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Statutory Instrument 2006 No. 2373The Gangmasters (Licensing Conditions) (No.2) Rules 2006(The document as of February, 2008) STATUTORY INSTRUMENTS2006 No. 2373EMPLOYMENTThe Gangmasters (Licensing Conditions) (No.2) Rules 2006
The Gangmasters Licensing Authority, following consultation with the Secretary of State in accordance with section 8(3) of the Gangmasters (Licensing) Act 2004 [1], in exercise of the powers conferred upon it by section 8 of that Act, makes the following Rules: Citation, commencement and interpretation 1.—(1) These Rules may be cited as the Gangmasters (Licensing Conditions) (No.2) Rules 2006 and come into force on 1st October 2006. (2) In these Rules—
Revocation
(b) any judgment against him by any court; and (c) any investigation undertaken or penalty imposed by a local authority or government department. (4) He must disclose details of any previous trading in the sector that is regulated by the 2004 Act in the previous five years including full details of any business concerned.
(b) in the case of a body corporate, the names of the directors; and (c) in the case of a partnership, the names of the partners. (7) He must inform the Authority of the turnover of his business in the sector that is regulated by the 2004 Act for the previous financial year or in the case of a new business, the expected turnover.
(b) on demand, the licence number to any worker supplied by him to a labour user; (c) on demand, the licence number to any worker used by him; and (d) on demand, details of any additional licence conditions to the labour user or any worker supplied or used by him. (9) He must permit the Authority to inspect the business at any reasonable time.
(b) his Unique Tax Reference; or (c) his Value Added Tax number. (2) A new application fee is payable if a licence is reapplied for after it expires.
Application inspections 8.—(1) The applicant must permit, and pay for, an inspection of the business as part of the application process if the Authority considers it necessary. (2) The fee for an application inspection as provided for in paragraph (1) is based on the fee bands below. (3) These fees are subject to any relevant taxes and duties.
Civil liability 9.—(1) Without prejudice to—
(b) any defence, which exists or may be available apart from the provisions of the 2004 Act and these Rules, contravention of, or failure to comply with any of the provisions of the Act or of these Rules by a licence holder shall, so far as it causes damage, be actionable.
(b) to give or send a document to a person; (c) to inform a person or provide a person with information; or (d) to make enquiries and to receive answers, may be satisfied by one of the means in paragraph (3).
(b) sending, transmitting or receiving the notice, document, information, enquiry, answer or consent by post, facsimile or by other electronic means to an address provided for that purpose by the intended recipient, provided that any information so given, sent or transmitted is in a form which is clearly legible by the intended recipient. Definition of connected person 1.For the purposes of this Schedule a person is considered to be connected with —
(b) any person who is in partnership with him; (c) any company of which he is a director or other officer and any company connected with that company; (d) in the case of a company—
(ii) any subsidiary or holding company both as defined in section 736 of the Companies Act 1985[7], of that company and any person who is a director or other officer or an employee of any such subsidiary or holding company; and (iii) any company of which the same person or persons have control; and (e) in the case of a trustee of a trust, a beneficiary of the trust and any person to whom the terms of the trust confer a power that may be exercised for that person's benefit. Prohibition on charging fees
(b) hiring or purchasing goods, whether provided by the licence holder or by any person with whom the licence holder is connected.
(ii) the worker has taken up or proposes to take up employment with any other person; or (b) require the worker to notify the licence holder, or any person with whom he is connected, of the identity of any future employer. (2) For the avoidance of doubt, the following shall not constitute a detriment for the purposes of this paragraph—
(b) the recovery of losses incurred by a licence holder as a result of the failure of the worker to perform agreed work; or (c) a requirement in a contract with the licence holder for the worker to give a reasonable period of notice to terminate the contract. Restriction on providing workers in industrial disputes
(b) the duties normally performed by any other worker employed by the labour user and who is assigned by the labour user to perform the duties normally performed by the first worker, unless in either case the licence holder does not know, and had no reasonable grounds for knowing, that the first worker is taking part in a strike or other industrial action.
(b) introduce or refer the labour user to any person with whom the licence holder is connected with a view to that person paying to or making arrangements for such a payment to the worker. (2) This paragraph does not apply where the labour user and the licence holder are connected.
(b) in any other case, on terms no less favourable to the labour user than those which applied immediately before the licence holder received the notice. (2) In sub-paragraph (1), "transfer fee" means any payment in connection with the worker taking up employment with the labour user or in connection with the worker working for the labour user pursuant to being supplied by another licence holder.
(b) taking up employment with any person (other than the labour user) to whom the labour user has introduced him; or (c) working for the labour user pursuant to being supplied by another licence holder, is unenforceable by the licence holder in relation to the event concerned where the worker begins such employment or begins working for the labour user pursuant to being supplied by another licence holder, as the case may be, after the end of the relevant period.
