Statutory Instruments
EMPLOYMENT AND TRAINING
Made
7th May 1991
Coming into force
21st May 1991
Whereas proposals made by the Engineering Industry Training Boardfor the raising and collection of a levy have been submitted to theSecretary of State under section 11(1) of the Industrial Training Act1982(1) (“the 1982 Act”);
And whereas in pursuance of section 11(3) of the 1982 Act the saidproposals include provision for the exemption from the levy of employerswho, in view of the small number of their employees, ought in theopinion of the Secretary of State to be exempted from it; And whereasthe Secretary of State is satisfied that proposals made in pursuance ofsection 11(4)(a) of the 1982 Act and falling within section 11(5)(a) ofthe said Act (“the relevant proposals”) are necessary as mentioned in the said section 11(5), and that thecondition mentioned in section 11(6)(a) of the 1982 Act is satisfied inthe case of the relevant proposals;
And whereas the Secretary of State considers that the amount which,disregarding any exemption, will be payable by virtue of the followingOrder by certain employers in the engineering industry and which heestimates will exceed an amount which he estimates as equal to one percent. of relevant emoluments, is appropriate in all the circumstances,and the following Order therefore falls within section 11(7)(b) of theAct;
And whereas a draft of the following Order was laid beforeParliament in accordance with section 12(6) of the 1982 Act and approvedby resolution of each House of Parliament;
Now, therefore, the Secretary of State, in exercise of the powersconferred by sections 11(2), 12(3) and (4) of the 1982 Act and of allother powers enabling him in that behalf, hereby makes the followingOrder:
1. This Order may be cited as the Industrial Training Levy (EngineeringBoard) Order 1991 and shall come into force on the fourteenth day afterthe day on which it is made.
2.—(1) In this Order unless the context otherwise requires:—
(a)“agriculture” has the same meaning as in section 109(3) of the Agriculture Act1947(2) or, in relation to Scotland, as in section 86(3) of theAgriculture (Scotland) Act 1948(3);
(b)“assessment” means an assessment of an employer to the levy;
(c)“the Board” means the Engineering Industry Training Board;
(d)“business” means any activities of industry or commerce;
(e)“charity” has the same meaning as in section 506 of the Income andCorporation Taxes Act 1988(4);
(f)“the twenty-seventh base period” means the period of twelve months that commenced on 6th April 1990;
(g)“the twenty-seventh levy period” means the period commencing with the day upon which this Ordercomes into force and ending on 31st August 1991;
(h)“emoluments” means all emoluments assessable to income tax under Schedule E ofthe Income and Corporation Taxes Act 1988 (other than pensions), beingemoluments from which tax under that Schedule is deductible, whether ornot tax in fact falls to be deducted from any particular payment thereofand any emoluments or payments intended to be disbursed as emolumentspayable under any agreement (whether or not a contract of service) forthe preparation of engineering drawings in connection with engineeringconstruction activities or under any labour-only agreement in respect ofengineering activities or engineering construction activities;
(i)“employer” (except in article 2(2) of this Order) means a person who is anemployer in the engineering industry at any time in the twenty-seventhlevy period;
(j)“engineering activities” means any one or more of the activities which, subject to theprovisions of paragraph 2 of Schedule 1 to the industrial trainingorder, are activities of the engineering industry by virtue of paragraph1(i) of that Schedule and any related or administrative activities of akind to which paragraph 1(m) of that Schedule applies undertaken inrelation thereto;
(k)“engineering establishment” means an establishment in Great Britain engaged in thetwenty-seventh base period wholly or mainly in the engineering industryfor a total of twenty-seven or more weeks or, being an establishmentthat commenced to carry on business in the twenty-seventh base period,for a total number of weeks exceeding one half of the number of weeks inthe part of the said period commencing with the day on which businesswas commenced and ending on the last day thereof;
