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Clause 8—(Effect And Enforcement Of Wages Regulation Orders)

Volume 388: debated on Thursday 1 April 1943

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I beg to move, in page 7, line 11, after "employer," to insert "wilfully."

This raises a point with which probably the Solicitor-General would wish to deal. There is a difference between inadvertent failure to do something and deliberate failure. It may be that these words do not carry any significance. It is difficult for those who are not trained in the law to appreciate the significance of words inserted in a Clause, but there is all the difference in the world between a deliberate act and an inadvertent act, and I hope that the Solicitor-General will be able to satisfy me that the proposed addition of the word "wilfully" is unnecessary. I wish to make it clear that penalties should follow only where there are deliberate acts.

I want to make it absolutely clear to my hon. Friend that we could not accept the Amendment, not because of any question of drafting but because of the most serious considerations arising from all the industrial legislation of the past century. It is, in our view, essential that this should be an absolute duty on the part of the employer and that failure to carry out the duty should be the subject of penal sanctions. The most obvious case of industrial legislation is the case of the Factory Acts. There, the obligations with regard to machinery or dangerous trades are absolute obligations, and the same applies to many of the regulations under the Coal Mines Acts. That has been essential. I cannot imagine anything that has been of greater value to the worker in industry, than that these have been absolute liabilities. It has been impossible for any employer to say, "This was an inadvertence, I really intended the conditions to be as good as possible but there has been some slight omission." Once we have the view that it is essential—whether they are eventually called minimum wages or statutory wages—that the provision should be obeyed, then it is essential that there should be this absolute liability upon the employer. There is exactly the same protection for the employer as that given under the Factory Acts. As far as criminal prosecution is concerned, he can come before the court and prove—the onus being upon him—that it was not his fault but the fault of the manager or some agent. This has been found to be quite good in the corresponding Sections of the Factory Acts, but I must make it clear to my hon. Friend that it is a point of policy. We believe absolute liability to be essential and must insist upon it.

I appreciate the point which the learned Solicitor-General has made but the analogy of the Factory Acts is not too good. A factory is generally a large establishment where the employer is, in fact, the managing director, who is there all the time and has a general supervision. In big institutions with which I am not connected, multiple shop institutions, the employers may consist of a board of directors sitting at some central office in London. There may be a case of 500 catering establishments up and down the country and the failure to pay the required wages may be something of which the board of directors have no knowledge, the person who has failed being the manager of the local cafe. There are plenty of cases where there are 100 or more separate catering establishments scattered over wide areas, and the person to be prosecuted will be the person who is innocent of any offence. He will be dragged into court and the penalty will fall upon innocent Mr. "A," while guilty Mr. "B" will not be penalised at all. I think there ought to be some safeguard that those who have in one sense ultimate responsibility should not be penalised for the action of an agent. In other words, the prosecution ought to be directed against the defendant

It is the provision by which an employer in the position mentioned by my hon. Friend, can pass on the prosecution to his agent.

In other words, you pass on an unpleasant obligation. If I have a summons served on me, it puts me under the unpleasant obligation of saying to another person in my employment "You have to answer this charge." In some cases where an employer is actually to blame, an employee, under duress, might take the blame for what was, in fact, his employer's action. The person who has committed the crime ought to be the person charged in the first place. I am not satisfied that Clause 11 (2)—which I admit I had not read until this moment—is the real answer to the Amendment and I hope the Solicitor-General will re-examine the whole problem.

The obligation should be on the employer. We know that in some shops to-day if an assistant inadvertently places the wrong ticket on an article for sale, the employer is prosecuted. I have seen it happen when fruit has been marked "British" instead of "Empire." Under trade boards, there is an obligation to pay the proper rate and prosecution follows if the proper rate is not paid. Why should we insert the word "wilfully" because this happens to be the catering industry, when that word does not apply to other occupations in the country?

