37.—(1) Subject to the conditions in paragraph (2), an agricultural worker and their employer may agree that the agricultural worker is to receive payment in lieu of a day of the agricultural worker’s annual leave entitlement.
(2) The conditions referred to in paragraph (1) are—
(a)the maximum number of days for which an agricultural worker can receive a payment in lieu of annual leave during any annual leave year is prescribed in the Table in Schedule 3;
(b)a written record is to be kept by the employer of any agreement that an agricultural worker will receive payment in lieu of a day’s annual leave for a minimum of 3 years commencing at the end of that annual leave year;
(c)in circumstances where the agricultural worker does not work on a day as agreed in accordance with paragraph (1), that day is to remain part of the agricultural worker’s annual leave entitlement;
(d)payment in lieu of annual leave is to be paid at a rate which comprises both the overtime rate specified in article 13 and holiday pay calculated in accordance with article 35 as if the day for which a payment in lieu of annual leave is made is a day on which the agricultural worker is taking annual leave.