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4 1938

SHOPS (CONDITIONS OF EMPLOYMENT) ACT, 1938

PART III.

Working Hours and Mealtimes.

Restriction on night employment of juveniles on shop work.

19. —(1) A juvenile who is employed to do shop work shall in every period of twenty-four hours between midday on one day and midday on the next day be allowed an interval of at least eleven consecutive hours which shall, subject to the provisions of the next following sub-section, include the hours from 10 p.m. until 6 a.m.

(2) The interval of eleven consecutive hours mentioned in the immediately preceding sub-section need not, in the case of a juvenile who is not less than sixteen years, include—

(a) if such juvenile is a male person and is employed during the hour between 5 a.m. and 6 a.m. in connection with the collection or delivery of milk or bread or newspapers, the said hour, or

(b) if such juvenile is a male person and is employed between the hours of 10 p.m. and 12 o'clock midnight, solely in connection with the business of serving meals to customers for consumption on the premises, the said hours, or

(c) if such juvenile is employed in connection with any retail trade or business carried on in a theatre and a performance is taking place in such theatre which begins before the hour of 10 p.m. and ends after the hour of 10 p.m. and not later than the hour of 1 a.m., the hours during which such performance is taking place.

(3) If there is any contravention of the provisions of this section in respect of any juvenile, the person who is the employer of such juvenile shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding ten pounds.

(4) In this section the word “theatre” includes any place used for the exhibition of pictures or other optical effects by means of a cinematograph or other suitable apparatus.

(5) This section shall apply in respect of a juvenile who does shop work regularly for the proprietor of a shop and who is a relative of such proprietor.

Daily and weekly working hours, and overtime pay.

20. —(1) It shall not be lawful for the proprietor of a shop to permit any member of the staff of that shop to continue to do shop work for him after the time in any day when such member has completed (whether for such proprietor alone or such proprietor and other persons) eleven hours shop work on such day.

(2) Save as otherwise provided by this section, it shall not be lawful for the proprietor of a shop to permit any member of the staff of that shop to continue to do shop work for him after the time in any week when such member has completed (whether for such proprietor alone or such proprietor and other persons)—

(a) in case such shop is a hotel, fifty-six hours shop work in such week, or

(b) in any other case, forty-eight hours shop work in such week.

(3) Notwithstanding anything contained in the immediately preceding sub-section, the proprietor of a shop may permit any member of the staff of such shop, whose age is sixteen years or more, to do in any week shop work for him for a period in excess of, in case such shop is a hotel, fifty-six hours or, in any other case, forty-eight hours, so however that the number of hours of shop work done (whether for such proprietor alone or such proprietor and other persons) by such member does not exceed—

(a) in case such shop is a hotel—

(i) sixty-six hours in any week, or

(ii) two hundred and forty-four hours in any period of four consecutive weeks, or

(iii) two thousand nine hundred hours in any year, or

(b) in any other case—

(i) sixty hours in any week, or

(ii) two hundred and sixteen hours in any period of four consecutive weeks, or

(iii) two thousand six hundred hours in any year.

(4) Where—

(a) a member of the staff of a shop is allowed in any week (other than, in case such shop is a non-special-trade shop, a week in which he is allowed a whole holiday on every week day thereof or, in any other case, a week in which he is allowed a whole holiday on every day thereof) a whole holiday as part of his annual leave, or

(b) a member of the staff of a non-special-trade shop is allowed a whole holiday on a public holiday or is allowed a whole holiday under the provisions of Part IV of this Act which relate to compensatory holidays to members of staffs of non-special-trade shops engaged in work on public holidays,

such member shall, for the purposes of sub-sections (2) and (3) of this section be deemed to have done on the day on which such whole holiday is allowed eight hours shop work.

In this sub-section the expression “non-special-trade shop” has the same meaning as in Part IV of this Act.

(5) Where a member of the staff of a shop is during any period engaged in doing industrial work, such member shall for the purposes of this section be deemed to have been engaged in doing shop work during that period.

