Gangmasters (Licensing) Act 2004

The Gangmasters and Labour Abuse Authority

The Gangmasters Licensing Authority

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• (1) The body known as the Gangmasters Licensing Authority is to continue to exist and is to be known as the Gangmasters and Labour Abuse Authority (in this Act referred to as “ the Authority ”).

• (2) The functions of the Authority shall be—

• (a) to carry out the functions relating to licensing that are conferred on it by this Act,

• (b) to ensure the carrying out of such inspections as it considers necessary of persons holding licences under this Act,

• (c) to keep under review generally the activities of persons acting as gangmasters,

• (d) to supply information held by it to specified persons in accordance with the provisions of this Act,

• (e) to keep under review the operation of this Act, and

• (f) such other functions as may be prescribed in regulations made by the Secretary of State.

• (3) The Authority may do anything that it considers is calculated to facilitate, or is incidental or conducive to, the carrying out of any of its functions.

• (3A) When carrying out functions during a year to which a labour market enforcement strategy approved under section 2 of the Immigration Act 2016 relates, the Authority and its officers must carry out those functions in accordance with the strategy.

• (4) The Authority shall not be regarded—

• (a) as the servant or agent of the Crown, or

• (b) as enjoying any status, immunity or privilege of the Crown,

and the property of the Authority shall not be regarded as property of, or property held on behalf of, the Crown.

• (5) The Secretary of State may by regulations make provision as to—

• (a) the status and constitution of the Authority,

• (b) the appointment of its members,

• (c) the payment of remuneration and allowances to its members, and

• (d) such other matters in connection with its establishment and operation as he thinks fit.

• (6) Schedule 1 amends certain enactments in consequence of the establishment of the Authority.

Directions etc by the Secretary of State

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• (1) In carrying out its functions the Authority shall comply with any general or specific directions given to it in writing by the Secretary of State.

• (2) Before giving any such directions the Secretary of State shall consult the Authority and the Director of Labour Market Enforcement.

• (3) The Authority shall provide the Secretary of State with such information about its activities as he may request.

Scope of Act

Work to which this Act applies

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• (1) The work to which this Act applies is—

• (a) agricultural work,

• (b) gathering shellfish, and

• (c) processing or packaging—

• (i) any produce derived from agricultural work, or

• (ii) shellfish, fish or products derived from shellfish or fish.

This is subject to any provision made by regulations under subsection (5) below and to section 5 (territorial scope of application).

• (2) In subsection (1)(a) “agricultural work” means work in agriculture.

• (3) In this Act “agriculture” includes—

• (a) dairy-farming,

• (b) the production for the purposes of any trade, business or other undertaking (whether carried on for profit or not) of consumable produce,

• (c) the use of land as grazing, meadow or pasture land,

• (d) the use of land as an orchard or as osier land or woodland, and

• (e) the use of land for market gardens or nursery grounds.

In paragraph (b) “consumable produce” means produce grown for sale, consumption or other use after severance from the land on which it is grown.

• (4) In this Act “shellfish” means crustaceans and molluscs of any kind, and includes any part of a shellfish and any (or any part of any) brood, ware, halfware or spat of shellfish, and any spawn of shellfish, and the shell, or any part of the shell, of a shellfish.

• (5) The Secretary of State may by regulations make provision—

• (a) excluding work of a prescribed description from being work to which this Act applies;

• (b) including work of a prescribed description as being work to which this Act applies.

• (6) The Secretary of State must consult the Authority and the Director of Labour Market Enforcement before making regulations under subsection (5).

Acting as a gangmaster

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• (1) This section defines what is meant in this Act by a person acting as a gangmaster.

• (2) A person (“A”) acts as a gangmaster if he supplies a worker to do work to which this Act applies for another person (“B”).

• (3) For the purposes of subsection (2) it does not matter—

• (a) whether the worker works under a contract with A or is supplied to him by another person,

• (b) whether the worker is supplied directly under arrangements between A and B or indirectly under arrangements involving one or more intermediaries,

• (c) whether A supplies the worker himself or procures that the worker is supplied,

• (d) whether the work is done under the control of A, B or an intermediary,

• (e) whether the work done for B is for the purposes of a business carried on by him or in connection with services provided by him to another person.

• (4) A person (“A”) acts as a gangmaster if he uses a worker to do work to which this Act applies in connection with services provided by him to another person.

• (5) A person (“A”) acts as a gangmaster if he uses a worker to do any of the following work to which this Act applies for the purposes of a business carried on by him—

• (a) harvesting or otherwise gathering agricultural produce following—

• (i) a sale, assignment or lease of produce to A, or

• (ii) the making of any other agreement with A,

where the sale, assignment, lease or other agreement was entered into for the purpose of enabling the harvesting or gathering to take place;

• (b) gathering shellfish;

• (c) processing or packaging agricultural produce harvested or gathered as mentioned in paragraph (a).

