Statutory Instruments
Employment
Made
19th March 2015
Coming into force in accordance with regulation 1(1)
The Secretary of State, in exercise of the powers conferred by sections 1(5) and 25(2) of the Gangmasters (Licensing) Act 2004(1), makes the following Regulations.
In accordance with paragraph 5 of Schedule 2 to the Gangmasters (Licensing) Act 2004 the Secretary of State has consulted the Department of Agriculture and Rural Development in Northern Ireland.
A draft of this instrument has been laid before, and approved by a resolution of, each House of Parliament.
1.—(1) These Regulations may be cited as the Gangmasters (Licensing Authority) Regulations 2015 and come into force on the day after the day on which they are made.
(2) In these Regulations—
“the 1973 Act” means the Employment Agencies Act 1973(2);
“the 2004 Act” means the Gangmasters Licensing Act 2004;
“the Board” means the Board established under regulation 3(1);
“the chairman” means the chairman appointed pursuant to regulation 4(2).
2.—(1) The Authority is a body corporate.
(2) The application of the seal of the Authority must be authenticated by the signature of—
(a)the chairman; or
(b)any other person who has been authorised by the Board (whether generally or specifically) for that purpose.
(3) A document purporting to be—
(a)duly executed by the Authority under its seal,
(b)issued by the Authority, or
(c)signed on its behalf,
must be received in evidence and must, unless the contrary is proved, be taken to be so executed, issued or signed.
3.—(1) The Authority must have a Board which must direct its affairs.
(2) The Board must ensure that the Authority properly discharges its functions and complies with the requirements of these Regulations.
(3) The Board may determine its own procedures.
(4) If the Board establishes advisory committees, whose members are not members of the Board, it must take into account any recommendations made by any such committee.
(5) The validity of any proceedings of the Board, or any of its committees, shall not be affected by—
(a)any vacancy among members of the Board or its committees;
(b)any vacancy in the office of the chairman of the Board;
(c)any defect in the appointment of any member of the Board;
(d)any defect in the appointment of the chairman of the Board; or
(e)any defect in the appointment of any member or chairman of a committee.
4.—(1) The Board must consist of—
(a)a chairman; and
(b)no more than eight additional members.
(2) The chairman must be appointed by the Secretary of State in consultation with the Minister of Agriculture and Rural Development in Northern Ireland.
(3) The other members of the Board must be appointed by the Secretary of State.
5.—(1) Subject to the provisions of this regulation, each member of the Board must hold and vacate office in accordance with the terms of their appointment.
(2) At the end of their period of appointment, each member of the Board must continue to hold office until the appointment of their successor takes effect.
(3) A member of the Board may resign by giving notice in writing to the Secretary of State.
(4) The Secretary of State may remove a member of the Board from office if—
(a)they have without reasonable excuse failed adequately to carry out their functions;
(b)without reasonable excuse they have been absent from three consecutive meetings of the Board;
(c)they have been convicted (whether before or after their appointment) of a criminal offence and that conviction is not spent for the purposes of the Rehabilitation of Offenders Act 1974(3);
(d)they are an undischarged bankrupt or their estate has been sequestrated and it has not been discharged, or they have made an arrangement with their creditors, or they are subject to a bankruptcy restrictions order;
(e)they are disqualified from acting as a company director;
(f)they have failed to comply with the terms of their appointment;
(g)they have had a licence under the 2004 Act refused or revoked, and—
(i)the time for lodging any appeal has passed; or
(ii)or an appeal has been unsuccessful;
(h)they are otherwise unable or unfit to carry out their functions.
(5) The Secretary of State may suspend a member of the Board if they have had a licence under the 2004 Act refused or revoked.
(6) The Secretary of State must consult the Minister of Agriculture and Rural Development in Northern Ireland before removing the chairman pursuant to paragraph (4).
(7) The Authority must pay to the members of the Board, and any persons invited to attend a meeting of the Board, such remuneration and allowances as the Secretary of State may determine.
6.—(1) The Authority must employ a chief executive who must be responsible to the Board for carrying out the Authority’s functions and the management of its employees.
(2) The Board may only appoint a chief executive—
(a)with the consent of the Secretary of State; and
(b)on terms and conditions approved by the Secretary of State.
(3) The Authority may employ such other employees as it thinks fit on terms and conditions determined by the Board and approved by the Secretary of State.
