First Previous (PART III. Agreements Relating to Wages and Conditions of Employment.) Next (PART V. Registered Joint Industrial Councils.)

26 1946

INDUSTRIAL RELATIONS ACT, 1946

PART IV.

Regulation by the Court of Remuneration and Conditions of Employment of Certain Workers.

Definitions.

Definitions for purposes of Part IV.

34. —In this Part—

the expression “employment regulation order” means an order made under section 43 of this Act;

the expression “establishment order” means an order made under section 35 of this Act;

the word “inspector” means a person appointed an inspector under section 51 of this Act;

the expression “joint labour committee” means a committee established under section 35 of this Act;

the expression “statutory conditions of employment” means, in relation to a worker to whom an employment regulation order, which fixes conditions of employment, applies, the conditions of employment fixed by the order in respect of that worker;

the expression “statutory minimum remuneration” means, in relation to a worker to whom an employment regulation order, which fixes remuneration, applies, the remuneration fixed by the order in respect of that worker.

Joint Labour Committees.

Power of the Court to establish joint labour committees.

35. —Subject to the provisions of this Part, the Court may by order establish a committee to perform, in relation to the class, type or group of workers described in the order and their employers, the functions assigned to it by this Part.

Applications for establishment orders.

36. —An application for the establishment of a joint labour committee with respect to any workers and their employers may be made to the Court by—

(a) the Minister, or

(b) a trade union, or

(c) any organisation or group of persons claiming to be representative of such workers or of such employers.

Restrictions on making establishment orders.

37. —The Court shall not make an establishment order in respect of any workers and their employers unless the Court is satisfied—

(a) in case the application is made by an organisation or a group of persons claiming to be representative of such workers or such employers, that the claim is well-founded, and

(b) that either—

(i) there is substantial agreement between such workers and their employers to the establishment of a joint labour committee, or

(ii) the existing machinery for effective regulation of remuneration and other conditions of employment of such workers is inadequate or is likely to cease or to cease to be adequate, or

(iii) having regard to the existing rates of remuneration or conditions of employment of such workers or any of them, it is expedient that a joint labour committee should be established

Inquiry into application for an establishment order.

38. —Where an application is duly made to the Court for an establishment order, the Court shall consider such application and, subject to section 37 of this Act, the following provisions shall have effect—

(a) the Court shall, after consultation with such parties as it thinks necessary, prepare a draft establishment order (in this section referred to as the draft),

(b) the Court shall publish in the prescribed manner a notice setting out—

(i) that the Court proposes to hold an inquiry into the application,

(ii) the day (which shall not be earlier than thirty days or later than forty-five days from the date of the publication of the notice) and time and place at which the inquiry will be held,

(iii) the place where copies of the draft may be obtained,

(c) objections to the draft may, before the date for the holding of the inquiry, be submitted to the Court, and every such objection shall be in writing and state the grounds of objections and the omissions, additions or modifications asked for,

(d) the Court shall hold the inquiry on the day so specified in the notice and consider any objections to the draft which have been submitted in accordance with paragraph (c) of this section.

Making of establishment orders.

39. —(1) Where the Court has held, in pursuance of section 38 of this Act, an inquiry into an application for an establishment order, the Court may, subject to section 37 of this Act, if it thinks fit make the order either in terms of the draft prepared in accordance with the said section 38 or with such modifications of the said terms as it considers necessary.

(2) Where the Court makes an establishment order, it shall publish the order in the prescribed manner, and the order shall come into operation on the date on which it is so published or such later date (not being later than fourteen days after the date on which it is so published) as is specified therein.

Revocation and variation of establishment orders.

40. —Where an establishment order in respect of any workers and their employers is in force, the Court, on the application (which shall specify the grounds on which it is made) of—

(a) the Minister, or

(b) any trade union, or

(c) any organisation or group of persons which claims to be and is, in the opinion of the Court, representative of such workers or of such employers,

may by order abolish the joint labour committee established by such establishment order or amend such establishment order, and the provisions of section 38 and section 39 of this Act shall apply in relation to such application and to the order (if any) made under this section as if the application were an application under section 38 and the order were an establishment order.