The general rule in criminal practice, as I understand it, is that no one ought to be punished for any contravention of a Statute unless that contravention is wilful, but for certain reasons, which arise particularly in wartime, we have instances where the mere fact that there is contravention is sufficient. Such cases may be justified on exceptional grounds, but it does not seem to me that in a Statute that will be a peace-time rather than a war-time Measure, we should extend the undesirable practice of making an innocent contravention punishable by fine. There are cases where, for the benefit of the public, an employer may be punished for something he knows nothing about. Take, for instance, the licensing statutes in Scotland, and the case of a servant who serves a drink on a Sunday to somebody whom he believes to be a bona fide traveller but who is not such a traveller. Although in many cases the employer has given strict orders to his servant as to his course of conduct when dealing with visitors on Sundays, that is no protection. The overriding consideration is that the public interest demands that persons who are not bona fide travellers shall not be served and in order to secure this public interest, this stringent necessity is imposed on the hotel people. While no one will suggest that payment of wages is not a matter of first-class importance it seems to me—and I support the Amendment from this point of view—that all sorts of hardships may arise. You will have people flocking to the courts and presiding judges with different ideas about appropriate sentences. The word "wilful" ought to be inserted. I do not think the worker would lose any protection by it.

Is it not a fact that ignorance of the law is no technical or legal excuse for breaking it?

That ignorance would be no excuse, and that absence of wilfulness would be no excuse, as the Bill stands, is the policy for which I stand. I have mentioned the Factory Acts and the Coal Mines Acts. The same policy is shown in the Trade Board Act and the Road Haulage Act. I would like to tell my hon. Friend the Member for South Croydon (Sir H. Williams), who is desirous of knowing whether these things are effective or not, that of the two provisions I mentioned one has been in operation under the Factory Acts for a long time. Exactly the same position arises there, because an undertaking may be a long way from headquarters. A similar position exists under the Food and Drugs Act under which, as my hon. Friend will know if he has had any experience as a lay magistrate, or has seen them at work, there have been milk prosecutions. This is not a new-fangled idea; it is a protection which has been found to work fairly and a principle for which we stand.

In view of the Solicitor-General's explanation, I will not press the matter further.

Amendment, by leave, withdrawn.

Amendment made: In page 7, line 23, at the end, insert:

"on the employer or any other person charged as the actual offender having been found guilty of the offence."—[Mr. Bevin.]

I beg to move, in page 7, line 25, to leave out "two years" and to insert "twelve months."

Under the Bill as it is drafted, contraventions which go back for two years can be taken into account in dealing with an employer in a court of law if he does not pay proper wages and I am proposing that one year should be sufficient. The effect of the two-year proposal will be that the prosecution might put a case before a lay bench, which might or might not be well informed, and might thus secure a conviction which, owing to weakness of evidence, they would not otherwise be successful in securing. I think the Bill as it stands is sufficiently severe on an employer who, quite possibly, did not wilfully infringe the obligations under the statutory minimum wage provisions and I hope the Minister or the Solicitor-General will consider whether one year is not sufficient in taking into consideration contraventions under this particular Sub-section.

Parliament has always regarded two years as being a reasonable period in cases of this sort. It is two years in the Trade Boards Act, the Road Haulage Wages Act, and the Agricultural Wages Act, and I suggest that it should remain the same in this Measure.

Amendment, by leave, withdrawn.

I beg to move, in page 7, line 34, at the end, to insert:

"but where a worker has sought to recover under this subsection any sum for remuneration from an employer against whom proceedings are brought under the last preceding subsection in respect of such an offence as aforesaid he shall not be entitled to claim by civil proceedings against that employer any sum for remuneration in respect of any period preceding the date of such offence."
The Bill gives a new right to the worker for recovery of wages. I think it is only logical that he should make up his mind whether to proceed under the Act or at common law, if a civil remedy is open to him. It is certainly not the intention of my hon. Friends and myself that the workman should be deprived of any remedy for the recovery of wages, but rather that he should take one remedy and that, if he fails, he should not be able to take the other.

