Can Elche, Ellen or sidewinder confirm/deny my findings please? Modern apprenticeship and equal pay.

[ErikaPNP]

There's a lad (family friend) who is having some trouble with his employer. He is 19 years of age and is in a level 3 modern apprenticeship. Now, from what I can gather, as he is 19 and not in his first year of the apprenticeship (it's his third year), he should now be entitled to the national minimum wage of £4.77 per hour.

 

He is Scotland however it shouldn't make a difference with the relevant laws I have looked at - I hope!!

 

I've looked at HMRC and I've checked out The employment equality (age) regulations 2006 S 31 (2) and S 31 (3), which appear to confirm my thinking.

 

So am I right or am I wrong? Should this lad be entitled to NMW? His employers are dragging their feet and refusing to budge.

[sarajulldin]

what type of business is the employer? i was a apprentice for my council 3 years ago and got like 90 per week, i was there for three years, i did alot of research and found that the NMW does not apply to apprentices working within government which was annoyng lol

[sarajulldin]

and just checked the calculator on worksmart.org and that confirms it aswell he is entitled to NMW

[ErikaPNP]

It's not the public services so he should be covered. Govt departments are often exempt from matters that the private sector is expected to abide by. - thank you anyhoo

 

It's a private company

[sarajulldin]

yh get him to send a letter to the HR department if there is one if not to his boss, just a letter explaining what you think the law says and ask him to comment in writing and if he feels he is not entitled to NMW explain why

[elche]

Seems like due to his age + over 12 months in the role, NMW should apply:

 

Excluded from NMW protection are workers who are employed under a contract of apprenticeship or are treated as such and are either under 19 or are within the first 12 months of the commencement of the relevant employment.

 

As neither of these apply, then NMW should be paid.

 

The relevant statutory reference is SI 1999/584 NMW regs 1999 reg 12:

 

12 Workers who do not qualify for the national minimum wage

 

(1) . . .

(2) A worker who—

(a) . . .

(b) is employed under a contract of apprenticeship or, in accordance with paragraph (3), is to be treated as employed under a contract of apprenticeship, and

© is within the first 12 months after the commencement of that employment or has not attained the age of 19.

 

 

I know that in England HMRC will enforce, I assume this applies to Scotland also?

 

 

NMW helpline 0845-600 0678

 

 

Che

[ErikaPNP]

He tells me he did ring HMRC NMW helpline who said they will investigate the matter - but I was unsure what was meant by "investigate" - whether they meant they'd have a look into it or whether they would actually enforce it, and he wasn't entirely sure (just a young lad finding his feet in life). We were also unsure if they relevant law applied to Scotland. I couldn't think of a reason why not as NMW is just that - national. Thank you for clarifiying.

 

He has brought the matter up with his employers who are being rather touchy about it, and fobbing him off. I get the feeling because he's a youngster they think he'll just take it lying down.

 

Much, much appreciated Che - I know your time is stretched - thank you.

 

I wonder if I should do a template letter for him to sign and give his employers, pointing out the regs - he is worried with HMRC getting involved if his card will be "marked", so to speak. If I can help him sort this out without his card being "marked" it would be better for him. He's half way through it and doesn't want to lose it. For a young lad, he works dashed hard.

 

He is given his wages in cash, doesn't sign for them and the payslip is handwritten. I asked if there were any deductions for NI PAYE he said no, he's always got the same wage off them. Apparently other employers (time served) get cash in hand also but their deductions show.

[lihi]

Hi Erica

 

I work for a company who places apprenticeships with employers, I am certain he is entitled to MNW. I have received a lot of emails of the last couple of months about apprenticeships entitlement to MNW.

 

I'll post up again Monday with the content of the emails, if I forget please PM me and give me a prod (pregnant and struggling not to be distracted by bright lights).

[lihi]

Hi

 

This is the information we were sent re wages for apprentices, I note the person in question is based in Scotland. This information was issued for apprentices in England, confirmation will be required for differences between the two.