Constitution, officers and proceedings of joint labour committees.

41. —The provisions set out in the Second Schedule to this Act shall have effect with respect to the constitution, officers and proceedings of joint labour committees.

Employment Regulation Orders.

Proposals by joint labour committees in relation to remuneration and conditions of employment.

42. —(1) Subject to the provisions of this section, a joint labour committee may submit to the Court proposals for fixing the minimum rates of remuneration to be paid either generally or for any particular work to all or any of the workers in relation to whom the committee operates, and such proposals may provide for a minimum weekly remuneration for all or any of such workers.

(2) Subject to the provisions of this section, a joint labour committee may submit to the Court proposals for regulating the conditions of employment of all or any of the workers in relation to whom the committee operates.

(3) A joint labour committee shall not submit proposals under this section for revoking or amending an employment regulation order unless the order has been in force for at least six months.

Making of employment regulation orders.

43. —(1) Where the Court receives from a joint labour committee proposals under subsection (1) or subsection (2) of section 42 of this Act or under both those subsections, the Court shall consider them and thereupon the following provisions shall have effect—

(a) the Court may, if it thinks fit, refer the proposals back to the committee with such observations thereon as the Court thinks proper, and in that case, the committee shall reconsider the proposals having regard to such observations and may, if it thinks fit, re-submit the proposals to the Court either without amendment or with such amendments as it thinks fit having regard to those observations;

(b) if the Court does not so refer the proposals back to the committee or, having so referred them back, the committee re-submit them to the Court with or without amendment, the Court shall publish in the prescribed manner a notice setting out—

(i) that the proposals have been submitted,

(ii) the place where copies of the proposals may be obtained, and

(iii) that representations with respect to the proposals may be made to the committee within the period of thirty days after the date of such publication;

(c) where the said notice is published and any representations with respect to the proposals are made to the committee within the said period, the committee shall consider the representations and may, if it thinks fit, re-submit the proposals with or without amendment to the Court;

(d) where the said notice is published and either no representations are so made within the said period or the committee re-submits the proposals under paragraph (c) of this subsection, the Court may, as it thinks fit, either make an order giving effect to the proposals as from such date (subsequent to the date of the order) as the Court thinks proper and specifies in the order or refuse to make an order.

(2) As soon as the Court makes an employment regulation order, it shall publish notice of the making of the order and the contents thereof in the prescribed manner.

(3) An employment regulation order shall not prejudice any rights as to rates of remuneration or conditions of employment conferred on any worker by another Part of this Act or by any other Act.

(4) An employment regulation order may amend or revoke any previous employment regulation order.

(5) An employment regulation order may contain different provisions for different descriptions of workers.

Adaptation of contracts of service consequential upon employment regulation orders.

44. —(1) The employer of a worker to whom an employment regulation order applies, shall—

(a) in case the order fixes remuneration, pay to such worker remuneration not less than the statutory minimum remuneration,

(b) in case the order fixes conditions of employment, grant to such worker conditions of employment not less favourable than the statutory conditions of employment.

(2) If a contract between a worker (being a worker to whom an employment regulation order, which fixes remuneration, applies) and his employer provides for the payment of less remuneration than the statutory minimum remuneration, the contract shall have effect as if the statutory minimum remuneration were substituted for the less remuneration.

(3) If a contract between a worker (being a worker to whom an employment regulation order, which fixes conditions of employment, applies) and his employer provides for conditions of employment (in this subsection referred to as the contract conditions) less favourable than the statutory conditions of employment, the contract shall have effect as if the statutory conditions of employment were substituted for the contract conditions.

Enforcement of employment regulation orders.

45. —(1) If an employer fails to pay to a worker (being a worker to whom an employment regulation order, which fixes remuneration, applies) remuneration not less than the statutory minimum remuneration, the employer shall be guilty of an offence under this subsection and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds.

