Statutory Instruments 1999 No. 584
The National Minimum Wage Regulations 1999
- continued

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Determining the hours of output work where there is a "fair estimate" agreement
     26.  - (1) In paragraph (2) the term "ascertained hours" means the fair estimate of hours contained in an agreement referred to in paragraph (1)(a) of regulation 25.

    (2) Where the conditions in regulation 25(1) are satisfied in relation to output work of the kind specified in regulation 24(2), the output work worked by a worker in the pay reference period in respect of the work covered by the agreement in question shall be treated as being-

Unmeasured work
    
27. Unless the condition in regulation 28(1) is satisfied, the unmeasured work worked by a worker in a pay reference period shall be the total of the number of hours spent by him during the pay reference period in carrying out the contractual duties required of him under his contract to do such work.

"Daily average" agreements for unmeasured work
    
28.  - (1) The condition referred to in regulation 27 is that there is an agreement in writing between the worker and his employer, made at any time before the beginning of the pay reference period, determining the average daily number of hours the worker is likely to spend in carrying out the duties required of him under his contract to do unmeasured work on days when he is available to carry out those duties for the full amount of time contemplated by the contract.

    (2) The condition in paragraph (1) is not satisfied if the employer cannot show that the average daily number of hours determined is a realistic average.

    (3) Unless otherwise agreed the agreement referred to in paragraph (1) has effect solely for the purpose of determining the amount of unmeasured work the worker is to be treated as having worked for the purpose of these Regulations and does not vary the worker's contract.

Determining the hours of unmeasured work where there is a "daily average" agreement
    
29.  - (1) In paragraph (2) the term "ascertained hours" means the number of hours of unmeasured work that would have been worked by the worker in a pay reference period if he had worked-

    (2) Where the condition in regulation 28(1) is satisfied the hours of unmeasured work worked by a worker in the pay reference period shall be treated as being the ascertained hours.



PART IV

REMUNERATION COUNTING TOWARDS THE NATIONAL MINIMUM WAGE

Payments to the worker to be taken into account
    
30. The total of remuneration in a pay reference period shall be calculated by adding together-

    (a) all money payments paid by the employer to the worker in the pay reference period;

    (b) any money payments paid by the employer to the worker in the following pay reference period in respect of the pay reference period (whether in respect of work or not);

    (c) any money payment paid by the employer to the worker later than the end of the following pay reference period in respect of work done in the pay reference period, being work in respect of which-

      (i) the worker is under an obligation to complete a record of the amount of work done,

      (ii) the worker is not entitled to payment until the completed record has been submitted by him to the employer, and

      (iii) the worker has failed to submit a record before the fourth working day before the end of that following pay reference period,

    provided that the payment is paid in either the pay reference period in which the record is submitted to the employer or the pay reference period after that;

    (d) where the employer has provided the worker with living accommodation during the pay reference period, but in respect of that provision is neither entitled to make any deduction from the wages of the worker nor to receive any payment from him, the amount determined in accordance with regulation 36.

Reductions from payments to be taken into account
    
31.  - (1) The total of reductions required to be subtracted from the total of remuneration shall be calculated by adding together-

    (2) To the extent that any payment or deduction is required to be subtracted from the total of remuneration by virtue of more than one sub-paragraph of paragraph (1), it shall be subtracted only once.

Deductions to be subtracted under regulation 31(1)(g)
    
32.  - (1) The deductions required to be subtracted from the total of remuneration by regulation 31(1)(g) are-

    (2) To the extent that any deduction is required to be subtracted by virtue of both sub-paragraphs of paragraph (1), it shall be subtracted only once.

Deductions not to be subtracted under regulation 31(1)(g)
    
33. The deductions excepted from the operation of regulation 32(1)(b) are-

Payments made by or due from a worker to be subtracted under regulation 31(1)(h)
    
34.  - (1) The payments made by or due from the worker required to be subtracted from the total of remuneration by regulation 31(1)(h) are-

    (2) To the extent that any payment is required to be subtracted by virtue of more than one sub-paragraph of paragraph (1), it shall be subtracted only once.

Payments not to be subtracted under regulation 31(1)(h)
    
35. The payments excepted from the operation of regulation 34(1)(c) are-

Amount permitted to be taken into account where living accommodation is provided
    
36.  - (1) The amount referred to in regulations 30(d) and 31(1)(i) is whichever is the lesser of the following-

    (2) For the purposes of paragraph (1), living accommodation is provided for a day only if it is provided for the whole of a day from midnight to midnight.

Adjusted deductions and payments in respect of living accommodation
    
37.  - (1) Where an employer is entitled to make deductions or receive payments in respect of the provision of living accommodation to a worker and in a pay reference period-

the provisions of paragraph (2) shall apply.