If underpayment has accrued, say, for six years, is there any reason why the worker should be entirely deprived of any remedy for the four years' underpayment? I am afraid it is a matter which appeals to one's sense of equity, and, if the thing has been going on and it has not been found out before six years, and then the prosecution can only go back for two years, it seems extraordinary that the workman should lose his right to claim for back pay. In the vast majority of cases the prosecution would not be brought by the worker personally. I do not think it is within the experience of many of us that workers rush to prosecute their employers. It would be done by the machinery provided by the Act, and that is an additional reason why the worker who has been underpaid for six years should not lose his right to take civil proceedings.

Amendment, by leave, withdrawn.

I beg to move, in page 7, line 38, after "by," to insert "age."

This Sub-section reads:
"If as respects any worker employed or desiring to be employed in such circumstances that a wages Regulation Order applies or will apply to him the Wages Board is satisfied that he is affected by infirmity or physical incapacity which renders him incapable of earning the statutory remuneration."
And it goes on to authorise his employment at less than the established minimum wage. At present, when there is such a great shortage of labour, a considerable number of old people are engaged in this trade at fairly good wages in spite of their age. After the war this may not occur. Take the case of an old "boots" in a hotel, perhaps 73 or 74 years old, whom everyone likes and who is kept on possibly not at full wages, but at as much as they can reasonably afford. I believe that man, if perfectly healthy and not in the least infirm, and if he is not physically incapable and can see, hear, walk, and use his hands, could not be employed at less than the minimum wage, and as some employers would not be well enough off to pay him full wages, he would be dismissed. I think the difficulty would be overcome by the insertion of this word "age."

I do not think that would be desirable. I do not think you want the idea that people in receipt of the old age pension, because they are old, should therefore be employed at a lower rate of wages. Infirmity or physical incapacity may render a man incapable of earning the statutory minimum, and it is of course possible that age would be perhaps a large contributing factor to the infirmity or physical incapacity, and in that case it would come in, but we must keep age alone out of being considered as a reason why people should be employed at a lower rate of wages.

I think my hon. Friend has given a fairly satisfactory answer, but would it not be possible to make it permissive, because one can imagine cases where it would be desirable in the interests of both employer and employed to authorise the employment at lower remuneration?

I do not think that the Parliamentary Secretary has met the point, and inadvertently he has misled himself and the Committee, because he implied that infirmity or physical incapacity was affected by age, but all these words are qualified by the further words which are the significant words

"which renders him incapable of earning the statutory remuneration."
Age only comes in if that further qualification is fulfilled, and the wages board have to be satisfied. We have only to visualise what will happen some 20 years hence when the number of old age pensioners will be nearly doubled and the number of people of ordinary working age is fewer. This country can only survive in 25 or 30 years' time if people continue working to a much higher age. We want to do all we can to encourage old people whose reason for not being able to earn the full amount is that they are slower. Their minds are all right, and they are not physically incapable, but it takes them longer to do their job and their output is less. I do not want them thrown on the scrap heap because they are old, rather slow and cannot put in a full day's work. We have to bear in mind that the wages board has to be satisfied that age renders a person incapable of earning the statutory remuneration. If the Amendment is accepted, the employment of many tens of thousands of people after the war will be preserved. If it is not, that employment will be definitely destroyed.

The hon. Member for South Croydon (Sir H. Williams) is very plausible, but he must remember that if this Amendment were accepted, it would destroy the Bill to a large extent. It would mean that after the war any old age pensioner and old person could be employed at a much lower rate of wages. In practice, if there is an old man who has been a "boots" or something of that sort I have no doubt that his age would be taken into consideration and he would be covered by the Clause. If the Amendment were accepted, it would lead to the one thing we want to prevent. That is the employment of old age pensioners, and that would destroy the effect of the Bill.

The hon. and gallant Gentleman has in effect supported my argument. The Clause says nothing about old age pensioners. A man may have an old age pension of £100 a week, but if he is not very fast the hon. and gallant Member says that he wants to employ him because he is old. I say that such a man should have the opportunity of getting employment. The hon. and gallant Gentleman because he does not understand the Clause would deprive him of that opportunity.