(l)“the engineering industry” does not include any activities of an establishment which have beentransferred from the industry of the Board to the industry of anotherindustrial training board by one of the transfer orders but save asaforesaid means any one or more of the activities which, subject to theprovisions of paragraph 2 of Schedule 1 to the industrial trainingorder, are specified in paragraph 1(i) and (j) of that Schedule (and anyrelated or administrative activities of a kind to which paragraph 1(m)of that Schedule applies undertaken in relation thereto) as activitiesof the engineering industry or, in relation to an establishment whoseactivities have been transferred to the industry of the Board by one ofthe transfer orders, any activities so transferred;
(m)“engineering construction activities” means any one or more of the activities which, subject to theprovisions of paragraph 2 of Schedule 1 to the industrial trainingorder, are activities of the engineering industry by virtue of paragraph1(j) of that Schedule and any related or administrative activities of akind to which paragraph 1(m) of that Schedule applies undertaken inrelation thereto;
(n)“exemption certificate” means a certificate issued by the Board under section 14 of theIndustrial Training Act 1982;
(o)“the industrial training order” means the Industrial Training (Engineering Board) Order 1964(5);
(p)“labour-only agreement” means agreement or arrangement, either written or oral, madebetween an employer and any other person or persons under which services(including any incidental use of tools) of each person or persons or ofany other person or persons were rendered to the employer in his tradeor business;
(q)“the levy” means the levy imposed by the Board in respect of thetwenty-seventh levy period;
(r)“notice” means a notice in writing;
(s)“site employee” means an employee the activities of whose employment take placewholly or mainly at a site where activities falling under paragraph 1(i)or (j) of Schedule 1 to the industrial training order are carried on;
(t)“the transfer orders” means—
(i)the Industrial Training (Transfer of the Activities ofEstablishments) Order 1974(6);
(ii)the Industrial Training (Transfer of the Activities ofEstablishments) (No. 2) Order 1974(7);
(iii)the Industrial Training (Transfer of the Activities ofEstablishments) Order 1975(8);
(iv)the Industrial Training (Transfer of the Activities ofEstablishments) (No. 2) Order 1975(9);
(v)the Industrial Training (Transfer of the Activities ofEstablishments) Order 1976(10);
(vi)the Industrial Training (Transfer of the Activities ofEstablishments) (No. 2) Order 1976(11);
(vii)the Industrial Training (Transfer of the Activities ofEstablishments) Order 1977(12);
(viii)the Industrial Training (Transfer of the Activities ofEstablishments) Order 1978(13);
(ix)the Industrial Training (Transfer of the Activities ofEstablishments) (No. 2) Order 1978(14);
(x)the Industrial Training (Transfer of the Activities ofEstablishments) (No. 3) Order 1978(15);
(xi)the Industrial Training (Transfer of the Activities ofEstablishments) Order 1979(16);
(xii)the Industrial Training (Transfer of the Activities ofEstablishments) Order 1980(17);
(xiii)the Industrial Training (Transfer of the Activities ofEstablishments) (No. 2) Order 1980(18);
(xiv)the Industrial Training (Transfer of the Activities ofEstablishments) (Order 1981(19); and
(xv)the Industrial Training (Transfer of the Activities ofEstablishment) Order 1990(20).
(2) In reckoning the amount of emoluments for the purpose of this Orderno regard shall be had to the emoluments of any person—
(a)undergoing a course of training as a seagoing officer or ratingunder an agreement in writing with an employer in the shipping industry,or with any organisation of employers in that industry or with anyassociation of such organisations;
(b)employed by London Regional Transport or its subsidiaries wholly inactivities specified in paragraph 1(m) of Schedule 1 to the industrialtraining order, not being design or drawing or the training of employeesor apprentices;
(c)engaged wholly in agriculture; or
(d)engaged wholly in the supply of food or drink for immediateconsumption.
(3) Any reference in this Order to an establishment that commences tocarry on business or that ceases to carry on business shall not be takento apply where the location of the establishment is changed but itsbusiness is continued wholly or mainly at or from the new location,or where the suspension of activities is of a temporary or seasonalnature.
(4) In this Order an establishment shall be taken to be wholly or mainlyengaged in engineering activities or in engineering constructionactivities if it is so engaged during the twenty-seventh base period fora total of twenty-seven or more weeks, or, being an establishment thatcommenced to carry on business in the twenty-seventh base period, for atotal number of weeks exceeding one half of the number of weeks in thepart of the said period commencing with the day on which business wascommenced and ending on the last day thereof.
