Employment (Minimum
Wage) (Jersey) Regulations 2004
Made 22nd July 2004
Coming into force in
accordance with Regulation 10(2)
THE STATES, in pursuance of Articles 17, 18 and 104 of the Employment (Jersey)
Law 2003,[1] have made the following
Regulations –
1 Interpretation
In these Regulations, unless the context
otherwise requires –
“accredited training” means training that is approved in writing by the Employment
and Social Security Committee as accredited training for the purposes of these
Regulations;
“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;
“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 total remuneration” means the total remuneration calculated in accordance with Regulation
7;
“trainee” means an employee of any age who, by written agreement with
his or her employer, is undergoing accredited training during the first year of
his or her employment by that employer in the particular job for which the
employee is being trained.
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 Employees
who may be treated as qualifying for the minimum wage at a different rate
An Order made for the purpose of Article 16(3) of the Employment
(Jersey) Law 2003[2] may prescribe minimum wages
for –
(a) trainees;
or
(b) employees
who have not attained the age of 18 years,
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, the amount determined in
accordance with Regulation 9.
(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 that is not paid through the
payroll;
(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.
(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 determined in accordance with Regulation 9; 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.
(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 Limits
on amounts that may be taken into account for provision of food and living
accommodation
(1) Where the employer
provides food and living accommodation, the amount to which Regulations 7(1)(d)
and 8(1)(g) refer is £74.20 per week or £10.60 per day.
(2) Where the employer
provides living accommodation but does not provide food, the amount to which
Regulations 7(1)(d) and 8(1)(g) refer is £55.65 per week or £7.95
per day.
10 Citation and
commencement
(1) These
Regulations may be cited as the Employment (Minimum Wage) (Jersey) Regulations
2004.
(2) These Regulations shall
come into force on the same day as Article 17 of the Employment (Jersey)
Law 2003.
A.H. HARRIS
Deputy Greffier of the States.