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STATUTORY INSTRUMENTS
1991No. 1164
EMPLOYMENT AND TRAINING
The Industrial Training Levy (Engineering Board) Order 1991
Made
7th May 1991
Coming into force
21st May 1991
Whereas proposals made by the Engineering Industry Training Board
for the raising and collection of a levy have been submitted to the
Secretary of State under section 11(1) of the Industrial Training Act
1982[1]
("the 1982 Act"
);
And whereas in pursuance of section 11(3) of the 1982 Act the said
proposals include provision for the exemption from the levy of employers
who, in view of the small number of their employees, ought in the
opinion of the Secretary of State to be exempted from it; And whereas
the Secretary of State is satisfied that proposals made in pursuance of
section 11(4)(a) of the 1982 Act and falling within section 11(5)(a) of
the said Act ("the relevant proposals"
) are necessary as mentioned in the said section 11(5), and that the
condition mentioned in section 11(6)(a) of the 1982 Act is satisfied in
the 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 following
Order by certain employers in the engineering industry and which he
estimates will exceed an amount which he estimates as equal to one per
cent. of relevant emoluments, is appropriate in all the circumstances,
and the following Order therefore falls within section 11(7)(b) of the
Act;
And whereas a draft of the following Order was laid before
Parliament in accordance with section 12(6) of the 1982 Act and approved
by resolution of each House of Parliament;
Now, therefore, the Secretary of State, in exercise of the powers
conferred by sections 11(2), 12(3) and (4) of the 1982 Act and of all
other powers enabling him in that behalf, hereby makes the following
Order:
Citation and commencement
1. This Order may be cited as the Industrial Training Levy (Engineering
Board) Order 1991 and shall come into force on the fourteenth day after
the day on which it is made.
Interpretation
2.—(1) In this Order unless the context otherwise requires:—
(a) "agriculture" has the same meaning as in section 109(3) of the Agriculture Act
1947[2]
or, in relation to Scotland, as in section 86(3) of the
Agriculture (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 and
Corporation 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 Order
comes into force and ending on 31st August 1991;
(h) "emoluments" means all emoluments assessable to income tax under Schedule E of
the Income and Corporation Taxes Act 1988 (other than pensions), being
emoluments from which tax under that Schedule is deductible, whether or
not tax in fact falls to be deducted from any particular payment thereof
and any emoluments or payments intended to be disbursed as emoluments
payable under any agreement (whether or not a contract of service) for
the preparation of engineering drawings in connection with engineering
construction activities or under any labour-only agreement in respect of
engineering activities or engineering construction activities;
(i) "employer" (except in article 2(2) of this Order) means a person who is an
employer in the engineering industry at any time in the twenty-seventh
levy period;
(j) "engineering activities" means any one or more of the activities which, subject to the
provisions of paragraph 2 of Schedule 1 to the industrial training
order, are activities of the engineering industry by virtue of paragraph
1(i) of that Schedule and any related or administrative activities of a
kind to which paragraph 1(m) of that Schedule applies undertaken in
relation thereto;
(k) "engineering establishment" means an establishment in Great Britain engaged in the
twenty-seventh base period wholly or mainly in the engineering industry
for a total of twenty-seven or more weeks or, being an establishment
that 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 in
the part of the said period commencing with the day on which business
was commenced and ending on the last day thereof;
(l) "the engineering industry" does not include any activities of an establishment which have been
transferred from the industry of the Board to the industry of another
industrial training board by one of the transfer orders but save as
aforesaid means any one or more of the activities which, subject to the
provisions of paragraph 2 of Schedule 1 to the industrial training
order, are specified in paragraph 1(i) and (j) of that Schedule (and any
related or administrative activities of a kind to which paragraph 1(m)
of that Schedule applies undertaken in relation thereto) as activities
of the engineering industry or, in relation to an establishment whose
activities have been transferred to the industry of the Board by one of
the transfer orders, any activities so transferred;
(m) "engineering construction activities" means any one or more of the activities which, subject to the
provisions of paragraph 2 of Schedule 1 to the industrial training
order, are activities of the engineering industry by virtue of paragraph
1(j) of that Schedule and any related or administrative activities of a
kind to which paragraph 1(m) of that Schedule applies undertaken in
relation thereto;
(n) "exemption certificate" means a certificate issued by the Board under section 14 of the
Industrial 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, made
between an employer and any other person or persons under which services
(including any incidental use of tools) of each person or persons or of
any other person or persons were rendered to the employer in his trade
or business;
(q) "the levy" means the levy imposed by the Board in respect of the
twenty-seventh levy period;
(r) "notice" means a notice in writing;
(s) "site employee" means an employee the activities of whose employment take place
wholly 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 of
Establishments) Order 1974[6]
;
(ii) the Industrial Training (Transfer of the Activities of
Establishments) (No. 2) Order 1974[7]
;
(iii) the Industrial Training (Transfer of the Activities of
Establishments) Order 1975[8]
;
(iv) the Industrial Training (Transfer of the Activities of
Establishments) (No. 2) Order 1975[9]
;
(v) the Industrial Training (Transfer of the Activities of
Establishments) Order 1976[10]
;
(vi) the Industrial Training (Transfer of the Activities of
Establishments) (No. 2) Order 1976[11]
;
(vii) the Industrial Training (Transfer of the Activities of
Establishments) Order 1977[12]
;
(viii) the Industrial Training (Transfer of the Activities of
Establishments) Order 1978[13]
;
(ix) the Industrial Training (Transfer of the Activities of
Establishments) (No. 2) Order 1978[14]
;
(x) the Industrial Training (Transfer of the Activities of
Establishments) (No. 3) Order 1978[15]
;
(xi) the Industrial Training (Transfer of the Activities of
Establishments) Order 1979[16]
;
(xii) the Industrial Training (Transfer of the Activities of
Establishments) Order 1980[17]
;
(xiii) the Industrial Training (Transfer of the Activities of
Establishments) (No. 2) Order 1980[18]
;
(xiv) the Industrial Training (Transfer of the Activities of
Establishments) (Order 1981[19]
; and
(xv) the Industrial Training (Transfer of the Activities of
Establishment) Order 1990[20]
.
