A Purposive Interpretation of the National Minimum Wage Act
| Published date | 01 July 2009 |
| Date | 01 July 2009 |
| Author | Guy Davidov |
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00758.x |
A Purposive Interpretation of the National Minimum
Wa g e Ac t
Guy Davidov
n
This article uses a purposive method of interpretation to suggest solutions to various questions
raised in the application of the National MinimumWageAct (NMWA).The article ¢rst considers
the goals of minimum wage laws (and the NMWA in particular) by putting forward the justi¢-
cations for such lawsand addressing critiques. It is argued that the minimum wageis best u nder-
stood as a mechanism for redistribution of resources and ensuring respect for the human dignity
of workers. Building on this articulation of goals, the article then proceeds to consider which
group of workers are included within the scope of the NMWA (interpreting terms such as
‘worker’,‘voluntary workers’, apprentices and trainees); what are considered working hours for
the purpose of the Act (focusing on case s of work/sleepcombinations); and what constitutes part
of the wage (focusing on tips, attendance allowances and deductions for accommodations).
INTRODUCTION
A decadehas passed since the National MinimumWage Act1998 (NMWA) came
into force, and during this time a number of di⁄cult interpretive questions have
been put before the courts, with crucial implications for the workersand employ-
ers involved.Whoare the ‘workers’ included within the scopeof the Act? Who are
the‘voluntary workers’excludedfrom protection? Areworkers entitledto a mini-
mum wage with respect to hours of being ‘on call’? Are ‘tips’ paid by clients con-
sidered part of the‘wage’for minimum wagepur poses?The se are just some of the
questions raised so far. This article o¡ers a coherent approach for addressing such
questions, based on a purposive construction ^ the idea that terms in legislation
should be given a meaning that will best advance the goals of the legislation.
While the purposive method of interpretation is usually associated with Eur-
opean law, the basic ideais similar to the English‘mischief rule’, ie the understand-
ing that laws should be interpreted in light of the mischief they seek to cure.
1
There are di¡erences between the European and English approaches in terms of
the willingness to o¡erinterpretation that contradicts the literal meaning of a legis-
lated term; but suggestions put forward beloware limited to interpretations that
are in accord with the words of the Act. In this respect the purposive approach
does not appear to be controversial.There is growing agreement in recent years
n
Faculty of Law, Hebrew University of Jerusalem (email:guy.davidov@huji.ac.i l). Many thanks to
Einat Albin, Nicola Countouris,Simon Deak in,Daniel G ottlieb, Bruce Kaufman and participants at
the Oxford LabourLaw Discussion Group for helpful commentso n an earlierdraft.
1SeeegRvSecretaryof Statefor the Environment, Ex ParteSpath Holme Limited[20 00] UKHL 61; [2001]
1Al l ER 195(opinion of Lord Nicholls).
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(4) 581^606
that a piece of legislation should be interpreted in light of its purpose,
2
with many
examplesof courts and tribunals performing such interpretation in the labour law
context.
3
Admittedly, there may be disagreement about the way such interpretation
should be performed in practice. This article uses a particular form of purposive
interpretation, which accords l ittle weightto subjective intentions of Members of
Parliament or the Government, instead putting emphasis on justi¢cations that best
explain the legislation and support it.
4
Statements of legislative intent could be
useful, but only to th e extent they provide normative justi¢cations to support
the legislation. The goal of this article is not to justify this (albeit controversial)
method of interpretation but to take it as a starting point and use it for interpret-
ing the NMWA. However, this exercise could also demonstrate the usefulness of
purposive construction and therefore provide support for this method.
The article begins by considering the goals of minimum wage laws, and the
purposes of theUK Act in particular. After rejecting some common articulations
of the purposeof minimum wagelaws, it is arguedthat these laws arebest under-
stood as tools for redistributing resources and ensuring respect for humandignity.
The article then proceeds to discuss the main interpretive questions raised by the
Act, o¡ering solutions that best advance the Act’s goals. First I consider which
group of workers are included within the scope of the Act, by discussing the inter-
pretation of the term‘worker’ as well as the concept of ‘voluntary workers’and the
statusof apprenticesand trainees. I then discusswhat are consideredto be working
hours for the purpose of the NMWA, in particular by analysing cases of work/
sleep combinations and other‘oncall’situations. Finally, the article considers what
constitutespart of a wage, focusing on theissues of tips and attendance allowances
(the circumstances in which they are counted towards the minimum wage) and
deductions for accommodations (the extent to which they are allowed). Through-
out the article, some di⁄cult scenarios from the case laware analysed as examples
of the importance and usefulness of a purposive i nterpretation of the Act.
2SeeegJo nes vSecretaryof State forSocial Services[1972] 2 WLR 210, [19 72] 1Al l ER145; RvSecretary
of Statefor Health [2003] UKHL13, [2003]2 All ER 113. And see F. A. R.Be nnion, Statutory Inter-
pretation:A Code (London: Butterworths,3
rd
ed,1997)731^733; J.Bell a ndG. Engle, Cross:Statutory
Interpretation (London: Butterworths, 1995) 56^58, 192^193; I. McLeod, ‘Literal and Purposive
Techniques of Legislative Interpretation: Some European Community and English Common
Law Perspectives’(20 04)29 Brook J Int L 1109.
3SeeegAdi (UK ) Limited vFirmSecurity Group Limited [2001] EWCA Civ 971, [2001] IRLR 542;
AllonbyvAccrington& RossendaleCollege[2001]EWCACiv 529, [2001] ICR 1189; BedfordshirePolicev
Liversidge[2002] EWCACiv 894,[2002] ICR 1135; Relaxion GroupPlc vRhys-Harper[2003] UKHL
0234_03_0806; Percy vChurchof Scotland Boardof NationalMission [2005] UK HL 73, [2006] 2 WLR
353; Majrowsk i vGuy’s & StThomas’s NHS Trust [2005] ICR 977, [2005]QB 848 (opin ion of Scott
4 See generally R. Dworkin,Law’sEmpire (Cambridge,Mass: Harvard UP, 1986)66^67,313^317; H.
M. Hart, Jr and A. M. Sacks,The Legal Process: Basic Problems in the Making and Application of Law
(Westbury, NY: FoundationPress, 19 94)1374, 1380;and especial lyA. Barak,PurposiveInterpretation
in Law (Princeton, NJ:Pri ncetonUP,20 05).
A Purposive Interpretation of the National MinimumWage Act
582 r2009 The Author.Journal Compilation r20 09 The ModernLaw Review Limited.
(2009) 72(4) 581^606
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