(b) subject to sub-paragraph (6), the period of 14 weeks commencing on the first day on which the worker worked for the labour user pursuant to the supply of that worker to that labour user by the licence holder. (6) In determining for the purposes of sub-paragraph (5)(b) the first day on which the worker worked for the labour user pursuant to the supply of that worker to that labour user by the licence holder, no account must be taken of any supply that occurred prior to a period of more than 42 days during which that worker did not work for that labour user pursuant to being supplied by that licence holder.
(b) otherwise directly or indirectly request a payment to which by virtue of this paragraph the licence holder is not entitled. Prohibition on withholding payment to workers
(b) the worker's failure to prove that he has worked during a particular period of time, provided that this provision shall not prevent the licence holder from satisfying himself by other means that the worker worked for the particular period in question; (c) the worker not having worked during any period other than that to which the payment relates; or (d) any matter within the control of the licence holder. Requirement to obtain agreement to terms with workers
(b) the terms referred to in paragraph 10. (2) Subject to sub-paragraph (3), a licence holder must record all terms in writing, where possible in one document, and give the worker the written terms before he provides any services to the worker.
(b) an undertaking that the licence holder will pay the worker in respect of work done by him, whether or not the licence holder is paid by the labour user in respect of that work; (c) the length of notice of termination which the worker is obliged to give the licence holder, and entitled to receive from him, in respect any particular assignment; (d) either—
(ii) the minimum rate of remuneration the licence holder reasonably expects to achieve for the worker; (e) details of the intervals at which remuneration will be paid; and Requirement to obtain agreement to terms with labour users
(ii) the circumstances, if any, in which refunds or rebates are payable to the labour user, the scale of such refunds or rebates and, if no refunds or rebates are payable, a statement to that effect; and (b) details of the procedure to be followed if a worker introduced or supplied to the labour user proves unsatisfactory. (2) The licence holder must record the terms in a single document and send a copy to the labour user as soon as reasonably practicable.
(b) the date on which the labour user requires a worker to commence work and the duration, or likely duration, of the work; (c) the position which the labour user seeks to fill, including the type of work a worker in that position would be required to do, the location at which and the hours during which he would be required to work; (d) any risks to health or safety known to the licence holder or labour user and the steps the licence holder or labour user has taken to prevent or control such risks; (e) the experience, training, qualifications and any authorisation which the licence holder or labour user considers are necessary, or which are required by law or by any professional body, for a worker to possess in order to work in the position; and (f) any expenses payable by or to the worker. Confirmation to be obtained about a worker
(b) that the worker has the experience, training, qualifications and any authorisation which the licence holder or labour user considers are necessary, or which are required by law or by any professional body, to work in the position which the labour user seeks to fill; and (c) that the worker is willing to work in the position which the labour user seeks to fill. Steps to be taken for the protection of the worker and the labour user
(b) without prejudice to any of his duties under any enactment or rule of law in relation to health and safety at work, made all such enquiries as are reasonably practicable to ensure that it would not be detrimental to the interests of the worker or the labour user for the worker to work for the labour user in the position which the labour user seeks to fill. (2) Where a licence holder receives or obtains information which gives him reasonable grounds to believe that a worker is unsuitable for the position with a labour user for which the worker is being supplied, he must without delay—
(b) end the supply of that worker to the labour user. (3) Where a licence holder receives or obtains information which indicates that a worker may be unsuitable for the position concerned, but where that information does not give reasonable grounds to believe that the worker is unsuitable, he must without delay—
(b) as soon as possible make such further enquiries as are reasonably practicable as to the suitability of the worker for the position concerned, and inform the labour user and any intermediaries of the enquiries made and any further information obtained. (4) Where, as a result of the enquiries made under sub-paragraph (3) a licence holder has reasonable grounds to believe that the worker is unsuitable for the position concerned he must, without delay—
(b) end the supply of that worker to the labour user. (5) In this paragraph "without delay" means on the same day, or where not reasonably practicable, the next working day.
(ii) informs the worker whether he will be supplied under a contract of service or a contract for services; (b) he offers a worker a position with a labour user—
(ii) if a rate of remuneration has not been agreed with the labour user he informs the worker (whether orally or otherwise) of the rate of remuneration he will pay him to work in that position. (2) Where any of the information referred to in sub-paragraph (1) was given orally, the licence holder must provide it in paper form or by electronic means as soon as possible and in any event within three working days.
(b) the information required is the same as the information which the worker and labour user have already received, unless the worker or labour user request otherwise.
(b) A has the prior consent of the labour user and the worker to any assignment or sub-contract. (2) A may not assign or sub-contract any of his obligations under any contract or arrangement with a worker or labour user to B unless the terms upon which those obligations are assigned or sub-contracted are in writing, where possible recorded in a single document.
