Employment (Minimum
Wage) (Jersey) Regulations 2004[1]
THE STATES, in pursuance of Articles 17, 18
and 104 of the Employment
(Jersey) Law 2003[2], have made the following
Regulations –
Commencement
[see endnotes]
1 Interpretation
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 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). [3]
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[4]
An Order made for the purpose of
Article 16(3) of the Employment (Jersey) Law 2003 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
determined in accordance with Regulation 9.[5]
(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.[6]
(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 the provision of food and living accommodation[7]
(1) Where
the employer provides food and living accommodation, the amount to which
Regulations 7(1)(d) and 8(1)(g) refer is –
(a) in
the case of an employee who is a trainee, £82.10 per week or £11.73
per day; and
(b) in
any other case, £109.47 per week or £15.64 per day.[8]
(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 –
(a) in
the case of an employee who is a trainee, £61.59 per week or £8.80
per day; and
(b) in
any other case, £82.12 per week or £11.73 per day.[9]
10 Citation
These Regulations may be cited as the
Employment (Minimum Wage) (Jersey) Regulations 2004.