In this subsection “agricultural produce” means any produce derived from agriculture.

• (6) For the purposes of subsection (4) or (5) A shall be treated as using a worker to do work to which this Act applies if he makes arrangements under which the worker does the work—

• (a) whether the worker works for A (or for another) or on his own account, and

• (b) whether or not he works under a contract (with A or another).

• (7) Regulations under section 3(5)(b) may provide for the application of subsections (5) and (6) above in relation to work that is work to which this Act applies by virtue of the regulations.

Territorial scope of application

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• (1) The work to which this Act applies is work—

• (a) in the United Kingdom,

• (b) on any portion of the shore or bed of the sea, or of an estuary or tidal river, adjacent to the United Kingdom, whether above or below (or partly above and partly below) the low water mark, or

• (c) in UK coastal waters.

• (2) In subsection (1)(c) “UK coastal waters” means waters adjacent to the United Kingdom to a distance of six miles measured from the baselines from which the breadth of the territorial sea is measured.

In this subsection “miles” means international nautical miles of 1,852 metres.

• (3) The provisions of this Act apply where a person acts as a gangmaster, whether in the United Kingdom or elsewhere, in relation to work to which this Act applies.

Licensing

Prohibition of unlicensed activities

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• (1) A person shall not act as a gangmaster except under the authority of a licence.

• (2) Regulations made by the Secretary of State may specify circumstances in which a licence is not required.

Grant of licence

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• (1) The Authority may grant a licence if it thinks fit.

• (2) A licence shall describe the activities authorised by it and shall be granted for such period as the Authority thinks fit.

• (3) A licence authorises activities—

• (a) by the holder of the licence, and

• (b) by persons employed or engaged by the holder of the licence who are named or otherwise specified in the licence.

• (4) In the case of a licence held otherwise than by an individual, the reference in subsection (3)(a) to activities by the holder of the licence shall be read as a reference only to such activities as are mentioned in whichever of the following provisions applies—

• section 20(2) (body corporate);

• section 21(2) (unincorporated association);

• section 22(4) (partnership that is regarded as a legal person under the law of the country or territory under which it is formed).

• (5) A licence shall be granted subject to such conditions as the Authority considers appropriate.

General power of Authority to make rules

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• (1) The Authority may with the approval of the Secretary of State make such rules as it thinks fit in connection with the licensing of persons acting as gangmasters.

• (2) The rules may, in particular—

• (a) prescribe the form and contents of applications for licences and other documents to be filed in connection with applications;

• (b) regulate the procedure to be followed in connection with applications and authorise the rectification of procedural irregularities;

• (c) prescribe time limits for doing anything required to be done in connection with an application and provide for the extension of any period so prescribed;

• (d) prescribe the requirements which must be met before a licence is granted;

• (e) provide for the manner in which the meeting of those requirements is to be verified;

• (f) allow for the grant of licences on a provisional basis before it is determined whether the requirements for the grant of a licence are met and for the withdrawal of such licences (if appropriate) if it appears that those requirements are not met;

• (g) prescribe the form of licences and the information to be contained in them;

• (h) require the payment of such fees as may be prescribed or determined in accordance with the rules;

• (i) provide that licences are to be granted subject to conditions requiring the licence holder—

• (i) to produce, in prescribed circumstances, evidence in a prescribed form of his being licensed, and

• (ii) to comply with any prescribed requirements relating to the recruitment, use and supply of workers.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) In subsection (2) “prescribed” means prescribed by the rules.

Modification, revocation or transfer of licence

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• (1) The Authority may by notice in writing to the licensee modify or revoke any licence granted to him (including any of the conditions of that licence)—

• (a) with the consent of the licensee, or

• (b) where it appears to him that a condition of the licence or any requirement of this Act has not been complied with.

• (2) The modifications that may be made include one suspending the effect of the licence for such period as the Authority may determine.

• (3) A licence may be transferred with the written consent of the Authority and in such other cases as may be determined by the Authority.

Appeals

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• (1) The Secretary of State shall by regulations make provision for an appeal against any decision of the Authority—

• (a) to refuse an application for a licence,

• (b) as to the conditions to which the grant of the licence is subject,

• (c) to refuse consent to the transfer of a licence, or

• (d) to modify or revoke a licence.

• (2) The regulations shall make provision—

• (a) for and in connection with the appointment of a person to hear and determine such appeals (including provision for the payment of remuneration and allowances to such a person), and

• (b) as to the procedure to be followed in connection with an appeal.