(6) Where the proprietor of a shop permits any member of the staff of that shop to do for him shop work for a number of hours in any week after such member has completed in that week (whether for such proprietor alone or such proprietor and other persons), in case such shop is a hotel, a number of hours of shop work in excess of fifty-six or, in any other case, a number of hours of shop work in excess of forty-eight, such proprietor shall be deemed to have agreed to pay to such member, in respect of each hour of such excess, overtime pay at a rate per hour which represents the normal weekly rate reckoned in terms of hours, and increased by not less than twenty-five per cent.

(7) Subject to the provisions of this section the Minister may, whenever and so often as he thinks fit, by order under this sub-section amend in respect of shops of a specified class (defined in such manner and by reference to such things as he thinks fit) in any area specified in or delimited by such order any of the provisions of this section relating to hours, and in that case so long as such order remains in force this section shall, subject to the operation of any order made by the Minister under sub-section (9) of this section, have effect in respect of such shops subject to such amendment.

(8) Subject to the provisions of this section the Minister may by order under this sub-section revoke or amend any order made under sub-section (7) of this section or under this present sub-section.

(9) The Minister may, whenever and so often as he thinks fit, by order under this sub-section amend in respect of all shops or shops of a specified class (defined in such manner and by reference to such things as he thinks fit) in any area specified in or delimited by such order any of the provisions of this section relating to hours and declare that such amendment shall apply in respect of a specified period, and in that case the following provisions shall have effect, during the period so specified, that is to say:—

(a) this section shall have effect in respect of such shops subject to such amendment,

(b) if an order under sub-section (7) of this section is in force and such order relates to any shops to which the said order under this sub-section applies, the operation of the said order under the said sub-section (7) shall during the said specified period be suspended.

(10) Whenever the Minister proposes to make an order under sub-section (7) or sub-section (8) of this section, he shall before making such order consult with—

(a) in case there are, in the opinion of the Minister, any associations representative of proprietors of shops to which such order is intended to apply, such associations, and

(b) in case there are, in the opinion of the Minister, any associations representative of members of the staffs of such shops, such associations.

(11) If the proprietor of a shop acts in contravention of this section, such proprietor shall be guilty of an offence under this section.

(12) Any interval allowed during any day shall not be taken into account in reckoning the number of hours of shop work done on such day.

Employment in spells.

21. —(1) Subject to the provisions of this Act relating to intervals for meals, the hours of employment of a member of the staff of a shop (other than a refreshment house or a railway bookstall on or adjoining a railway platform) shall not on any date be divided into more than two spells, and the period between any such spells shall not be less than four hours in duration.

(2) The Minister may, whenever and so often as he thinks fit, by order under this sub-section amend in respect of shops (other than refreshment houses or railway bookstalls on or adjoining railway platforms) of a specified class (defined in such manner and by reference to such things as the Minister thinks proper) in a specified area the provisions of sub-section (1) of this section relating to the number of spells into which the hours of employment of a member of the staff of a shop may be divided on any day, and the provisions of the said sub-section relating to the duration of the period between spells, or both such provisions, and in that case so long as such order remains in force the said sub-section shall have effect in respect of such shops subject to such amendment.

(3) The Minister may by order under this sub-section amend or revoke any order made under this section (including this sub-section).

(4) If in respect of any member of the staff of a shop there is a contravention of this section, the proprietor of such shop shall be guilty of an offence under this section.

Intervals for meals.

22. —(1) Each member of the staff of a shop shall be allowed intervals for meals in accordance with rules contained in the Second Schedule to this Act.

(2) If there is in relation to any member of the staff of a shop any contravention of this section, the proprietor of such shop shall be guilty of an offence under this section and shall be liable on summary conviction thereof to the penalties mentioned in the Third Schedule to this Act.

(3) This section shall not apply in respect of a member of the staff of a shop, which is a railway bookstall on or adjoining a railway platform.

Notices of working hours etc.

23. —(1) The proprietor of a shop who employs any persons as members of the staff of that shop shall specify in a notice (in this Part of this Act referred to as an hours of work notice), which shall be in the prescribed form and be constantly kept posted in a prominent place in such shop where it may be conveniently read by such persons, the daily hours to be worked for the time being by such persons and the intervals for rest and meals to be allowed for the time being to such persons.