7.—(1) The Authority must pay its employees, agents or consultants such remuneration and allowances as it may, with the consent of the Secretary of State, determine.
(2) The Authority must—
(a)pay, or make payments in respect of, such pensions or gratuities to or in respect of any of its employees or former employees as it may, with the consent of the Secretary of State, determine; and
(b)provide for such schemes (whether contributory or not) as it may determine, with the consent of the Secretary of State, for the payment of pensions or gratuities to or in respect of its employees or former employees.
(3) References in paragraph (2) to pensions and gratuities include references to pensions and gratuities by way of compensation to or in respect of employees who suffer loss of employment or loss or diminution of emoluments or other recoverable loss arising from or in connection with their employment.
8.—(1) For the purposes of the exercise of its functions under sections 1, 7, 8 and 9 of the 2004 Act and rules made under section 8, in determining—
(a)the criteria for assessing the fitness of an applicant for a licence or a specified person, and
(b)the conditions of a licence and any modifications of those conditions,
the Authority must have regard to the principle that a person should be authorised to act as a gangmaster only if and in so far as their conduct, and the conduct of a specified person, comply with the requirements of paragraph (2).
(2) The requirements are—
(a)the avoidance of any exploitation of workers as respects their recruitment, use or supply; and
(b)compliance with any obligations imposed by or under any enactment in so far as they relate to, or affect the conduct of, the licence holder or a specified person as persons authorised to undertake certain activities.
(3) In framing licence conditions dealing with the recruitment or supply of workers, the Authority must ensure that, where a gangmaster would be an employment agency or employment business within the meaning of the 1973 Act if section 27 of the 2004 Act were not in force, the licence conditions must include provisions imposing on the licensee, or (as appropriate) other specified persons, requirements corresponding to those which would apply under the 1973 Act if section 27 were not in force in so far as the requirements appear to the Authority to be appropriate in the circumstances.
(4) Where the Authority has made provision in rules under section 8(2)(f) of the 2004 Act for a licence to be granted on a provisional basis, it must assume in relation to any application for such a licence that the applicant or a specified person is a fit person to be granted the licence or specified in the licence as the case may be unless it has reasonable grounds to believe otherwise.
(5) In this regulation “specified person” means any person proposed to be named or otherwise specified in the licence by virtue of section 7(3)(b) of the 2004 Act.
(6) The Authority must ensure that the register established by section 11(1) of the 2004 Act is available for public inspection at all reasonable times and free of charge.
9.—(1) The Authority must—
(a)keep proper accounts and proper records for the purposes of those accounts; and
(b)prepare a statement of accounts in respect of each financial year.
(2) The statement of accounts must be in such form, and contain such information, as the Secretary of State may direct.
(3) The Authority must, within such period after the end of each financial year as the Secretary of State may direct, send a copy of the statement of accounts relating to that year to the Secretary of State and to the Comptroller and Auditor General.
(4) The Comptroller and Auditor General must—
(a)examine, certify and report on every statement of accounts sent by the Authority under this regulation; and
(b)lay copies of each such statement, and of the report on it, before each House of Parliament.
10.—(1) The Authority must, within such period after the end of the financial year as the Secretary of State directs, produce an annual report which must include its annual accounts and a report on its activities.
(2) The annual report must be in such form and contain such information as may be specified in any direction given by the Secretary of State.
(3) The Secretary of State must lay a copy of the annual report before each House of Parliament and must arrange for copies of the annual report to be published in such manner as the Secretary of State considers appropriate.
11. The Gangmasters (Licensing Authority) Regulations 2005(4) are revoked.
Karen Bradley
Parliamentary Under Secretary of State
Home Office
19th March 2015
(This note is not part of the Regulations)
These Regulations make provision for the constitution, structure and other matters relating to the operation of the Gangmasters Licensing Authority. The Authority was established by section 1 of the Gangmasters (Licensing) Act 2004 (“the 2004 Act”), which came into force on 1st December 2004.
These Regulations revoke and remake the Gangmasters (Licensing Authority) Regulations 2005. The principal modification concerns the membership of the Board. Previously the Board included nineteen representative members of various interested organisations and nine members appointed by various government bodies. Under regulation 4 the Board will now consist of up to nine members all appointed by the Secretary of State.