(5) In this Order employees shall be taken to be wholly or mainlyengaged in or in connection with engineering activities or in or inconnection with engineering construction activities during any week inthe twenty-seventh base period in which they are so engaged if but onlyif they are so engaged for more than half the total number of weeks inwhich they are employed by the employer during the twenty-seventh baseperiod.
3.—(1) Subject to the provisions of article 11 of this Order, the levy tobe imposed by the Board on employers in respect of the twenty-seventhlevy period shall be assessed in accordance with the provisions of thisarticle.
(2) The levy shall be assessed by the Board separately in respect ofeach relevant establishment (that is to say, each engineeringestablishment other than an establishment of an employer who is exemptby virtue of the provisions of article 4 or article 5 of this Order, or,subject to the provisions of article 6, one which is an establishment inrespect of which an exemption certificate has been issued to theemployer) but in agreement with the employer one assessment may be madein respect of any number of establishments, in which case suchestablishments shall be deemed for the purposes of that assessment toconstitute one establishment.
(3) The levy assessed in respect of an establishment wholly or mainlyengaged in engineering activities or in engineering constructionactivities shall be the aggregate of—
(a)an amount equal to 1.5 per cent. of the sum of the emoluments of allsite employees employed in the twenty-seventh base period at or from theestablishment by the employer in so far as that sum exceeds£50,000;
(b)an amount equal to 1 per cent. of the sum of the emoluments of allemployees other than site employees employed in the twenty-seventh baseperiod at or from the establishment by the employer; and
(c)an amount equal to the sum (if any) by which 2 per cent. of thelabour-only payments exceeds 2 per cent. of the labour-only receipts. Inthis sub-paragraph—
(i)“2 per cent. of the labour-only payments” means the sum which (rounded down where necessary to the nearest£1) represents 2 per cent. of all payments (including payments forincidental use of tools) made by the employer during the twenty-seventhbase period under the labour-only agreements for services rendered tohim in his trade or business carried out at or from the establishment;and
(ii)“2 per cent. of the labour-only receipts” means the sum which (rounded down where necessary to the nearest£1) represents 2 per cent. of all payments (including payments forthe incidental use of tools) received by the employer during thetwenty-seventh base period under the labour-only agreements for servicesrendered by him or on his behalf in his trade or business carried out ator from the establishment.
4. A charity shall be exempted from the levy.
5. An employer shall be exempted from the levy in respect of anyestablishment of his which is wholly or mainly engaged in engineeringactivities or in engineering construction activities in respect of anyportion of the levy attributable to the emoluments of any employees ofhis, other than site employees, who were wholly or mainly engaged inengineering activities or in engineering construction activities wherethe total number of such employees employed by him (including thoseemployed under any labour-only agreement) at or from any engineeringestablishment or establishments of his engaged in engineering activitiesor in engineering construction activities in the twenty-seventh baseperiod does not exceed 30.
6. An exemption certificate issued by the Board shall not exempt anyemployer from—
(a)any portion of the levy which is to be assessed under article3(3)(a) and (c) above, or
(b)that portion of the levy which is equal to 0.15 per cent. of the sumof the emoluments upon which the levy is to be assessed under article3(3)(b) above.
7.—(1) The Board shall serve an assessment notice on every employerassessed to the levy, but one notice may comprise two or moreassessments.
(2) The amount of any assessment payable under an assessment noticeshall be rounded down to the nearest £1.
(3) An assessment notice shall state the Board’s address for the serviceof a notice of appeal or of an application for an extension of time forappealing.
(4) An assessment notice may be served on the person assessed to thelevy either by delivering it to him personally or by leaving it, orsending it to him by post, at his last known address or place ofbusiness in the United Kingdom, or if that person is a corporation, byleaving it, or sending it by post to the corporation, at such address orplace of business or at its registered or principal office.
8.—(1) Subject to the following provisions of this Order, the amount ofeach assessment appearing in an assessment notice served by the Board(the date of which shall not be earlier than 31st August 1991) shall bedue and payable by the employer to the Board one month after the date ofthe notice.