(2) Where the employer or any other person charged, in accordance with section 50 of this Act, as a person to whose act or default the offence was due has been found guilty of an offence under subsection (1) of this section consisting of a failure to pay to a worker remuneration not less than the statutory minimum remuneration, the court by which he is convicted may order the employer to pay to the worker such sum as is found by the said court to represent the difference between the statutory minimum remuneration and the remuneration actually paid.

(3) If, in respect of any worker (being a worker to whom an employment regulation order, which fixes conditions of employment, applies), the statutory conditions of employment are not complied with by the employer—

(a) the employer shall be guilty of an offence under this subsection and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds,

(b) the court by which the employer is convicted may order the employer to pay to the worker such compensation as it considers fair and reasonable in respect of such non-compliance.

(4) Where proceedings are taken under subsection (1) of this section in respect of an offence consisting of a failure to pay to a worker remuneration not less than the statutory minimum remuneration, and notice of intention to avail of paragraph (a) of this subsection has been served with the summons, warrant or complaint—

(a) evidence may, if the employer or any other person charged, in accordance with section 50 of this Act, as a person to whose act or default the offence was due is found guilty of the offence, be given of any like contravention on the part of the employer in respect of any period during the three years immediately preceding the date of the offence, and

(b) on proof of such contravention, the court before which the proceedings are taken may order the employer to pay to the worker such sum as is found by the said court to represent the difference between the amount which ought to have been paid during that period to the worker by way of remuneration, if the worker were paid remuneration in accordance with the statutory minimum remuneration, and the amount actually so paid.

(5) In any proceedings against a person under subsection (1) of this section it shall lie with such person to prove that he has paid remuneration not less than the statutory minimum remuneration.

(6) In any proceedings against a person under subsection (3) of this section it shall lie with such person to prove that he has complied with the statutory conditions of employment.

(7) The powers given by this section for the recovery of sums due by an employer to a worker shall not be in derogation of any right of the worker to recover such sums in civil proceedings.

Permits authorising employment of infirm and incapacitated persons at less than the statutory minimum remuneration.

46. —(1) If, as respects any worker employed or desiring to be employed in such circumstances that an employment regulation order which fixes remuneration applies or will apply to him, the appropriate joint labour committee is satisfied, on application being made to it for a permit under this section either by the worker or the employer or a prospective employer, that the worker is affected by infirmity or physical incapacity which renders him incapable of earning the statutory minimum remuneration, the committee may, if it thinks fit, grant, subject to such conditions (if any) as it may determine, a permit authorising his employment at less than the statutory minimum remuneration, and while the permit is in force the remuneration authorised to be paid to him by the permit shall, if those conditions are complied with, be deemed, for the purposes of this Act, to be the statutory minimum remuneration.

(2) Where an employer employs any worker in reliance on any document purporting to be a permit granted under subsection (1) of this section authorising the employment of that worker at less than the statutory minimum remuneration, then, if the employer has notified the joint labour committee in question that, relying on that document, he is employing or proposing to employ that worker at a specified remuneration, the document shall, notwithstanding that it is not or is no longer a valid permit relating to that worker, be deemed, subject to the terms thereof and as respects only any period after the notification, to be such a permit until notice to the contrary is received by the employer from the committee.

Computation of remuneration.

47. —(1) Subject to subsection (2) of this section, any reference in this Part to remuneration shall be construed as a reference to the amount obtained or to be obtained in cash by the worker from his employer clear of all deductions in respect of any matter whatsoever, except any deductions lawfully made under any enactment for the time being in force requiring or authorising deductions to be made from remuneration.

(2) Subject to any enactment for the time being in force, an employment regulation order may authorise specified benefits or advantages, provided for a worker by or on behalf of his employer, to be reckoned as payment of remuneration by the employer in lieu, of payment in cash and such order shall define the monetary value at which every such benefit and advantage is to be reckoned.

Employers not to receive premiums from apprentices or learners.

48. —(1) (a) Where a worker (being a worker to whom an employment regulation order, which fixes remuneration, applies) is an apprentice or a learner, it shall not be lawful for his employer to receive directly or indirectly from him, or on his behalf or on his account, any payment by way of premium.

