Agricultural Advisory Panel meeting: 21 November 2023

Chair – Dr Nerys Llewelyn Jones
Independents – Steve Hughson, Janatha Stout
NFU Cymru – Simon Davies
FUW – Darren Williams
Unite – Ivan Monckton, Jo Galazka
Legal Adviser – Helen Snow (Geldards)
Welsh Government – Ryan Davies, Dave Thomas, Dan Ricketts (Secretariat)

The chair welcomed everyone to the meeting. Jo Galazka from Unite the Union could only attend for the first 30 minutes due to other commitments, so the running order of the agenda was amended appropriately.

Nerys Llewelyn Jones and Helen Snow took part in an employer-focused webinar last week (w/c 13 November) which was arranged by Farming Connect as part of the work being undertaken to raise the awareness of the work of the Panel. Cynnal Cymru also participated as guest speakers giving details on how to voluntarily sign up as a Real Living Wage employer. An employee-focused event will take place on 6 February 2024.

Nerys Llewelyn Jones has been invited to attend the Lantra pre-Winter Fair Dinner on Sunday night (26^th) – this is linked to the work being undertaken by the Panel’s sub-committee on Skills Development and Training.

Agricultural Wages Order Consultation

One response to the consultation had been received. A number of very specific points were raised within the response and Nerys Llewelyn Jones stated it was important they are considered.

Helen Snow gave her views on the response:

• Age Bands – there is a specific exemption within the National Minimum Wage Act 1998 and the Equality Act 2010 allowing employers to pay less than the National Living Wage to younger workers as long as they are paid at least the National Minimum Wage for their age. Therefore, the Panel’s proposals for minimum pay rates within the 2024 Order are lawful.

Helen Snow would provide the Panel with written legal advice regarding the differentials in pay for the age bands within the Agricultural Wages Order and the exemptions in the National Minimum Wage Act 1998 and the Equality Act 2010 if the National Living Wage band does not decrease to 21+ years in the UK Government’s Autumn Statement.

UPDATE – it was announced by the UK Government on 22 November that the National Living Wage will now apply to those aged 21 years+

• The consultation response raises a valid point regarding the calculation of holiday entitlement for part-year and irregular hours workers. The UK Government published The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 after the consultation opened which, in effect, amends the Working Time Regulations. One of the simplification areas the Panel may wish to consider would be to update the relevant provisions of the Order accordingly referring to the Working Time Regulations.

ACTION POINT 1 – Helen Snow to amend the provisions of the 2024 Order affected by The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023. 

ACTION POINT 2 – Helen Snow to circulate the amended draft Order by email to Panel members for comment and approval.

Jo Galazka stated that Unite would be giving a written response to the points made around the Equality Act. The consultation response was very self-interested and was more about keeping labour costs low. 

The Panel expressed their disappointment at only receiving one response to the consultation. Nerys Llewelyn Jones stated more engagement between the Panel and the sector was required. The Farming Connect awareness project will help but further work needs to be undertaken.

David Thomas explained that Rural Payments Wales had been approached on a number of occasions to have the consultation promoted over the RPW Online system as a broadcast message to all farmers with a Customer Reference Number. Unfortunately, they were not co-operative and stated the consultation was not a priority as there were deadlines approaching for farming schemes. It was also important the Panel made use of their own networks to share the information.

Ivan Monckton stated the proposed pay rates for 2024 were less contentious this year than in previous years as they had been unanimously approved by the Panel. However, the best way to publicise the consultation was via an advert in the printed farming press rather than just online – although it was recognised there is a cost element involved.

Simon Davies said the consultation was online on the NFU Cymru website although Darren Williams said it was not able to publish it within FUW publications due to publishing dates although in previous years they have still not had many responses. There are also many other things preoccupying farmers at present. 

Regulatory Impact Assessment for Agricultural Wages Order 2024

Advice is currently with the Minister recommending a model run of the Real Living Wage is included / added into the Regulatory Impact Assessment for the 2024 Order as discussed in previous meetings.

The Panel agreed the Agricultural Wages 2024 will carry on as per the proposals set out within the consultation document subject to amendments to the Working Time Regulations as discussed.

Panel Review: aims and evaluations areas

This has not moved on as quickly as was hoped – it has been difficult to obtain clearances mainly due to the well-known financial situation within Welsh Government at present. A final specification is drawn up and has been distributed to Panel members before the meeting. It has been amended from previous drafts after previous discussions with the Panel and with Welsh Government statistical and research colleagues.

ACTION POINT 3 – Panel members to raise any comments or issues with the Panel Review specification by 30 November 2023.

Welsh Government officials are still suggesting an independent external review is undertaken at an estimated cost of £15,000 - £25,000. However, due to budgetary constraints the advice to the Minister will include options to push the review to the next financial year or it is undertaken “in-house”. Neither will be recommended options. 

If the review is to be undertaken internally by Welsh Government the aims and evaluations will still apply but it would not necessarily be a review on performance and would likely concentrate more on whether the Panel, as it sits within the structure, fit for purpose.

Ivan Monckton stated this is the first review that would have been undertaken since the Panel was established and it is imperative that it is undertaken independently. If it has to be done by Welsh Government it should at least be independent from the Policy team. 

Nerys Llewelyn Jones stated that if the review was to be undertaken it had to be done properly and if this was not possible then it should be postponed until a later date. 

Panel member recruitment and clarification of eight year rule

Ryan Davies gave the Panel an update on the recruitment process for a new independent member from April 2024. The vacancy will be published shortly after clearances have been received from the Minister. Again, there is a significant cost implication however the recruitment is required by legislation so the money will need to be allocated.