(2) The proprietor of a shop may from time to time substitute a new hours of work notice for an existing hours of work notice, but shall not do so unless, not less than forty-eight hours before such new hours of work notice comes into operation, he has informed each of the members of the staff of that shop, whose hours of work will be changed by such new hours of work notice, of his intention to so substitute a new hours of work notice and of the terms of such new hours of work notice.

(3) If the proprietor of a shop acts in contravention (whether by commission or omission) of this section, such proprietor shall be guilty of an offence under this section.

(4) This section shall not apply to the proprietor of any shop if the only members of the staff of that shop are relatives of such proprietor.

Obligation on proprietors of shops to observe hours of work notice.

24. —(1) It shall not be lawful for the proprietor of a shop to allow any member of the staff of that shop to do shop work for him during any hours on any day other than the hours of work specified for that day in respect of such member in the hours of work notice for the time being in force relating to that shop.

(2) If the proprietor of a shop acts in contravention of this section, such proprietor shall be guilty of an offence under this section.

(3) Where the proprietor of a shop is charged with an offence under this section it shall be a good defence to such charge for such proprietor to prove to the satisfaction of the court before which such offence is tried that the alleged contravention of this section was rendered necessary by reason of illness amongst the members of the staff of that shop or other unforeseen cause.

Preservation of existing rates of wages.

25. —(1) Where, in order to comply with this Part of this Act, the hours of work prevailing immediately before the commencement of this Part of this Act in regard to any member of the staff of a shop are reduced or otherwise altered, the following provisions shall have effect, that is to say:—

(a) the rate of salary, wages, or other reward (excluding overtime pay and any payments made for commencing work earlier or finishing work later than other members of the staff of such shop employed in similar work) payable to such member immediately before such commencement shall not be reduced or be otherwise altered to the detriment of such member merely because of the said reduction or alteration in the hours of work of such member;

(b) the said reduction or alteration of hours of work shall not terminate nor prejudicially affect the contract of service under which such member is so employed immediately before such commencement, and every such contract shall continue in force after such commencement with such modifications only as may be necessary in order to comply with this Part of this Act and in particular the modification that notwithstanding the said reduction or alteration of hours of work the average weekly earnings (excluding overtime pay and any payments made for commencing work earlier or finishing work later than other members of the staff of such shop employed in similar work) payable in a normal full working week to such member under such contract shall not be reduced;

(c) every agreement between (proprietors of shops or a body representative of proprietors of shops on the one hand and members of the staffs of shops or a body representative of members of staffs of shops on the other hand which is in force immediately before such commencement and regulates or restricts the rate of salary, wages, or other reward payable to such member shall (subject to the terms of any subsequent such agreement) continue in force after such commencement notwithstanding the said reduction or alteration of hours of work but with the modification that every rate of salary, wages, or other reward which is fixed or the method of calculating which is fixed by such agreement and every restriction on any rate of salary, wages, or other reward contained in such agreement shall remain unchanged in or as to amount;

(d) every minimum rate of salary, wages, or other reward fixed by statute or under statutory authority which is in force immediately before such commencement shall, if and so far as it is applicable to such member, continue (subject to the terms of any agreement to which such member or a body representative of such member and other members of staffs of shops is a party) after such commencement in force and unchanged in amount notwithstanding the said reduction or alteration of hours of work.

(2) Sub-section (1) of this section shall apply and have effect in relation to every order made under this Part of this Act by the Minister fixing hours of work with and subject to the modifications that every reference in the said sub-section to the commencement of this Part of this Act shall be construed and have effect as a reference to the coming into operation of such order and every reference in the said sub-section to compliance with this Part of this Act shall be construed and have effect as a reference to compliance with such order.

(3) This section shall also apply to wages calculated by direct reference to the number of hours worked, but with the modification that for the purposes of such application every provision in this section to the effect that a rate of wages or a minimum rate of wages or a restriction on a rate of wages is to remain unchanged shall be construed and have effect as a provision that the rate of wages by the hour be so adjusted or varied that the average weekly earnings shall remain unchanged.