(b) Nothing in paragraph (a) of this subsection shall apply to any such payment as is referred to therein duly made in pursuance of any instrument of apprenticeship approved for the purpose of this subsection by a joint labour committee.

(2) If any employer receives any payment by way of premium in contravention of this section he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds, and the court by which he is convicted may, in addition to the fine, order him to pay to the worker or other person by whom the payment was made the sum received by way of premium.

Records and notices.

49. —(1) The employer of any workers to whom an employment regulation order applies shall keep such records as are necessary to show whether or not the provisions of this Part are being complied with as respects them, and the records shall be retained by the employer for three years.

(2) The employer of any workers shall post in the prescribed manner such notices as may be prescribed for the purpose of informing them of any proposals under section 42 of this Act affecting such workers or any employment regulation order affecting such workers and shall give notice in any other manner which may be prescribed to the said workers of the said matters and of such other matters, if any, as may be prescribed.

(3) If an employer fails to comply with any of the requirements of this section, he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds.

Criminal liability of agent and superior employer and special defence open to employer.

50. —(1) Where the immediate employer of any worker is himself in the employment of some other person and the worker is employed on the premises of that other person, that other person shall for the purposes of this Part be deemed to be the employer of the worker jointly with the immediate employer.

(2) Where an employer is charged with an offence under any section or subsection contained in this Part, he shall be entitled, upon information duly laid by him and on giving to the prosecution not less than three days' notice of his intention, to have any other person to whose act or default he alleges that the offence was due brought before the court hearing the charge at the time appointed for the hearing of the charge, and thereupon the following provisions shall have effect—

(a) if, after the commission of the offence has been proved, the employer proves that the offence was due to the act or the default of that other person, that other person may be convicted of the offence,

(b) if the employer further proves that he has used all due diligence to secure that this Part and any relevant regulation or order made thereunder were complied with, he shall be acquitted of the offence.

(3) Where a defendant seeks to avail himself of subsection (2) of this section—

(a) the prosecution, as well as the person whom the defendant charges with the offence, shall have the right to cross-examine him, if he gives evidence, and any witnesses called by him in support of his pleas and to call rebutting evidence,

(b) the court hearing the charge may make such order as it thinks fit for the payment of costs by any party to the proceedings to any other party thereto.

(4) Where—

(a) it appears to an inspector that an offence has been committed in respect of which proceedings might be taken under this Part against an employer, and

(b) the inspector is reasonably satisfied that the offence of which complaint is made was due to an act or default of some other person, and that the employer could establish a defence under subsection (2) of this section,

the following provisions shall have effect—

(i) the inspector may cause proceedings to be taken against that other person without first causing proceedings to be taken against the employer,

(ii) if such proceedings are so taken, that other person may therein be charged with and, on proof that the offence was due to his act or default, be convicted of the offence with which the employer might have been charged.

Inspectors.

51. —(1) The Minister may appoint such and so many persons as he thinks fit to be inspectors for the purposes of this Part.

(2) Every inspector shall be furnished by the Minister with a certificate of his appointment and when exercising any of the powers conferred on him by this Part shall, if so required by any person affected, produce such certificate to him.

Powers of inspectors.

52. —(1) An inspector may, for the purpose of enforcing the provisions of this Part, do all or any of the following things, that is to say:—

(a) enter at all reasonable times any premises where he has reasonable grounds for believing that any workers to whom an employment regulation order applies are employed,

(b) require the production of wages sheets or other records of remuneration kept by an employer and any such records as are required by this Part to be kept by employers, and inspect and examine those sheets or records and copy any material part thereof,

(c) examine with respect to any matters under this Part any person whom he has reasonable grounds for believing to be or have been a worker to whom, an employment regulation order applies or the employer of any such worker and require such person or employer to answer such questions (other than questions tending to incriminate such person) as such inspector may put touching such matters and to sign a declaration of the truth of the answers to such questions.