    (2) For the purposes of regulation 31(1)(i), the amount of the deduction the employer is entitled to make or payment he is entitled to receive in respect of the provision of living accommodation shall be adjusted by multiplying that amount by the number of hours of time work actually worked by the worker in the pay reference period (as determined in accordance with regulation 20) and dividing the figure so obtained by the total number of hours of time work the worker would have worked in the pay reference period (including the hours of time work actually worked) but for his absence.



PART V

RECORDS

Records to be kept by an employer
    
38.  - (1) The employer of a worker who qualifies for the national minimum wage shall keep in respect of that worker records sufficient to establish that he is remunerating the worker at a rate at least equal to the national minimum wage.

    (2) The records required to be kept under paragraph (1) shall be in a form which enables the information kept about a worker in respect of a pay reference period to be produced in a single document.

    (3) The employer of a worker who qualifies for the national minimum wage who has entered into any agreement with the worker referred to in regulations 13(2)(d) (accredited training), 25(1) (output work) or 28(1) (unmeasured work), shall keep a copy of that agreement.

    (4) The employer of a worker who qualifies for an agricultural minimum rate of wages shall, in addition to the records he is required to keep under paragraphs (1) and (3), keep in respect of that worker records sufficient to establish that he is remunerating the worker at a rate at least equal to any agricultural minimum rate of wages applicable to the worker.

    (5) In paragraph (4), "agricultural minimum rate of wages" means-

    (6) Where under paragraph (4) an employer is required to keep records in respect of a worker in addition to those he is required to keep under paragraph (1), those additional records shall be in a form which enables the information kept under paragraph (4) about a worker in respect of a pay reference period to be produced in a single document.

    (7) The records required to be kept by this regulation shall be kept by the employer for a period of three years beginning with the day upon which the pay reference period immediately following that to which they relate ends.

    (8) The records required to be kept by this regulation may be kept by means of a computer.


Ian McCartney
Minister of State, Department of Trade and Industry

6th March 999



EXPLANATORY NOTE

(This note is not part of the Regulations)


These Regulations come into force on 1st April 1999. They set the hourly rate of the national minimum wage at £3.60; prescribe the working hours in respect of which workers must be paid at least the national minimum wage; provide for what payments by employers to workers are to be taken into account in determining whether the national minimum wage has been paid for those hours; and require employers to keep records sufficient to establish that they are paying their workers at least the rate of the national minimum wage and any applicable agricultural minimum rate.

Regulations 2 to 10 contain interpretative provisions. In particular, they define the different descriptions of work that may be done by workers as being "time work", "salaried hours work", "output work" and "unmeasured work", and define "the pay reference period" and provide that the work done by certain workers in specified circumstances does not count as work.

Regulation 11 sets the hourly rate of the national minimum wage. Regulation 12 provides that certain categories of workers are not entitled to the national minimum wage: they are workers under 18, apprentices (including those on "Modern Apprenticeships") who are under 19 or in their first year of apprenticeship and under 26, and workers on certain Government schemes providing them with training, work experience or temporary work, or assisting them to obtain work. Regulation 13 provides for certain workers to be entitled to the national minimum wage at a lower rate: the hourly rate is £3 for workers aged 18 or more but less than 22, and £3.20 during the first six months of employment for older workers who agree to undergo a specified amount of "accredited training" during those six months. Regulation 14 prescribes the method of determining whether at least the rate of the national minimum wage has been paid.

Regulations 15 to 29 establish, for each description of work that may be done by a worker, the hours for which the worker must be paid the national minimum wage and say how the total number of those hours in a pay reference period is to be determined.

Regulations 30 to 37 prescribe what payments made by the employer to a worker are to be taken into account in ascertaining whether he has been paid at least the national minimum wage for the total number of hours in a pay reference period determined in accordance with regulations 15 to 29.

Regulation 38 requires employers to keep records sufficient to show that they have paid their workers at least the rate of the national minimum wage and any applicable agricultural minimum rate.


Notes:

[13] 1948 c. 47; section 3 was substituted by Part I of Schedule 9 to the Employment Protection Act 1975 (c. 71); new subsections (2B), (2C) and (8) to (15) are to be inserted by the National Minimum Wage Act 1998 (c. 39), Schedule 2, paragraph 2.back

[14] 1949 c. 30; section 3(1) was substituted by Part I of Schedule 10 to the Employment Protection Act 1975 (c. 71); new subsections (2B), (2C) and (8) to (15) are to be inserted by the National Minimum Wage Act 1998 (c. 39), Schedule 2, paragraph 12.back

[15] S.I. 1977/2151 (N.I. 22); new paragraphs (1A), (1B) and (13) to (20) are to be inserted into Article 4 by the National Minimum Wage Act 1998 (c. 39), Schedule 2, paragraph 24.back



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