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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 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 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.

Void Agreements

• 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 his 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.

Apprenticeship Scheme

Information about the approved apprenticeship certificates is 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.

Training

• For the purposes of training courses provided for in article 23 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 (PL716) published by the Department of Trade and Industry ( DTI) is obtainable free of charge. This guide also gives details of appropriate leaflets available contact:

Any Job Centre Plus or from DTI Publications Orderline: 0845 015 0010

Website: www.dti.gov.uk/publications

Redundancies

A guide (PL 718), for employees published by the DTI now includes a claim form and is entitled Redundancy and Insolvency A Guide for Employees contact:

Helpline: 0131 316 5600
Redundancy National Helpline: 0845 1450004

Statutory Sick Pay ( SSP)

Employers obligations under the SSP are contained in the Employers' Manual to SSP (E15) which is available free of charge. An Employee's guide to SSP is available by contacting 0845 302 1479 contact:

Local Inland Revenue or Benefits Agency Offices

Employers' Helpline: 0845 714 3143
Website: www.inlandrevenue.gov.uk

Working Tax Credit

contact:

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: 0845 7474747
Website: www.acas.org.uk

Working Time Regulations

For copies of A Guide to Working Time Regulations contact:

DTI Publications Order line: 0845 015 0010

Working Time Regulations ( WTR) part of DTI website - www.dti.gov.uk/employment/employment-legislation/working-time-regs/index.html

http://www.dti.gov.uk/employment/employment-legislation/working-time-regs/index.html

For assistance on any matters to do with weekly and night working time limits and health assessments contact:

Health and Safety Executive ( HSE) Infoline: 08701 545500

or contact the Environmental Health Department of your local authority

For assistance on any matters about time off, rest breaks and paid annual leave contact: ACAS Helpline: 0845 7474747

For information about making a claim or going to an Employment Tribunal contact: Employment Tribunals Service: 0845 7959775

National Minimum Wage ( NMW)

For assistance on any matters to do with NMW contact: NMW confidential helpline: 0845 6000 678

DTI National Minimum Wage website: www.dti.gov.uk/er/nmw

TIGER (Tailored Interactive Guidance on Employment Rights): www.tiger.gov.uk

Health & Safety Executive

Infoline: 0845 345 0055
Website: www.hse.gov.uk

Specimen certificate for the purposes of Article 23 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 Executive Environment and Rural Affairs Department will always try to answer any questions.
• Officials of the Department 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 Department 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 Department considers that a worker has not received his full entitlement, the employer will be advised of the problem in writing and invited to remedy the position. For a minor problem, this may mean the employer taking remedial action to ensure that it does not happen again. For a more serious problem, a payment of arrears of pay to the worker may be necessary.
• 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 he is not being paid in accordance with the Order, then he should contact the Secretary, Scottish Agricultural Wages Board, Pentland House, 47 Robb's Loan, Edinburgh, EH14 1TY, Tel No: 0131-244-6397. E-mail sawb@scotland.gsi.gov.uk
• Complaints about the standard of service received from the Scottish Executive Environment and Rural Affairs Department Agricultural Wages enforcement staff, should be directed initially to the Head of Agriculture Policy Division, Room 255, Pentland House, 47 Robb's Loan, Edinburgh EH14 1TY.
• If having referred the matter to the Head of Agriculture Policy Division you remain dissatisfied you may refer the matter to the Minister for Environment and Rural Development, Pentland House, 47 Robb's Loan, Edinburgh EH14 1TY.
• Where an employer or worker considers that there has been maladministration by Scottish Executive Environment and Rural Affairs Department staff in the handling of a routine inspection or complaint case, as opposed to the outcome of the case, he 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.

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