(b) suitable arrangements have been made for the worker to travel to such accommodation. (3) Where a worker is—
(b) the licence holder, labour user or any intermediary has arranged free travel or payment of fares for the worker's journey to the place of work, the licence holder must, if the work does not start or upon it ending, either arrange free travel for the worker's return journey, pay his return fare or obtain an undertaking from the labour user or any intermediary to arrange free travel or pay the return fare.
(b) he may not be asked to repay a greater sum than the amount loaned. Confidentiality
(b) for the purposes of any legal proceedings (including arbitration); (c) in the case of a worker who is a member of a professional body, to the professional body of which he is a member; (d) for the purpose of the apprehension or prosecution of offenders; (e) for the purpose of national security; or (f) as required by any enactment. (2) A licence holder may not disclose information relating to a worker to any person for whom the worker is currently working without that worker's prior consent, which has not by the time of such disclosure been withdrawn, and may not make the provision of any services to that worker conditional upon such consent being given or not withdrawn.
(b) the worker's name, address and, if under 22, date of birth; (c) any terms which apply or will apply between the licence holder and the worker, and any document recording any variation; (d) any relevant details of the worker's training, experience or qualifications and any authorisation to undertake particular work (and copies of any documentary evidence of the same obtained by the licence holder); (e) details of any requirements specified by the worker in relation to taking up employment; (f) the names of labour users or sub-contractors to whom the worker is supplied; (g) details of any resulting engagement and the date from which it takes effect; (h) the date the contract was terminated (where applicable); and (i) details of any enquiries made under paragraphs 13 and 14 about the worker and the position concerned, with copies of all relevant documents and dates they were received or sent. Records relating to labour user
(b) the labour user's name and address, and location of the place of work if different; (c) details of any sub-contractors; (d) details of the position the labour user seeks to fill; (e) the duration or likely duration of the work; (f) any experience, training, ability, qualifications, or authorisation required by the licence holder or labour user by law, or by any professional body; and any other conditions attaching to the position the labour user seeks to fill; (g) the terms offered in respect of the position the labour user seeks to fill; (h) a copy of the terms between the licence holder and the labour user, and any document recording any variation; (i) the names of workers supplied; (j) details of enquiries under paragraphs 12 and 14 about the labour user and the position he seeks to fill, with copies of all relevant documents and dates of their receipt; (k) the details of each resulting engagement and date from which it takes effect; and (l) dates of requests by the licence holder for fees or other payment from the labour user and of receipt of such fees or other payments, and copies of statements or invoices. Records relating to dealings with other licence holders
(b) the date and copy of any agreement made under paragraph 16 (2). General provisions relating to records
(b) be familiar with the use of any equipment or procedures used when gathering shellfish or accessing the work area; and (c) be able to communicate directly with every one of the group of workers. (4) The licence holder or the supervisor must notify the Maritime and Coastguard Agency Rescue and Coordination Centre of—
(b) contact details for the licence holder or supervisor; (c) the number of workers in the group; (d) where the work area is; and (e) the times the group is going out and returning from the work area. (5) For the purposes of this paragraph, the "work area" means the place where the shellfish are gathered. (This note is not part of the Rules) These Rules establish the procedure for licensing gangmasters covered by the provisions of the Gangmasters (Licensing) Act 2004 (the 2004 Act), and the conditions that will apply to the licences. The Gangmasters (Licensing Conditions) Rules 2006 are revoked and replaced by these Rules. Rule 3 specifies the information to be provided by an applicant. Rule 4 and the Schedule specify the licence conditions that apply to licence holders. One of the requirements of obtaining or keeping a licence is that the licence holder is fit and proper. Rule 5 provides that an applicant or licence holder is fit and proper if he complies with the criteria set out in these Rules and with the obligations contained in regulation 12 (2) of the Gangmasters (Licensing Authority) Regulations 2005 which establish a general principle governing the determination of criteria assessing the fitness of applicants for licences and others and the terms of licence conditions. Rule 6 specifies when a new application will be required. Rule 7 prescribes the licence fee, the renewal fee and rule 8 the charge for inspection at the point of application. The Schedule contains licence conditions which will apply to licence holders if applicable to them. Paragraph 23 of the Schedule contains conditions which will apply only to shellfish gatherers. A partial Regulatory Impact Assessment of the effect that this instrument will have on the costs of the shellfish business has been prepared and has been placed in the library of each House of Parliament. Copies of the original Regulatory Impact Assessment may be obtained from the Gangmasters Licensing Authority, PO Box 8538, Nottingham, NG8 9AF. Notes: [1]2004 c.11.back [2]1971 c.80.back [3]S.I. 2006/660.back [4]1974 c.53.back [5]www.lpcode.co.ukback [6]S.I. 2005/448.back [7]1985 c.6; section 736 was substituted by the Companies Act 1989 (c40), section 144(1).back [8]1992 c 52.back [9]1996 c.18.back ISBN0 11 075069 1 -- Back --
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