I have understood the Government's point of view on most of the Amendments, although I have not agreed with them, but I do not think they have made a case out against this Amendment. As my hon. Friend the Member for South Croydon (Sir H. Williams) has pointed out, these words are governed by what comes later:

"which renders him incapable of earning the statutory remuneration."
Moreover, the wages board will have to be satisfied that the worker is incapable of earning a statutory remuneration because of age, if the Amendment is carried. I am convinced that if the Bill goes through in its present form there will be a number of hard cases of people who, as a result of the wages board decisions, the employer will find he can no longer keep in his employ. I hope that the Minister will not stick too rigidly to the wording of the Bill. The argument of the Parliamentary Secretary was not good enough and I hope the matter will be reconsidered.

This provision is in all similar Acts, and there is nothing new about it. It would be undesirable to put in the word "age," because it would open the door widely and would suggest that anybody because of his age could offer his services below the rate laid down, and that would be a most mischievous thing.

It seems to me that the Committee is arguing about nothing. I have seen these words in numerous Acts of Parliament, and I know of no Act under which any court would fail to find that age was an infirmity and was in certain circumstances a physical incapacity, or would fail to find that the only way in which old age could operate to reduce the earning capacity of a workman was through its operating in such a way as to be an infirmity or physical incapacity. The word suggested does nothing except to add a certain amount of confusion to the Clause.

Because all unnecessary words add confusion to the construction of Statutes.

Amendment negatived.

I beg to move, in Clause 8, page 7, line 45, at the end, to add:

"(5) Where an employer employs any worker in reliance on any document purporting to be a permit granted under the last preceding sub-section authorising the employment of that worker at less than the statutory remuneration, then, if at or before the commencement of the employment, the employer has notified the wages board in question that, relying on that document, he is employing or proposing to employ that worker at a specified remuneration, the document shall, notwithstanding that it is not or is no longer a valid permit relating to that worker, be deemed (subject to the terms thereof) to be such a permit until notice to the contrary is received by the employer from the board."
This Amendment is moved as the result of representations made to me and of certain Amendments that were put on the Paper and it makes the Clause clearer than the original wording.

Amendment agreed to.

Motion made, and Question proposed, "That the Clause, as amended, stand part of the Bill."

I have been through Clause 8 with some care, and I cannot find that there is any safeguard to prevent an employer being proceeded against in a case where he has failed to pay a worker the statutory remuneration within the two-year period mentioned in this Clause but previous to the passage of the Bill. The point is this: The Bill is passed, and the statutory remuneration is defined by a wages board. There should be some guarantee that an employer will not be penalised for paying wages below the statutory level at some time within the two-year period, but prior to the passage of the Bill. I hope the Solicitor-General will be able to say something by way of explanation.

While the learned Solicitor-General is considering his reply, I would like to put another point, one of considerable substance. Yesterday we had considerable discussion about tipping, and the Parliamentary Secretary explained the circumstances in which certain words would bear a certain meaning. For example, he said that in Clause 10 remuneration would not include tips, while where there was a reference to "benefits" I think he said it would. He also went into the question of the tronc. Suppose that the wages for a head waiter are fixed at £400 a year and the head waiter is receiving in tips £2,000 a year. Yes, there are head waiters who are receiving that sum. There is no doubt about it. If a head waiter receives a salary of £300 plus tips the employer is faced with a great problem, depending upon the circumstances described by the Parliamentary Secretary, in deciding whether those particular tips fall under the term "remuneration" or not. The head waiter's income works out at £2,300, but if the statutory minimum salary is £400 and the employer does not pay he is liable to prosecution. Because the Minister has not dealt definitely with tipping but is tackling in this indirect way, I feel it is a duty we owe to the people concerned to make clear somewhere in the Bill what the position is going to be. Otherwise there will be considerable injustice.

In answer to the point raised by my Noble Friend, I do not quite appreciate the difficulty which he has in mind. The Commission will be set up and will in certain cases make recommendations for a wages board to be instituted. The Minister will then appoint a wages board which will fix the statutory remuneration. After that the question will arise whether employers pay, but I do not think, as I see the matter, that the question can arise of going back six years, because the statutory remuneration, as I envisage things at the moment, will not be retrospective and will not be in operation for periods before this Measure came into force.

Question, "That the Clause, as amended, stand part of the Bill" put, and agreed to.