Employment (Minimum
Wage) (Jersey) Regulations 2004[1]
1 Interpretation[2]
In these Regulations, unless the context
otherwise requires –
“allowance”, except in Regulation 2(2)(b), means any
payment paid by the employer to an employee attributable to a particular aspect
of his or her working arrangements or to his or her working or personal
circumstances that is not consolidated into the employee’s standard pay,
but does not mean an allowance designed to refund an employee in respect of
expenses incurred by the employee in connection with his or her employment;
“approved training” means training of a description or
class that is approved in writing by the Minister for the purposes of these
Regulations;
“employee” means an employee who has ceased to be of
compulsory school age;
“food and living accommodation”, when used in relation
to an employee, means 3 adequate meals that are available on each day on which
he or she is employed and living accommodation;
“living accommodation” when used in relation to an
employee, means living accommodation that is available to the employee from
midnight to midnight on each day on which he or she is employed;
“standard pay” –
(a) if an
employee has normal working hours, means the payment that he or she is entitled
to receive by way of remuneration for his or her services during the
employee’s normal working hours; and
(b) if an
employee does not have normal working hours, means the payment that he or she
is entitled to receive by way of remuneration for his or her services;
“the Law” means
the Employment (Jersey) Law 2003;
“the total remuneration” means the total remuneration calculated
in accordance with Regulation 7;
“trainee” means an employee of any age at any time
whilst, during the first 2 years of his or her employment by his or her
employer in a particular job, and by written agreement with his or her
employer, the employee is undergoing approved training for that job (irrespective
of whether the employee has previously been employed by the employer in another
job).
2 Meaning
of “payments”
(1) References
in these Regulations to payments paid by the employer to the employee are
references to payments paid by the employer to the employee in the
latter’s capacity as an employee before any deductions are made.
(2) However,
they are not references to –
(a) any
payment by way of an advance under an agreement for a loan or by way of an
advance of wages;
(b) any
payment by way of a pension, by way of an allowance or gratuity in connection
with the employee's retirement or as compensation for loss of office;
(c) any
payment of an award made by a court or tribunal or to settle proceedings which
have been or might be brought before a court or tribunal, other than the
payment of an amount due under the employee's contract;
(d) any
payment referable to the employee’s redundancy; or
(e) any
payment by way of an award under a suggestions scheme.
3 Benefits
in kind that count as payments
(1) The only
benefits in kind provided by an employer to an employee that shall be treated
for the purposes of these Regulations as payments by the employer to the
employee are –
(a) food;
and
(b) living
accommodation.
(2) It is
immaterial for the purpose of paragraph (1) that any money value is
attached to a benefit in kind that does not comprise either food or living
accommodation.
4 Trainees
may be treated as qualifying for the minimum wage at different rates[3]
An Order made for the purpose of Article 16(3) of the Law may
prescribe minimum wages for trainees at different hourly rates than those that
apply to other employees who qualify for the minimum wage.
5 Calculation
of hours worked in a pay reference period
The hours worked by an employee in a pay reference period shall be
the total number of hours worked by him or her during that period.
6 How
to determine whether the minimum wage has been paid
(1) The hourly rate paid to
an employee in a pay reference period shall be determined by dividing the total
amount calculated in accordance with paragraph (2) by the number of hours
specified in paragraph (3).
(2) The total amount to
which paragraph (1) refers is A minus B, where –
(a) “A” is the total remuneration calculated under Regulation 7; and
(b) “B” is the total of the payments, deductions and other amounts
specified in Regulation 8(1).
(3) The hours to which paragraph (1)
refers are the number of hours worked by the employee in the pay reference
period that have been ascertained in accordance with Regulation 5.
7 Payments
by the employer that are to be taken into account
(1) The total
remuneration in a pay reference period shall be calculated by adding together –
(a) all
payments paid by the employer to the employee in the pay reference period;
(b) all
payments paid by the employer to the employee in the following pay reference
period, in respect of the pay reference period to which paragraph (a)
refers (whether in respect of work or not);
(c) all
payments paid by the employer to the employee later than the end of that
following pay reference period, in respect of work done in the pay reference
period to which paragraph (a) refers, being work specified in paragraph (2);
and
(d) where
the employer has during the pay reference period provided the employee either
with food and living accommodation or with living accommodation, but in respect
of that provision is not entitled to make any deduction from the wages of the
employee and is not entitled to receive any payment from him or her, any amount
prescribed by Order made under Article 17A of the Law.[4]
(2) The work
to which paragraph (1)(c) refers is work in respect of which –
(a) the
employee is under an obligation to complete a record of the amount of work
done;
(b) the
employee is not entitled to payment until the completed record has been
submitted by him or her to the employer; and
(c) the
employee has failed to submit a record before the fourth working day before the
end of that following pay reference period,
and in respect of which the
payment is paid in either the pay reference period in which the record is
submitted to the employer or in the pay reference period following that.
8 Things
that must not be taken into account
(1) The
payments, deductions and other amounts to which this paragraph refers
are –
(a) all
payments paid by the employer to the employee in the pay reference period that,
by virtue of paragraph (1)(b) or paragraph (1)(c) of Regulation 7,
are to be included in the total of remuneration for an earlier pay reference
period;
(b) all
payments paid by the employer to the employee in respect of periods when the
employee was absent from work or engaged in taking industrial action;
(c) all
payments paid by the employer to the employee by way of an allowance other than
an allowance attributable to the performance of the employee in carrying out
his or her work;
(d) all
payments paid by the employer to the employee representing amounts paid by
customers by way of a service charge, tip, gratuity or cover charge;
(e) all
deductions in respect of the employee's expenditure in connection with his or
her employment;
(f) all
deductions that are made by the employer for his or her own use and benefit
(and accordingly not attributable to any amount paid or payable by the employer
to any other person on behalf of the employee), except deductions specified in paragraph (3);
and
(g) the
amount of all deductions that the employer is entitled to make or payments that
he or she is entitled to receive from the employee, in respect of the provision
by the employer to the employee in the pay reference period either of food and
living accommodation or of living accommodation.[5]
(2) However –
(a) the
amount to which paragraph (1)(g) refers shall be taken into account only
to the extent that it exceeds the amount prescribed by Order made under Article 17A
of the Law; and
(b) 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.[6]
(3) The
deductions to which this paragraph refers (which are deductions to which paragraph (1)(f)
does not apply) are –
(a) any
deduction in respect of conduct of the employee, or any other event, in respect
of which he or she is contractually liable (whether together with any other
employees or not);
(b) any
deduction on account of an advance under an agreement for a loan or an advance
of wages;
(c) any
deduction made to recover an accidental overpayment of wages made to the
employee; and
(d) any
deduction in respect of the purchase by the employee of any share, other
security or share option, or of any share in a partnership.
9 [7]
10 Citation
These Regulations may be cited as the Employment (Minimum Wage)
(Jersey) Regulations 2004.