Register of licences

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• (1) The Authority shall establish and maintain a register of persons licensed under this Act.

• (2) The register shall contain such particulars as the Authority may determine of every person who for the time being holds a licence or whose activities are authorised by a licence (whether or not they are named in the licence).

• (3) The Authority shall ensure that appropriate arrangements are in force for allowing members of the public to inspect the contents of the register.

Offences

Offences: acting as a gangmaster, being in possession of false documents etc

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• (1) A person commits an offence if he acts as a gangmaster in contravention of section 6 (prohibition of unlicensed activities).

For this purpose a person acting as a gangmaster does not contravene section 6 by reason only of the fact that he breaches a condition of the licence which authorises him to so act.

• (2) A person commits an offence if he has in his possession or under his control—

• (a) a relevant document that is false and that he knows or believes to be false,

• (b) a relevant document that was improperly obtained and that he knows or believes to have been improperly obtained, or

• (c) a relevant document that relates to someone else,

with the intention of inducing another person to believe that he or another person acting as a gangmaster in contravention of section 6 is acting under the authority of a licence.

• (3) A person guilty of an offence under subsection (1) or (2) is liable on summary conviction—

• (a) in England and Wales, to imprisonment for a term not exceeding twelve months, or to a fine not exceeding the statutory maximum, or to both;

• (b) in Scotland or Northern Ireland, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum, or to both.

In relation to an offence committed before 2 May 2022, for "the general limit in a magistrates’ court" in paragraph (a) substitute “ six months ”.

• (4) A person guilty of an offence under subsection (1) or (2) is liable on conviction on indictment to imprisonment for a term not exceeding ten years, or to a fine, or to both.

• (5) For the purposes of this section—

• (a) except in Scotland, a document is false only if it is false within the meaning of Part 1 of the Forgery and Counterfeiting Act 1981 (c. 45) (see section 9(1) of that Act), and

• (b) a document was improperly obtained if false information was provided, in or in connection with the application for its issue or an application for its modification, to the person who issued it or (as the case may be) to a person entitled to modify it,

and references to the making of a false document include references to the modification of a document so that it becomes false.

• (6) In this section “relevant document” means—

• (a) a licence, or

• (b) any document issued by the Authority in connection with a licence.

Offences: entering into arrangements with gangmasters

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• (1) A person commits an offence if—

• (a) he enters into arrangements under which a person (“the gangmaster”) supplies him with workers or services, and

• (b) the gangmaster in supplying the workers or services contravenes section 6 (prohibition of unlicensed activities).

• (2) In proceedings against a person for an offence under subsection (1) it is a defence for him to prove that he—

• (a) took all reasonable steps to satisfy himself that the gangmaster was acting under the authority of a valid licence, and

• (b) did not know, and had no reasonable grounds for suspecting that the gangmaster was not the holder of a valid licence.

• (3) The Secretary of State may by regulations make provision as to what constitutes “reasonable steps” for the purposes of subsection (2)(a).

• (4) A person guilty of an offence under subsection (1) is liable—

• (a) on summary conviction in England and Wales, to imprisonment for a term not exceeding 51 weeks, or to a fine not exceeding the statutory maximum, or to both,

• (b) on summary conviction in Scotland or Northern Ireland, to imprisonment for a term not exceeding six months, or to a fine not exceeding the statutory maximum, or to both.

In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003 (c. 44), for “51 weeks” in paragraph (a) substitute “ six months ”.

Offences: supplementary provisions

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• (1) An enforcement officer (see section 15) has the powers of arrest mentioned in subsection (2) (in addition to powers under section 24A of the Police and Criminal Evidence Act 1984 (c. 60)) in relation to any of the following offences—

• (a) an offence under section 12(1) or (2),

• (b) conspiring to commit any such offence,

• (c) attempting to commit any such offence,

• (d) inciting, aiding, abetting, counselling or procuring the commission of any such offence.

• (2) Those powers are as follows—

• (a) if he has reasonable grounds for suspecting that such an offence has been committed, he may arrest without warrant anyone whom he has reasonable grounds for suspecting to be guilty of the offence;

• (b) he may arrest without warrant—

• (i) anyone who is about to commit such an offence;

• (ii) anyone whom he has reasonable grounds for suspecting to be about to commit such an offence.

• (2A) Subsections (1) and (2) do not apply to an enforcement officer who is acting for the purposes of this Act in relation to England and Wales if the officer is a labour abuse prevention officer within the meaning of section 114B of the Police and Criminal Evidence Act 1984 (PACE powers for labour abuse prevention officers).

• (3) Subsections (1) and (2) do not apply in Scotland.