(2) In reckoning the amount of emoluments for the purpose of this Order
no regard shall be had to the emoluments of any person—
(a) undergoing a course of training as a seagoing officer or rating
under an agreement in writing with an employer in the shipping industry,
or with any organisation of employers in that industry or with any
association of such organisations;
(b) employed by London Regional Transport or its subsidiaries wholly in
activities specified in paragraph 1(m) of Schedule 1 to the industrial
training order, not being design or drawing or the training of employees
or apprentices;
(c) engaged wholly in agriculture; or
(d) engaged wholly in the supply of food or drink for immediate
consumption.
(3) Any reference in this Order to an establishment that commences to
carry on business or that ceases to carry on business shall not be taken
to apply where the location of the establishment is changed but its
business is continued wholly or mainly at or from the new location,
or where the suspension of activities is of a temporary or seasonal
nature.
(4) In this Order an establishment shall be taken to be wholly or mainly
engaged in engineering activities or in engineering construction
activities if it is so engaged during the twenty-seventh base period for
a total of twenty-seven or more weeks, or, being an establishment that
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 in the
part of the said period commencing with the day on which business was
commenced and ending on the last day thereof.
(5) In this Order employees shall be taken to be wholly or mainly
engaged in or in connection with engineering activities or in or in
connection with engineering construction activities during any week in
the twenty-seventh base period in which they are so engaged if but only
if they are so engaged for more than half the total number of weeks in
which they are employed by the employer during the twenty-seventh base
period.
Imposition of the levy
3.—(1) Subject to the provisions of article 11 of this Order, the levy to
be imposed by the Board on employers in respect of the twenty-seventh
levy period shall be assessed in accordance with the provisions of this
article.
(2) The levy shall be assessed by the Board separately in respect of
each relevant establishment (that is to say, each engineering
establishment other than an establishment of an employer who is exempt
by 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 in
respect of which an exemption certificate has been issued to the
employer) but in agreement with the employer one assessment may be made
in respect of any number of establishments, in which case such
establishments shall be deemed for the purposes of that assessment to
constitute one establishment.
(3) The levy assessed in respect of an establishment wholly or mainly
engaged in engineering activities or in engineering construction
activities shall be the aggregate of—
(a) an amount equal to 1.5 per cent. of the sum of the emoluments of all
site employees employed in the twenty-seventh base period at or from the
establishment 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 all
employees other than site employees employed in the twenty-seventh base
period at or from the establishment by the employer; and
(c) an amount equal to the sum (if any) by which 2 per cent. of the
labour-only payments exceeds 2 per cent. of the labour-only receipts. In
this 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 for
incidental use of tools) made by the employer during the twenty-seventh
base period under the labour-only agreements for services rendered to
him 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 for
the incidental use of tools) received by the employer during the
twenty-seventh base period under the labour-only agreements for services
rendered by him or on his behalf in his trade or business carried out at
or from the establishment.
Exemption of charities
4. A charity shall be exempted from the levy.
Exemption of small employers
5. An employer shall be exempted from the levy in respect of any
establishment of his which is wholly or mainly engaged in engineering
activities or in engineering construction activities in respect of any
portion of the levy attributable to the emoluments of any employees of
his, other than site employees, who were wholly or mainly engaged in
engineering activities or in engineering construction activities where
the total number of such employees employed by him (including those
employed under any labour-only agreement) at or from any engineering
establishment or establishments of his engaged in engineering activities
or in engineering construction activities in the twenty-seventh base
period does not exceed 30.
Disapplication exemption certificate
6. An exemption certificate issued by the Board shall not exempt any
employer from—
(a) any portion of the levy which is to be assessed under article
3(3)(a) and (c) above, or
(b) that portion of the levy which is equal to 0.15 per cent. of the sum
of the emoluments upon which the levy is to be assessed under article
3(3)(b) above.