(2) The amount of an assessment shall not be recoverable by the Boarduntil there has expired the time allowed for appealing against theassessment by article 10(1) of this Order and any further period orperiods of time that the Board or an industrial tribunal may haveallowed for appealing under paragraph (2) or (3) of that article orwhere an appeal is brought, until the appeal is decided or withdrawn.
9.—(1) The Board may, by a notice served on the person assessed to the levyin the same manner as an assessment notice, withdraw an assessment ifthat person has appealed against that assessment under the provisions ofarticle 10 of this Order and the appeal has not been entered in theRegister of Appeals kept under the appropriate Regulations specified inparagraph (4) of that article.
(2) The withdrawal of an assessment shall be without prejudice to thepower of the Board to serve a further assessment notice in respect ofany establishment to which that assessment relates.
10.—(1) A person assessed to the levy may appeal to an industrial tribunalagainst the assessment within one month from the date of the service ofthe assessment notice or within any further period or periods of timethat may be allowed by the Board or an industrial tribunal under thefollowing provisions of this article.
2 The Board by notice may for good cause allow a person assessedto the levy to appeal to an industrial tribunal against the assessmentat any time within the period of four months from the date of the serviceof the assessment notice or within such further period or periodsas the Board may allow before such time as may then be limited forappealing has expired.
(3) If the Board shall not allow an application for extension of timefor appealing, an industrial tribunal shall upon application made to thetribunal by the person assessed to the levy have the like powers as theBoard under the last foregoing paragraph.
(4) An appeal or an application to an industrial tribunal under thisarticle shall be made in accordance with the Industrial Tribunals(England and Wales) Regulations 1965(21) except where the establishment to which the relevantassessment relates is wholly in Scotland in which case the appeal orapplication shall be made in accordance with the Industrial Tribunals(Scotland) Regulations 1965(22).
(5) The powers of an industrial tribunal under paragraph (3) of thisarticle may be exercised by the President of the Industrial Tribunals(England and Wales) or by the President of the Industrial Tribunals(Scotland) as the case may be.
11.—(1) The provisions of this article shall apply in relation to anestablishment that ceases to carry on business in the twenty-seventhlevy period on or before 30th August 1991.
(2) The amount of the levy imposed in respect of the establishment shallbe in the same proportion to the amount that would otherwise be dueunder the provisions of article 3 of this Order as the number of daysbetween the commencement of the twenty-seventh levy period and the dateof cessation of business (both dates inclusive) bears to the number ofdays in the said levy period.
(3) Article 8(1) of this order shall have effect as if the words inparenthesis were omitted.
12.—(1) Upon the discharge by a person assessed to the levy of his liabilityunder an assessment the Board shall if so requested issue to him acertificate to that effect.
(2) The production in any proceedings of a document purporting to becertified by the Secretary of the Board or any other person, being amember, officer or servant of the Board authorised to act in thatbehalf, to be a true copy of an assessment or other notice issued by theBoard or purporting to be a certificate such as is mentioned in theforegoing paragraph of this article shall, unless the contrary isproved, be sufficient evidence of the document and of the facts statedtherein.
Signed by order of the Secretary of State.
Robert Jackson
Parliamentary Under Secretary of State,
Department of Employment
7th May 1991
(This note is not part of the Order)
This Order gives effect to proposals of the Engineering IndustryTraining Board which were submitted to the Secretary of State. Theproposals are for the imposition of a levy on employers in theengineering industry for the purpose of raising money towards meetingthe expenses of the Board.
The levy is to be imposed in respect of the twenty-seventh levyperiod commencing on the day upon which this Order comes into force andending on 31st August 1991.
Subject to the exemptions in articles 4 and 5, the levy will beassessed by the Board in accordance with article 3, and there will be aright of appeal against an assessment to an industrial tribunal.
1982 c. 10; sections 11 and 12 were amended by theEmployment Act 1989 (c. 38), Schedule 4, paragraphs 10 and 11respectively.
S.I. 1964/1086; relevant amending instruments are S.I.1980/1273, 1990/526.
S.I. 1965/1101, amended by S.I. 1967/301.
S.I. 1965/1157, amended by S.I. 1967/302.