 

Apprenticeship Wages as of 1st August 2009

Age

Wage

16-18

£95

This is relevant to any apprentice who falls into this age category, this is the minimum wage that is needed to be paid by the employer (please note the employer can pay more if they choose to).

19+

National Minimum Wage (currently £4.77 an hour)

(£190.80 Gross for 37.5 hour week)

If an 18 year old learner becomes 19 whilst completing an apprenticeship but have been on the programme for less than 12 months, their wage of £95 will remain the same.

Once the 18 year old learner has been on the apprenticeship programme for more than 12 months (obviously turning 19 during this time) then the National Minimum Wage applies.

 

All of this information has been gained from the Apprenticeship Helpline (08000 150600) on Friday 24th July, 2009.

 

Hope this helps!

[ErikaPNP]

Thank you to everyone. I wrote this letter to his employers:

 

Dear *****,

 

RE: National Minimum Wage Entitlement

 

I refer to your letter dated ***** wherein you advise me that whilst I am an apprentice the National Minimum Wage does not apply to me, as I am in training. I believe the apprenticeship I am completing is a “Level 3 Modern Apprenticeship”.

 

I draw your attention to the following legislation:

 

· Statutory Instrument 1999 No 584: The National Minimum Wage Regulations 1999, specifically regulation 12, paragraphs 2 (b), 2 © and 3 which stipulate as follows:

 

12. - (2) A worker who-

(b) is employed under a contract of apprenticeship or, in accordance with paragraph (3), is to be treated as employed under a contract of apprenticeship, and

 

© is within the first 12 months after the commencement of that employment or has not attained the age of 19,

does not qualify for the national minimum wage in respect of work done for his employer under that contract.

 

(3) A worker is to be treated as employed under a contract of apprenticeship for the purposes of paragraph (2)(b) if, and only if, he is engaged under the arrangements made by the Government known as Modern Apprenticeships.

 

I also refer you to Her Majesty’s Revenue and custom’s guidance on the National Minimum Wage for Apprentices, which states:

 

From pay reference periods starting on or after 1 October 2006 the special rules for apprentices will be extended to apprentices aged over 25. This will mean that:

 

• Apprentices under age 19 will not qualify for the national minimum wage
  
• Apprentices over age 19 and in the first 12 months of their apprenticeship will not qualify for the national minimum wage.
  

And lastly, I invite you to view the guidance provided on the Direct.gov website in regard to apprenticships/NMW which states:

 

If you are aged 19 or over and have completed the first year of your apprenticeship you are entitled to the NMW. Apprentices for NMW purposes are either workers who have contracts of apprenticeship or workers taking part in training schemes who are treated as if they have a contract of apprenticeship. The schemes are:

 

• in England - Apprenticeships or Advanced Apprenticeships
  
• in Scotland - Skillseekers or Modern Apprenticeships (but only where the arrangements are for the purpose of gaining a Scottish Vocational Qualification at Level 2 or 3 or a National Vocational Qualification at Level 2 or 3)
  
• in Northern Ireland - Jobskills Traineeships or Modern Apprenticeships
  
• in Wales - Modern Apprenticeships or Foundation Modern Apprenticeships
  

 

Accordingly, as I am undertaking in a “Modern Apprenticeship” within Scotland for the purposes of gaining an SVQ at level 3, have attained the age of 19 and have insofar completed more than 12 months of that apprenticeship, I conclude that I satisfy the conditions of entitlement to the National Minimum wage; currently of £4.77 per hour, however increasing to £4.83 per hour from October 2009, based upon my age.

 

I therefore respectfully request that you review your decision in regard to my entitlement to the National Minimum Wage, including the backdating of my legal entitlement to it. If your view continues to be that I am not entitled to the National Minimum Wage, I request that you provide me with written confirmation of this, outlining the reasons for your decision within 28 calendar days of this letter.

 

Yours faithfully

 

He emailed it to his company on the 13th of August. On the 19th, he got his back pay and a letter confirming his entitlement. Result!!

[Ell-enn]

Well done Erika , he's a lucky lad to have you on his side!