HC Deb 26 July 1963 vol 681 cc1974-80

Lords Amendment: In page 11, line 7, after "and" insert: subject to the following sub-paragraph".

Mr. Hare

I beg to move, That this House doth agree with the Lords in the said Amendment.

It would be convenient also to take the Lords Amendments: In line 8, after first "hours" insert: (in this paragraph referred to as 'the number of hours without overtime') and in line 8, at end insert: (2) If in such a case—

  1. (a) the contract of employment fixes the number, or the minimum number, of hours of employment in the said week or other period (whether or not it also provides for the reduction of that number, or minimum 1975 number of hours in certain circumstances), and
  2. (b) that number or minimum number of hours exceeds the number of hours without overtime,
that number or minimum number of hours (and not the number of hours without overtime) shall be the normal working hours. Paragraph 2 of Schedule 2 contains a guarantee of minimum pay during notice for employees who have "normal working hours". Paragraph 1(1) gives guidance for deciding whether an employee has normal working hours and what they are. It provides that any employee who receives overtime pay for working more than a fixed number of hours is to be regarded as having normal working hours, and furthermore that the fixed working hours are to be regarded as normal working hours. This provision is essential to give precision to what is meant by normal working hours in this Schedule. In a great majority of cases I think that it will work fairly and reasonably without need of qualification.

When we discussed the Schedule on Report the hon. Member for Paisley (Mr. J. Robertson) suggested that it failed to take sufficient account of overtime. At the conclusion of the discussion, my hon. Friend the Parliamentary Secretary undertook to consider whether any changes should be made as regards overtime, though of course he drew a sharp distinction between cases where overtime is a regular accepted feature of the job and cases where it is exceptional and perhaps optional, and he pointed out that there was no case for including the latter.

Further consideration has suggested that there are cases where the provisions in paragraph 1(1) do not work satisfactorily. There are employments where the employee receives overtime pay for work done in hours which are unquestionably part of the normal working hours. For example, milk roundsmen commonly work a seven-day week and this often includes a regular number of hours at overtime rates of pay. Another example would be an employee engaged in an engineering works under a contract which fixed the figures hours of work at 45, although the agreed standard week in the industry is 42 hours. He will get overtime pay for the extra three hours.

The Amendments meet these cases. They result in the addition of a new sub-paragraph after paragraph 1(1). This provides that if the contract fixed a higher number of hours of employment than the fixed number after which there is overtime pay, then the higher number of hours are to be regarded as the normal working hours. I hope that the hon. Member for Paisley, who is not here, will accept that the Amendments meet the difficulties in a reasonable way and that with this explanation the House will agree that they are desirable Amendments.

Mr. Prentice

I thank the Minister for meeting the points raised on previous stages by my hon. Friend the Member for Paisley (Mr. J. Robertson) and other hon. Members. It was clear that the existing provision did not meet the case of those where overtime was a regular feature of the working pattern. We on this side of the House would say that this sort of situation is unfortunate and that overtime should be something exceptional and not a regular pattern. The fact is, however, that it is a regular pattern and that as originally drafted these people would not have been entitled under this provision to their normal pay during period of notice.

Mr. David Renton (Huntingdonshire)

I should like to refer to a small drafting matter. In my opinion, the first of the Amendments is quite unnecessary. The words "subject to the following sub-paragraph" carry drafting refinement a little too far. Every provision of every Bill is always subject to every other provision of the Bill. Sometimes, to draw attention to the possibility of two parts of a Bill not being easily dovetailed when the Bill is read, it is convenient to put in the words "subject to" whatever it may be, such as paragraph 5 or Section 21, but to say "subject to the following sub-paragraph" is quite unnecessary.

I am raising this point academically in relation to this Bill, because there is nothing that one would wish to do about it at this stage and the last thing that I would wish to do would be to embarrass my right hon. Friend. I draw attention to the matter merely in the hope that it will be taken as a guide to the future.

Question put and agreed to.

Subsequent Lords Amendments agreed to.

Lords Amendment: In page 11, line 25, after "done" insert "in the period".

Mr. Whitelaw

I beg to move, That this House doth agree with the Lords in the said Amendment.

Paragraph 2(2) of the Schedule sets out the guarantee of minimum pay which is to apply to an employee who is paid a time-rate or a flat-rate. He is described as an employee whose remuneration … in normal working hours … does not vary with the amount of work done". It is just conceivable that this form of words could be taken as excluding employees whose pay in normal hours varies. For example, the hours could be three weeks at 40 hours and then a fourth week at 48 hours. Although these workers may be time-rate workers and should be covered by paragraph 2(2) they naturally get more pay in the fourth week and it could be said that their pay varied with the amount of work they did.

The Amendment will ensure that what is referred to in paragraph 2(2) is pay which does not vary with the amount of work done in a given period. I hope that the House agrees that this is a useful Amendment.

Question put and agreed to.

Lords Amendment: In page 11, line 28, after "throughout" insert "the part of".

Mr. Whitelaw

I beg to move, That this House doth agree with the Lords in the said Amendment.

