10. Explanatory Notes
- The following notes do not relate directly to the Order but they offer advice, guidance and information which workers and employers may find helpful in a variety of circumstances.
Scope of Order
- The provisions of this Order apply to all workers in agriculture and horticulture (ie market gardens, gardens and nursery grounds, but not private or ornamental gardens from which none or only a small amount of the produce is sold), and also to foresters.
- The provisions of the Order apply to all workers in agriculture except those who are of "school age", within the meaning of section 31 and 33 of the Education (Scotland) Act 1980. It does not, therefore, apply to persons of school age. There are separate provisions set out in national legislation and in local authority by-laws for the employment of children of school age with which all employers must comply.
- For the avoidance of doubt, the provisions of this Order apply to workers employed in fish farming where the fish farming enterprise comes within the definition of agriculture.
- Section 11 of the Agricultural Wages (Scotland) Act 1949 states that any agreement between a worker and an employer which would lead to the worker not enjoying at least the minimum terms and conditions set out in the Orders would be void.
- Examples of void agreements would include the following:
- an agreement to pay less than the minimum wage in cash even if some compensatory payment in kind was made;
- an agreement to reduce holiday entitlements or the minimum payments for holidays;
- an agreement not to pay full overtime rates when overtime was worked;
- an agreement that a worker should provide their own weather protective clothing.
- Any agreement which means that a worker benefits from payments or other conditions in addition to those set down in the Order is acceptable under the 1949 Act.
- Information about the approved apprenticeship certificates are available from LANTRA SCOTLAND, NEWLANDS, SCONE, PH2 6NL, TEL NO: 01738 553311, FAX NO: 01738 553322.
Statement of Terms and Conditions of Employment
- In terms of Section 1 of the Employment Rights Act 1996, employers are required to provide workers with a written statement of particulars of their employment within 2 months of commencing employment. Any changes to the terms and conditions of all employees require to be intimated in writing no later than one month after the change. Appendix 1 to these notes provides a suggested form of written statement which sets out the information required.
- For the purposes of training courses provided for in article 24 of the Order, Lantra NTO shall provide, at a standard charge, certificates of training at the end of a course. A specimen certificate is shown overleaf. It is recommended that the certificate(s) provided on completion of the training course be retained by the worker to provide a comprehensive record of training for future employers.
Further information on Rights and Obligations and Other General Employment Law
The following gives information on various publications and contact telephone numbers which employers and workers may find useful:
- Individual Rights of Employees
A guide for employers and employees can be found at the employment section at www.direct.gov.uk/publications
A guide for employees published by Department for Business Innovations and Skills (BIS) now includes a claim form and is entitled Redundancy and Insolvency A Guide for Employees contact: Redundancy Payments Office for Scotland
Helpline: 0131 316 5600
Birmingham HQ: 0121 456 4411
Redundancy National Helpline: 0845 1450004
Employers obligations under the SSP are contained in the Employers' Manual to SSP (E14) which is available free of charge. An Employee's guide to SSP is available on 0845 302 1479 contact:
Local Inland Revenue or Benefits Agency Offices
Employers' Helpline: 0845 714 3143
Local Inland Revenue Offices
Helpline: 0845 300 3900
Website as above
- General Employment Matters
The Advisory Conciliation and Arbitration Service (ACAS) publish advisory handbooks, codes of practice and advice leaflets including employment matters such as lay-offs, contracts, bullying and harassment contact:
Helpline: 08457 474747
For information regarding Working Time Regulations contact: 0800 917 2368
For assistance on any matters to do with weekly and night working time limits and health assessments contact: HSE Information Services
Health and Safety Executive (HSE)
Caerphilly Business Park
Infoline: 0845 3450055
or contact the HSE office
For assistance on any matters about time off, rest breaks and paid annual leave contact:
ACAS Helpline: 08457 474747
For information about making a claim or going to an Employment Tribunal
Employment Tribunals Service: 0845 7959775
- National Minimum Wage (NMW)
The Pay and Work Rights helpline offers information on the National Minimum Wage and can be contacted by telephone on 0800 917 2368 and on textphone on 0800 121 4042. BIS
PO Box 4339
The most useful website is: http://payandworkrightscampaign.direct.gov.uk/index.html
TIGER (Tailored Interactive Guidance on
Employment Rights): www.direct.gov.uk
- Health & Safety Executive
Infoline: 0845 345 0055
Specimen certificate for the purposes of Article 24 of the Order.
Ensuring that workers are properly paid
- The employer and the worker both share the responsibility for ensuring that all requirements of the Order are complied with in full. This guidance note seeks to help both parties to understand what they are required to do, and officials of The Scottish Government Rural and Environment Directorate will always try to answer any questions.
- Scottish Government Officials will also carry out checks at employers' places of business, both by way of routine spot checks and in response to complaints by workers about their pay and conditions. These visits will normally involve interviews with the employer and one or more workers, and probably a check of records relating to pay, holidays, hours worked, etc.
- The Directorate has found it to be beneficial for an employer to maintain records to show that the appropriate payments due to workers have been made. For example:
payments due for holidays taken and not taken,
payments due for bereavement leave and parental leave,
payments due for working on special holidays, standby, etc.
- Where the Directorate considers that a worker has not received his/her full entitlement, the employer will be advised of the problem in writing and invited to remedy the position.
- If an acceptable solution cannot be agreed, then the matter may have to be referred to an Employment Tribunal for settlement.
- If a worker believes that they are not being paid in accordance with the Order, then they should contact the Secretary, Scottish Agricultural Wages Board, Saughton House, Broomhouse Drive, Edinburgh EH11 3XD, Tel No: 0300 244 9749.
- Complaints about the standard of service received from the Scottish Government Rural and Environment Directorate Agricultural Wages enforcement staff, should be directed initially to the Deputy Director, Agriculture and Rural Development Division, Spur D, Saughton House, Broomhouse Drive, Edinburgh EH11 3XD.
- If having referred the matter to the Deputy Director, Agriculture and Rural Development Division you remain dissatisfied you may refer the matter to the Cabinet Secretary for Rural Affairs and the Environment, St Andrew's House, Regent Road, Edinburgh EH1 3DG.
- Where an employer or worker considers that there has been maladministration by Scottish Government Rural and Environment Directorate staff in the handling of a routine inspection or complaint case, as opposed to the outcome of the case, they may refer the matter to the Scottish Public Services Ombudsman, 4 Melville Street, Edinburgh EH3 7NS, Tel: Freephone 0800 377 7330, Fax: Freephone 0800 377 7331. Complaints must, normally, be submitted in writing within 12 months of the event giving rise to the complaint. Further information regarding the Scottish Public Services Ombudsman is available at www.spso.org.uk.