| Statutory Instruments 1999 No. 584 The National Minimum Wage Regulations 1999 - continued |
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Workers who qualify for the national minimum wage at a different rate
(b) is within the first six months after the commencement of his employment with an employer; (c) has not previously been employed either by that employer or by an associated employer of that employer; and (d) has entered into an agreement with the employer requiring the worker to take part in accredited training on at least 26 days between the commencement of his employment or, if later, the day upon which he entered into the agreement, and the end of the six month period referred to in sub-paragraph (b).
(3) In this regulation "accredited training" means-
(b) training by means of a course leading to a qualification accredited or awarded by the Scottish Qualifications Authority, other than qualifications known as Standard Grade, Higher Grade and Certificate of Sixth Year Studies; (c) a course which prepares students in Northern Ireland to obtain a vocational qualification which corresponds to, or falls within a class corresponding to, any qualification or class of qualification approved by the Secretary of State for the purposes of paragraph (a) of Schedule 2 to the Further and Higher Education Act 1992; (d) training provided by the worker's employer where-
(ii) the training is recognised in Scotland, both as being directed towards the achievement of a Scottish Vocational Qualification at any level, and as including at least 50% of the requirements of the relevant level, by an awarding body accredited for this purpose by virtue of an accreditation agreement with the Scottish Qualifications Authority to which it is a party, (iii) the training is recognised in Northern Ireland, both as being directed towards the achievement of a National Vocational Qualification at any level, and as included at least 50% of the requirements of the relevant level, by an awarding body accredited for this purpose by virtue of an accreditation agreement with the Qualifications and Curriculum Authority to which it is a party;
(e) where the worker is engaged as part of his work in a training scheme falling within the provision made for persons of 18 or over who (at the time of commencing their engagement in the scheme) have not attained the age of 25, under the arrangements made by the Government known as the "New Deal" (or under any other title by which those arrangements may subsequently become known)-
(ii) in Scotland, training by means of a course or programme of a description mentioned in section 6(1) of the Further and Higher Education (Scotland) Act 1992[12], (iii) in Northern Ireland, training by means of a relevant course.
(4) For the purposes of paragraph (2)(b) a worker does not commence employment with an employer where he has previously been employed by another employer and continuity of employment is preserved between the two employments by or under any enactment.
(b) both are companies of which a third person (directly or indirectly) has control.
(6) For the purposes of paragraph (3)(e)(iii) "relevant course" means-
(b) a course which prepares students to qualify for-
(ii) the General Certificate of Education at Advanced Level or Advanced Supplementary Level (including special papers);
(c) a course which corresponds to any course for the time being approved by the Secretary of State under, and for the purposes of, paragraph (c) of Schedule 2 to the Further and Higher Education Act 1992, which prepares students for entry to a course of higher education;
(7) Paragraphs (1) and (2) do not apply in relation to a worker who, by virtue of regulation 12, does not qualify for the national minimum wage. Method of determining whether the national minimum wage has been paid 14. - (1) The hourly rate paid to a worker in a pay reference period shall be determined by dividing the total calculated in accordance with paragraph (2) by the number of hours specified in paragraph (3). (2) the total referred to in paragraph (1) shall be calculated by subtracting from the total of remuneration in the pay reference period determined under regulation 30, the total of reductions determined under regulations 31 to 37. (3) The hours referred to in paragraph (1) are the total number of hours of time work, salaried hours work, output work and unmeasured work worked by the worker in the pay reference period that have been ascertained in accordance with regulations 20 to 29. Provisions in relation to time work 15. - (1) In addition to time when a worker is working, time work includes time when a worker is available at or near a place of work, other than his home, for the purpose of doing time work and is required to be available for such work except that, in relation to a worker who by arrangement sleeps at or near a place of work, time during the hours he is permitted to sleep shall only be treated as being time work when the worker is awake for the purpose of working. (2) Time when a worker is travelling for the purpose of duties carried out by him in the course of time work shall be treated as being time work except where-
(b) the travel is between the worker's home and his place of work or between an address where he is temporarily residing, other than for the purposes of performing work, and his place of work.
(3) For the purposes of paragraph (2)(a) travelling is incidental to the duties carried out by a worker unless duties involved in his work are necessarily carried out in the course of the travelling, as in the case of a worker driving a bus, serving in a bar on a train or whose main duty is to transport items from one place to another.
(b) the travel is between the worker's home and his place of work or between an address where he is temporarily residing, other than for the purposes of performing work, and his place of work.
(3) For the purposes of paragraph (2)(a) travelling is incidental to the duties carried out by a worker unless duties involved in his work are necessarily carried out in the course of the travelling, as in the case of a worker driving a bus, serving in a bar on a train or whose main duty is to transport items from one place to another.
(b) travelling, when he would otherwise be working, between a place of work and a place where he is receiving such training, or (c) receiving such training at his normal place of work, shall be treated as working hours for the purpose of and to the extent mentioned in regulation 22(3)(d) and (4)(b).
Provisions in relation to output work
(b) except in the case of a worker whose work consists in producing tangible items at his home, premises to which he reports.
(2) A worker shall not be treated as doing output work, for the purpose of regulation 24, during time when he is engaged in taking industrial action nor as having worked, for the purpose of regulation 26, during such time.
