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Lord Clinton-Davis: The noble Baroness spoke of preposterous propositions and then went on to make a number of them, drawing inspiration from the planet Mercury in doing so.
Perhaps I may deal with the question of a partnership. I have been inured into this because I am a solicitor. All the noble Baroness has to do is to mention the word "solicitor" and I become ensnared. We are talking about one employer in that situation, in terms of a partnership.
One can rely on a whole set of hypothetical circumstances in order to try to undermine a principle. All these cases, if they fell to be dealt with, would have
to be dealt with on the specific facts, on the particular contractual arrangements that existed between the parties. The responsibility for paying the minimum wage can depend on those particular circumstances, especially on whether the individual being paid is self-employed, or an employee or a worker.Amendment No. 2 would remove the entitlement to the minimum wage from any worker who works for more than one employer in respect of the same work. That is the purpose of it. I see that the noble Baroness nods in agreement.
It is worth mentioning that when the amendment was originally tabled on 30th March the words
- "in respect of the same work"
were omitted. According to that version, the amendment would catch employees with a second job. We could certainly have a debate about that, if that occurred, when there was a debate in another place.
The situation would, in any case, be clear. The minimum wage would be payable for both jobs. After all, if a person has two jobs, no one expects his first employer to pay him less simply on account of the fact that he is earning two pay packets. That would be beyond the realms of imagination. So why should anybody with two jobs not be entitled to the minimum wage in respect of each employment?
The issue of second jobs does not appear to be the point that lies behind this amendment. The original amendment was changed and replaced on 21st April by the current version, which adds the words
- "in respect of the same work".
Therefore, the situation which the amendment seems to envisage is one where a single person is being paid by two employers to do the same work. For the individual in question, that appears to be a very happy situation, because the person concerned would be receiving two salaries for carrying out a single piece of work.
With great respect, I do not believe that the amendment has anything to do with practical realities. Are there really individuals in this happy situation? Can the noble Baroness point to such cases? The noble Baroness sought to allude to solicitors' partnerships, which have nothing to do with this at all. Or, are there really employers who, between them, are content to pay the same individual twice over? Perhaps the noble Baroness can allude to certain factual situations. In any event, if she is able to, I do not see these situations being something that the Bill could or should be designed to prevent.
With the best will in the world, I believe that the revised amendment is meaningless. The situation is quite simple, despite this and other attempts to make it appear complex. If a worker has more than one employer and more than one job, each of those employers is responsible for paying the worker at least the rate of the minimum wage for the time during which that worker is working for him. I do not see the problem. If a person does two jobs as a worker, then he or she should get two wages, each underpinned by the minimum. That is our case. I believe it is a very sensible proposition.
I believe the Opposition have become somewhat confused by these hypothetical instances. I hope the noble Baroness will feel persuaded that this is not a matter which she would wish to press forward tonight.
The Viscount of Oxfuird: Perhaps I may have some clarification. A number of people in this country act on a commission-only basis. How could they be described under these circumstances? Because they are responsible for the sale of a product, in the course of their work they may be employed by four or five employers. In that case, would they fall within this particular clause?
Lord Clinton-Davis: No, because they would be self-employed persons. They would be acting on a commission-only basis.
Baroness Miller of Hendon: For the purposes of clarity and Hansard, I was not nodding at the Minister. I was smiling across the Despatch Box and I was not actually agreeing with what he was saying.
Turning to that particular point, I hesitate to argue a point of law with the Minister, who has been a member of the solicitors' branch of the legal profession for, I believe, something like 45 years. Indeed, I would not wish to argue a legal point with anyone on the Government Front Bench. As he said to me, with the greatest respect, that I was wrong, I would like to say, with the greatest respect, that I believe that the Minister is wrong.
A limited company is a legal entity. A corporation created by statute or Royal Charter, such as the BBC, is a legal entity. A partnership is not a separate legal entity, but a body made up of all its individual members. If one of them incurs a debt on behalf of the partnership, or injures someone in the course of the partnership's activities, or if someone simply falls down a defective staircase in their office, each partner is jointly and severally liable to the third party. In my opinion, it is not sufficient simply to exempt partnerships because there are other activities where a person can be working for more than one person simultaneously.
The Minister asked me to give some examples. It could be a joint venture or an unincorporated members' club. For example, I and some colleagues could get together to employ a researcher out of our meagre secretarial allowance, or 50 of us could decide to engage a trainer to conduct a keep fit class between Divisions during late sittings, and many of your Lordships might well appreciate that. The amendment that we are considering has been drafted so as to cover any eventuality that the most fertile imagination could conceive. The Minister suggested that the wording of the amendment had been changed. We have changed it in order that it will cover any example that anyone might like to think up.
The amendment is helpful and is intended to rescue the Government from the consequences of the very loose phraseology used by the draftsman, followed by the extravagant and ill-considered interpretation put on the clause by the two Ministers in the other place.
I have no intention of withdrawing the amendments at the moment. I wish to hear what the Minister has to say and I believe that my noble and learned friend has something to say, too. The Minister suggested that the amendment was irrelevant and that I did not know what I was talking about. I tried to point out to him that it was particularly relevant and that I should like to hear what he had to say.
Lord Clinton-Davis: I should never be so discourteous as to say that the noble Baroness did not know what she was talking about. I am grateful to her for her intention to be helpful, but it has not worked out that way. The partnership she referred to was a body. That is exactly what it is.
7 p.m.
Lord Fraser of Carmyllie: Is a partnership a person?
Lord Clinton-Davis: No, a partnership is not a person.
Lord Fraser of Carmyllie: Will the Minister look at Clause 54(4), which states:
- "In this Act 'employer', in relation to an employee and a worker, means the person"?
Lord Clinton-Davis: It is not, normally speaking, a person, but in the context of this Bill that is how it is defined. Normally speaking, a partnership is not a person, but it depends on the context in which one is referring to it.
Lord Fraser of Carmyllie: There will be some disagreement between my noble friend and myself because so far as I am concerned a partnership in Scotland, as even English lawyers know, enjoys a separate legal persona. Therefore, in the terms of that definition, I have no doubt that a Scottish partnership would be a person.
I am interested to know, and I should be grateful for elucidation before we reach Clause 54, whether a partnership in England is properly described as a person. If a partnership in England is described as a person, we wish to get the matter clarified before we reach Clause 54.
Lord Clinton-Davis: For the purpose of this Bill, a partnership is defined as a person. In other respects, it may not be. However, I do not wish to become involved in that debate, nor do I wish to become involved in the niceties of Scottish law, of which I know even less than English law.
The question about keep-fit classes is interesting, and I shall join. I am not suggesting that the noble Baroness is talking utter balderdash; I merely tried in a polite way to refute the argument from the Government's point of view. We do not see that she is seized of the proper point. I do not see that repetition adds anything to the argument; I clearly set out our case in this regard. We believe that the Opposition are wrong. The amendment,
if agreed to, would do serious damage to the Bill and I do not want that to happen. I invite the noble Baroness to withdraw it.
Lord Monson: Before the noble Baroness decides what to do, perhaps I may say with all respect that I do not believe that the noble Lord, Lord Clinton-Davis, has answered her point about people banding together to hire the services of a secretary or a personal trainer. We are not talking about partnerships, which may well be a grey area; what we are talking about is not a grey area.
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