Assessment notices
7.—(1) The Board shall serve an assessment notice on every employer
assessed to the levy, but one notice may comprise two or more
assessments.
(2) The amount of any assessment payable under an assessment notice
shall be rounded down to the nearest £1.
(3) An assessment notice shall state the Board's address for the service
of a notice of appeal or of an application for an extension of time for
appealing.
(4) An assessment notice may be served on the person assessed to the
levy either by delivering it to him personally or by leaving it, or
sending it to him by post, at his last known address or place of
business in the United Kingdom, or if that person is a corporation, by
leaving it, or sending it by post to the corporation, at such address or
place of business or at its registered or principal office.
Payment of the levy
8.—(1) Subject to the following provisions of this Order, the amount of
each assessment appearing in an assessment notice served by the Board
(the date of which shall not be earlier than 31st August 1991) shall be
due and payable by the employer to the Board one month after the date of
the notice.
(2) The amount of an assessment shall not be recoverable by the Board
until there has expired the time allowed for appealing against the
assessment by article 10(1) of this Order and any further period or
periods of time that the Board or an industrial tribunal may have
allowed for appealing under paragraph (2) or (3) of that article or
where an appeal is brought, until the appeal is decided or withdrawn.
Withdrawal of assessment 9.—(1) The Board may, by a notice served on the person assessed to the levy
in the same manner as an assessment notice, withdraw an assessment if
that person has appealed against that assessment under the provisions of
article 10 of this Order and the appeal has not been entered in the
Register of Appeals kept under the appropriate Regulations specified in
paragraph (4) of that article.
(2) The withdrawal of an assessment shall be without prejudice to the
power of the Board to serve a further assessment notice in respect of
any establishment to which that assessment relates.
Appeals
10.—(1) A person assessed to the levy may appeal to an industrial tribunal
against the assessment within one month from the date of the service of
the assessment notice or within any further period or periods of time
that may be allowed by the Board or an industrial tribunal under the
following provisions of this article.
2 The Board by notice may for good cause allow a person assessed
to the levy to appeal to an industrial tribunal against the assessment
at any time within the period of four months from the date of the service
of the assessment notice or within such further period or periods
as the Board may allow before such time as may then be limited for
appealing has expired.
(3) If the Board shall not allow an application for extension of time
for appealing, an industrial tribunal shall upon application made to the
tribunal by the person assessed to the levy have the like powers as the
Board under the last foregoing paragraph.
(4) An appeal or an application to an industrial tribunal under this
article shall be made in accordance with the Industrial Tribunals
(England and Wales) Regulations 1965[21]
except where the establishment to which the relevant
assessment relates is wholly in Scotland in which case the appeal or
application shall be made in accordance with the Industrial Tribunals
(Scotland) Regulations 1965[22]
.
(5) The powers of an industrial tribunal under paragraph (3) of this
article 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.
Cessation of business
11.—(1) The provisions of this article shall apply in relation to an
establishment that ceases to carry on business in the twenty-seventh
levy period on or before 30th August 1991.
(2) The amount of the levy imposed in respect of the establishment shall
be in the same proportion to the amount that would otherwise be due
under the provisions of article 3 of this Order as the number of days
between the commencement of the twenty-seventh levy period and the date
of cessation of business (both dates inclusive) bears to the number of
days in the said levy period.
(3) Article 8(1) of this order shall have effect as if the words in
parenthesis were omitted.
Evidence
12.—(1) Upon the discharge by a person assessed to the levy of his liability
under an assessment the Board shall if so requested issue to him a
certificate to that effect.
(2) The production in any proceedings of a document purporting to be
certified by the Secretary of the Board or any other person, being a
member, officer or servant of the Board authorised to act in that
behalf, to be a true copy of an assessment or other notice issued by the
Board or purporting to be a certificate such as is mentioned in the
foregoing paragraph of this article shall, unless the contrary is
proved, be sufficient evidence of the document and of the facts stated
therein.
Signed by order of the Secretary of State.
Robert Jackson
Parliamentary Under Secretary of State, Department of Employment
This Order gives effect to proposals of the Engineering Industry
Training Board which were submitted to the Secretary of State. The
proposals are for the imposition of a levy on employers in the
engineering industry for the purpose of raising money towards meeting
the expenses of the Board.
The levy is to be imposed in respect of the twenty-seventh levy
period commencing on the day upon which this Order comes into force and
ending on 31st August 1991.
Subject to the exemptions in articles 4 and 5, the levy will be
assessed by the Board in accordance with article 3, and there will be a
right of appeal against an assessment to an industrial tribunal.
ISBN 0 11 014164 4
Notes:
[1] 1982 c. 10; sections 11 and 12 were amended by the
Employment Act 1989 (c. 38), Schedule 4, paragraphs 10 and 11
respectively. back