(2) If any person—

(a) obstructs or impedes an inspector in the exercise of any of the powers conferred on such inspector by this section, or

(b) refuses to produce any record which an inspector lawfully requires him to produce, or

(c) prevents, or attempts to prevent any person from appearing before or being questioned by an inspector, or

(d) wilfully fails or refuses to comply with any lawful requirement of an inspector under paragraph (b) of subsection (1) of this section,

such person shall be guilty of an offence under this subsection and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds.

(3) If any person required by this Part to keep records keeps or causes to be kept, or produces or causes to be produced or knowingly allows to be produced to an inspector, any record which is false in any material respect knowing it to be false, he shall be guilty of an offence under this subsection and shall be liable on summary conviction thereof to a fine not exceeding one hundred pounds or imprisonment for a period not exceeding three months or to both such fine and imprisonment.

(4) An inspector may institute proceedings for an offence under any section or subsection contained in this Part.

(5) (a) Any inspector may, if it appears to him that a sum is due from an employer to a worker (being a worker to whom an employment regulation order, which fixes remuneration, applies) on account of the payment to him of remuneration less than the statutory minimum remuneration, institute on behalf of and in the name of that worker civil proceedings for the recovery of that sum and in any such proceedings an order may be made for the payment of costs by the inspector as if he were a party to the proceedings.

(b) The power given by paragraph (a) of this subsection for the recovery of sums due by an employer to a worker shall not be in derogation of any right of the worker to recover such sums in civil proceedings.

Provisions in relation to trade boards.

Existing trade boards to become joint labour committees.

53. —Any trade board which exists immediately before the commencement of this Act shall, upon such commencement, by virtue of this section be deemed to be a joint labour committee established under this Part by an establishment order (notwithstanding that its constitution is not in all respects in accordance with the provisions of this Act) and operating in relation to the workers and employers in relation to whom it operated immediately before such commencement.

Existing orders under the Trade Boards Acts, 1909 and 1918.

54. —Any order in force immediately before the commencement of this Act confirming, varying or cancelling any rate under the Trade Boards Acts, 1909 and 1918, shall continue in force and be deemed to be an employment regulation order.

Pending notices of proposals varying minimum rates of wages under the Trade Boards Acts, 1909 and 1918.

55. —If any notice of proposals for varying minimum rates of wages under the Trade Boards Acts, 1909 and 1918, has been duly given by a trade board before the commencement of this Act, the like proceedings may be had on those proposals as might have been had thereon if the said Acts had not been repealed by this Act, and if an order is made confirming the proposals that order shall be deemed to be an employment regulation order.

Adaptation of references to trade boards.

56. —References in any document (other than an enactment repealed by this Act) to a trade board shall be construed as references to a joint labour committee.

Determination of certain questions.

Determination of certain questions.

57. —(1) The Court may at any time, on the application of any person, give its decision on the question whether a particular joint labour committee operates as respects a particular person or whether a particular employment regulation order applies to a particular person.

(2) A court of law, in determining any question arising in proceedings before it whether a particular joint labour committee operates as respects a particular person or whether a particular employment regulation order applies to a particular person, shall have regard to any decision of the Court referred to it in the course of the proceedings.

(3) If any question arises in proceedings before a court of law whether a particular joint labour committee operates as respects a particular person or whether a particular employment regulation order applies to a particular person, the court of law may, if it thinks proper, refer the question to the Court for its decision, and the decision of the Court thereon shall be final.

Standard wages for areas.

Standard wages for areas.

58. —(1) The Court, after publication, in such manner as it thinks fit, of notice of its intention, may, on its own motion or on the application of any interested party, fix, in respect of any area selected by the Court, the wage (in this section referred to as the standard wage) which, in the opinion of the Court, should be paid to a male adult worker performing in that area unskilled work for a normal working week.

(2) In fixing the standard wage for any area the Court shall have regard to the prevailing level of wages for other workers in that area.

(3) Where the Court fixes a standard wage for any area it shall publish particulars thereof in such manner as it thinks fit.

(4) Nothing in this section shall be construed as imposing an obligation on employers in an area to pay the standard wage fixed under this section for that area.