68(4), 145F(2A) and 151(1B)""
Page 65, line 35, at end insert
"( ) In paragraph 119 (remedial orders) omit sub-paragraph (3)."
Page 66, line 6, after "paragraphs" insert "119A(2A)(a)(ii),"
Page 66, line 10, leave out "119(3)(a) and 119H(1)" and insert "119H(1) and 119I(1)(a)"
Page 66, line 12, after "paragraphs" insert "119A(2A)(a)(ii),"
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