(b) travelling, when he would otherwise be working, between a place of work and a place where he is receiving such training, or (c) receiving such training at his normal place of work,
shall be treated as time work. Time work 20. The time work worked by a worker in a pay reference period shall be the total number of hours of time work done by him in the pay reference period. Salaried hours work 21. - (1) In this regulation, "the basic hours" means the basic number of hours in a year in respect of which a worker is entitled under his contract to his annual salary as ascertained in accordance with his contract on the first day of the pay reference period in question. (2) Except as mentioned in paragraph (3) and regulations 22 and 23, the salaried hours work worked by a worker in a pay reference period shall be the basic hours divided by-
(b) where the pay reference period is a month, 12; and (c) where the pay reference period is any other period, by the figure obtained by dividing 365 by the number of days in the pay reference period (including non-working days).
(3) Where in a pay reference period-
(b) is, for that reason, entitled to be paid less and is paid less than the normal proportion of his annual salary in respect of the pay reference period,
the salaried hours work worked by the worker in the pay reference period shall be the number of hours determined under paragraph (2) in relation to the pay reference period reduced by the number of hours referred to in sub-paragraph (a) of this paragraph.
(b) in a calculation year when that basic number of hours is varied-
(ii) where the basic hours are determined after a variation has taken effect, the sum of the following numbers of hours-
(bb) for the period starting with the beginning of the year and ending with the day before the day on which the only or first variation took effect, the proportion of the basic number of hours in respect of which the worker would be entitled to his annual salary, before the variation, in a year of 365 days, which the number of days in the period bears to 365, and (cc) where there has been more than one variation, for each period beginning with the day on which a particular variation took effect and ending on the last day before the next variation took effect, the proportion of the basic number of hours in respect of which the worker would be entitled to his annual salary, in accordance with the earlier variation, in a year of 365 days, which the number of days in the period bears to 365,
but in applying regulation 22 for the purposes of paragraphs (5)(a) and (b)(i) and (6)(a) the definition of "the basic hours" in regulation 21(1) shall be used.
(b) in the case of a worker whose annual salary is payable monthly and who becomes employed by an employer after these Regulations come into force, for so long as he continues in the same employment-
(ii) where the worker becomes employed on any other day of a month, the period beginning with that day and ending with the day before the first anniversary of the first day of the next month, and each year beginning on that anniversary or on a subsequent anniversary of the first day of that month;
(c) in the case of a worker whose annual salary is payable weekly and who becomes employed by an employer after these Regulations come into force, for so long as he continues in the same employment, the year beginning with the first day of his employment and each subsequent year beginning on the anniversary of that day.
(3) In determining for the purposes of paragraph (1) whether the basic hours have been exceeded by a worker in any calculation year and, if so, when they were exceeded, the following hours in that year shall be taken into account-
(b) the number of hours for which the worker has been absent from work that fell within the basic hours, (c) any hours worked by the worker outside the basic hours in respect of which the worker had no entitlement under his contract to any payment other than his annual salary, (d) time required to be treated as working hours by regulation 16, to the extent that such time consisted of hours in respect of which the worker had no entitlement under his contract to his annual salary or to any other payment,
but excluding the number of hours, if any, during which the worker was engaged in taking industrial action.
(b) time required to be treated as working hours by regulation 16, to the extent that such time consists of hours in respect of which the worker is not entitled under his contract to his annual salary or to any other payment,
and the number of hours determined under this paragraph is referred to in paragraphs (5) and (6) and in regulation 23(3) as "the actual working hours".
(b) in relation to the part of the pay reference period beginning with the day on which the basic hours are exceeded, the sum of-
(ii) the actual working hours in that part.
(6) The salaried hours work worked by a worker in each subsequent pay reference period until the end of the calculation year shall be the sum of-
(b) the actual working hours in the pay reference period.
Determining the hours of salaried hours work in certain cases where the employment terminates
(b) the worker had continued to be employed under his contract to do salaried hours work for the whole of the subsequent period and had not been absent from work during it for any hours in respect of which regulation 21(3) requires a reduction.
(4) Where a worker's contract is varied so that any salaried hours work required to be done under the contract becomes work that is not salaried hours work, this regulation shall apply as if-
(b) the last day of the worker's final pay reference period had fallen on the day before the day on which the variation took effect.
Output work
(b) the employer does not in practice determine or control the hours worked by the worker.
"Fair estimate" agreements for output work
(ii) requires the worker to keep a record of the hours of output work done by him in the pay reference period and to supply a copy of the record to the employer as soon as is reasonably practicable after the end of it; and
(b) that the worker is contractually entitled to be paid the agreed rate for each piece produced or agreed rate of commission for each sale made or transaction completed by him in the pay reference period or, as the case may be, for each sale made or transaction completed as a result of output work done by him in the pay reference period.
(2) An estimate of the number of hours a worker is likely to work purporting to satisfy the condition in paragraph (1)(a)(i) is not a fair estimate if the employer cannot show that the number is at least four-fifths of the number of hours that an average worker doing the same work as the worker in the same working circumstances and producing, by reference to the same measure of output, the same output would on average spend working in a pay reference period. Notes: [11] 1992 c. 13.back [12] 1992 c. 37; section 6(1)(b)(i) was amended by the Education (Scotland) Act 1996 (c. 43), Schedule 5, paragraph 8.back
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