He also confirmed that, following on from the discussion at the last meeting, Welsh Government asked for legal advice. Section 7(6)(a) of the Establishment Order 2016 states:

“No person may be a member of the panel for more than eight years, whether that period is continuous or not”. 

There is no distinction between the Independent or Representative members so this would apply to all. As a result, the Farmers Union of Wales and Unite the Union would be required to find new representative members from 1 April 2024.                                                             

Ivan Monckton stated he has had a conversation with Mick Antoniw MS (Counsel General) who was the instigator of the Panel. The suggestion was made for both Unite and the FUW to contact him about the situation raising their concerns. Both organisations said they would find it difficult to replace the current representatives.

Nerys Llewelyn Jones made a suggestion for the Unions to collectively prepare a paper outlining the case for an amendment to the Establishment Order 2016 which can be discussed at the next meeting.

ACTION POINT 4 – FUW, NFU Cymru and Unite the Union to draft a paper outlining the case for an amendment to the Establishment Order 2016 regarding the tenures of union representatives on the Panel. 

ACTION POINT 5 – Secretariat to send a letter to the Panel members approaching the 8 year deadline informing them of the situation and asking for information regarding successors.

Final AAP Report 2022/2023

The final document had been circulated to Panel members prior to the meeting. A slight amendment was made to Annex 2 of the document, but no other changes were suggested.

ACTION POINT 6 – Dan Ricketts to send AAP Report 2022/23 for publication on the AAP Pages of the Welsh Government website.

ACTION POINT 7 – Dan Ricketts to notify all panel members once the report has been published.

Dave Thomas provided an update for the Panel. Advice has gone to the Minister. The Chair had also attended a meeting with Victoria Jones (Head of Agriculture, Sustainable Development Division within Welsh Government) and Neil Paull from the Welsh Government Knowledge & Analytical Services (KAS).

As had been discussed earlier, the recommendation to the Minister was that the Regulatory Impact Assessment for the next Wages Order would include an initial modelling of the Real Living Wage as well as the minimum pay rates as proposed by the Panel. This would give an initial quantitative view of any potential impacts. The model used would be the same one as in previous years regarding the impacts of the Wages Order.

It had also been recommended once the results of the modelling are known the Panel could look at a Call for Evidence for more qualitative evidence.

Further discussions have been held with KAS with regard to trying to overcome the ongoing data issues. The outcome of these was that without a lot of resource and money the data issues could not be resolved in the near future. KAS are also going to undertake some work on a paper around the considerations the Minister and the Panel need to be aware of – political, economic and social. This would then be an initial summary of the feasibility.

Nerys Llewelyn Jones stated the budgetary constraints would limit what could be done. The important thing for the Panel was they were highlighting the concerns and the things that should be happening in terms of the data issues.

ACTION POINT 8 – Secretariat to invite Neil Paull from Welsh Government Knowledge & Analytical Services (KAS) to attend the next meeting of the AAP to talk to the Panel with regards to the Feasibility Study.

Helen Snow gave an overview of a paper regarding overtime within the Agricultural Wages Order which had been distributed to Panel members prior to the meeting. A question for the Panel was whether they should give consideration to the simplification of the definition of overtime within the Order in order to make it easier for employers and agricultural workers to understand when the overtime rate starts.

There are currently two separate provisions for overtime depending on when a workers agreement with an employer started. There is also potential confusion for those workers who have contracted hours of less (or more) than 8 hours per day.

In terms of simplification, the Panel may wish to consider only having one definition of overtime and, if so, what that definition would be.

Nerys Llewelyn Jones stated this potentially needs to be addressed within the 2025 Order and is more of a policy decision for the Panel than a legal point of view. Ideally this should be worked through over the next six months before the work starts properly on the next Order.

Ivan Monckton suggested this item was put on the agenda for the next meeting after both NFU / FUW and Unite have discussed the matter with their officials.

ACTION POINT 9 – Panel members to consider potential ways of simplifying the overtime provisions within the Order – to be discussed at the next meeting.

An event was hosted by Lantra in Builth Wells which was very well attended and enabled Nerys Llewelyn Jones to highlight the Call for Evidence from the sub-committee’s point of view and also to listen in to discussions taking place by other stakeholders about skills development and training.

The Call for Evidence document now needs to be finalised before publication.

Janatha Stout agreed it was a very good and extremely useful event and the Chair’s presentation had raised the profile of the sub-committee.

The Panel approved the minutes without amendment.

Actions that had not been completed were discussed.

ACTION POINT 10 – Dave Thomas to distribute the final specification of the Agricultural Wages Order Regulatory Impact Assessment to Panel members.

ACTION POINT 11 - All Panel members to consider what they would like to see on the AAP Pages of the Welsh Government website to be discussed at the next meeting.

Flexible working/jobshare

A paper had been distributed to Panel members on this subject but only just before the meeting. 

The Panel felt that, on initial review, extra details would be useful regarding the legal considerations / statutory grounds and also to expand the jobshare aspect (including a possible example – especially in the livestock sector) of the paper. It was agreed to postpone the discussion until the next meeting.

ACTION POINT 12 - Helen Snow to update the paper regarding flexible working / jobshare etc within the agricultural sector for discussion at the next meeting.

ACTION POINT 13 – Dan Ricketts to include the details and “best practice” around flexible working and jobshare into the guidance document which accompanies the Order.

A draft calendar of meetings for 2024 will be distributed to Panel members.

The Chair then closed the meeting.