This Amendment is linked with that in line 28, at end insert: covered by paragraphs (a), (b) and (c) of sub-paragraph (1) of this paragraph and I suggest that it might be convenient to take them together.

The Amendments make a further change in paragraph 2(2) of the Schedule. The provisions of paragraph 2 apply if at any time during notice an employee finds himself in one of the circumstances listed in paragraph 2(1), that is to say he is put on short-time or laid off or is away sick or on holiday. Under paragraph 2(2) as it left this House a time worker in this position was to be paid not less than if he were working throughout the normal working hours.

That guarantee could on occasion have had odd results. For example, an em- ployee might miss a day in his first week of notice through sickness. The guarantee would, therefore, have applied. If later on during notice the employee took an afternoon off to see a football match the guarantee would have meant that he was entitled to pay for the hours he was away watching football.

The Amendments prevent this by modifying the guarantee to provide only that the employee's pay during notice shall not be less than it would have been if he had been working during the hours he missed owing to shortage of work or sickness or holiday.

Question put and agreed to.

Subsequent Lords Amendment agreed to.

Lords Amendment: In page 11, line 34, leave out "paid to him" and insert: payable to him by the employer".

Mr. Whitelaw

I beg to move, That this House doth agree with the Lords in the said Amendment.

This Amendment and the next two all relate to the guarantee of a minimum payment to pieceworkers during notice, and I suggest that the House might find it convenient to take them together.

Under paragraph 2(3) and (4), piece workers whose contracts fix normal working hours hut who, through shortage of work, illness, or their holidays, are unable to work those hours in full are to be paid for the hours not worked at not less than their average hourly rate of pay during the four weeks before notice was given.

Paragraph 2(4) lays down certain rules about calculating the average hourly rate of pay. In working it out, no account is to be taken of periods of sickness or holidays, or of the sick pay or holiday pay for those periods. That is because pay at these times is often at a reduced rate and it would, therefore, be unfair to the employee to include it in this calculation.

The reason for these Amendments is that on further consideration we concluded that there were other circumstances in which the employee might have a reduced rate of pay which should not be reflected in the averaging calculation. Work might be temporarily held up by the weather or a breakdown and an employee who was standing by unable to work at such a time might get paid at, say, only half his normal rate. Under a guaranteed week arrangement an employee might have to be available for work throughout the week—say, 44 hours—but get the equivalent of only 36 hours wages. The Amendments put this right by providing that only the hours actually worked and the pay for those hours shall be taken into account in working out the average. They thus ensure that the principle underlying this part of Schedule 2 is applied, namely that an employee should receive during notice not less than the contractual rate for his full normal working hours.

That was the clear intention of this House and I hope, therefore, hon. Members will agree that this Amendment is desirable.

Question put and agreed to.

Subsequent Lords Amendments agreed to.

Lords Amendment: In page 13, line 5, after "if" insert: after the notice is given and".

Mr. Whitelaw

I beg to move, That this House doth agree with the Lords in the said Amendment.

I think that it might be convenient to discuss with this Amendment the remaining four Amendments on the Notice Paper.

This Amendment affects paragraph 5 of Schedule 2. The purpose of that paragraph is to prevent an employee who gives notice intending to go on strike from having his pay protected by the Bill during the period of notice. However, the hon. and learned Member for Liverpool, Edge Hill (Mr. A. J. Irvine) pointed out on Report that the paragraph as it then stood could possibly be construed as going much further than this and meaning that if at any time during his employment an employee has gone on strike, he is to be deprived thereafter of the protection of Schedule 2during any notice. That was, of course, as I made clear to the hon. and learned Member during the Report stage, far from our intention, The Amendment, I hope, prevents any possibility of paragraph 5 being taken in this way. As altered, it will apply only if the strike takes place after the notice is given.

Very much the same point could have been made about paragraph 6 of the Schedule. This paragraph is needed to make clear what is to happen to the rights in the Schedule if there is a breach of contract during the period of notice. As it stood it could possibly have been taken as being applicable if at any time during the whole course of the employment there had been a breach of contract. The remaining four Amendments remove this possibility by making it clear that what is being referred to is breach of contract during the period of notice.

The last of these four Amendments also makes another change. As paragraph 6(2) stood, it could be brought into operation by any breach of contract by the employee, however trivial. In other words, a clerk could arrive a minute late at his office and therefore forfeit his entitlements under the Schedule for the rest of the period of notice. The Amendment puts this right by providing that the employee only forfeits his rights if he commits a breach which the employer rightfully treats as terminating the contract.

I hope that the hon. and learned Member for Edge Hill will feel that these Amendments meet the point on which he expressed anxiety on Report.

11.45 a.m.

Mr. A. J. Irvine

I am grateful to the Government for giving the consideration that they have to the points which I made and for the action that they have taken.

If we consider the last of these Amendments by itself, it is rather a startling and unforeseen consequence of the argument that I put forward. I think that the House will readily acknowledge that fact. I therefore felt some concern about it. However, I accept that the overall effect of these Amendments is that the case that I put forward is met and that that has really been their object. I am, therefore, grateful for what has been done.

Question put and agreed to.

Remaining Lords Amendments agreed to.