An amendment to the Title of a Bill should be made in Committee, and it should be consequential to amendments made to the Bill itself. I do not think Deputy Davin's amendment would fulfil that condition. I think it is simply an expression of a different opinion about the Bill, rather than an amendment to the Title of the Bill. Is not that so?
RAILWAYS (EXISTING OFFICERS AND SERVANTS) BILL, 1926—FOURTH STAGE.
The following amendment stood in the name of Deputy Davin:—
In page 2, Title, line 8, to delete the words "make better" and substitute the words "alter the."
It must be quite obvious, from what the Minister said when moving the Second Reading of the Bill, that it is not a Bill to make better provision for the compensation of officials and servants of the Railways Company. If you, sir, rule the amendment out of order, perhaps it could be considered before it goes through the other House. The Minister could then get the views of the people concerned in its operations.
The amendment is one which ought not to be taken at this stage.
Amendment not moved.
The following amendment stood in the name of Deputy Johnson:—
In page 2, Section 2 (1), to delete all the words from the word "and" in line 33 to the word "cause" in line 39 inclusive.
This amendment is the same as an amendment moved by Deputy Peadar Doyle in Committee and disposed of. It would have identically the same effect as amendment No. 2, defeated in Committee.
Deputy Doyle's amendment on a previous stage was discussed at length. It included those words: "On account of his services having become unnecessary in consequence of a change of administration due directly to the amalgamation or absorption of the company under the Principal Act." That is the important part of the amendment which Deputy Doyle moved. My proposal at this stage is not to take that part out, but only to take out the words "and not shown by the amalgamated company to have been caused by a decrease of traffic." It is a much more limited excision than that which Deputy Doyle dealt with.
It is a somewhat technical matter. It seems to me Deputy Doyle's position was that he wanted no reason except one connected with amalgamation. That is to say, Deputy Doyle wanted to delete everything except what referred to amalgamation. Deputy Doyle's amendment was:—"In sub-section (1) to delete from and including the word "on," line 30, to the word "cause," line 38, and substitute the words "on account of or by reason of the amalgamation or absorption of companies effected by or under the Principal Act." I think Deputy Johnson's amendment would have the same effect: it will delete everything except "in consequence of a change of administration due directly to the amalgamation or absorption of the Company."
This Section No. 2 is introduced, as explained by the Minister, with the object of bringing into the operations of the Principal Act certain classes of railway servant who were not previously included. If the section were passed in its present form these particular servants would be brought in under different conditions from those who were originally included. I seek to modify these conditions to the extent that I want to delete those references to a decrease of traffic, reduction of renewal or maintenance work and so on.
Would the Deputy explain to me exactly the difference between a debate on this amendment and on the amendment defeated in Committee?
With due respect, I am suggesting that we are entitled to deal, as a matter of form, with the effect of the amendment, if carried. The debate may have ranged around a particular idea. The proposal in the other amendment was very different from the proposal in this amendment.
Would the Deputy explain the difference in the proposal?
The proposal in the section is to bring into the operations of the Act certain officers and servants who were not hitherto brought in, and it is proposed by the section, as it stands, that these persons shall be such as those whose services have been dispensed with on account of their services having become unnecessary in consequence of a change of administration due directly to the amalgamation or absorption of the Company under the Principal Act. So far, I am not asking the House to deal with those proposals, but I say that the additional reasons that are included in the section as it stands should not be included in the reasons why those persons should receive a gratuity. There are certain reasons given which I am not seeking to touch by this amendment, but there are other reasons which are additional, which I am seeking to delete.
I am quite clear on this matter, but my mind is open to change. I do not want to hear about the section. I want to hear how this amendment differs in fact from Deputy Doyle's, which was defeated in Committee.
The difference in fact is that Deputy Doyle's amendment sought to delete the first part, that is, certain reasons which are defined in this phrase "On account of his services having become unnecessary in consequence of changes in administration." My proposal is to leave that in, but to delete certain additional reasons why the gratuity should be paid.
I am not convinced. Deputy Doyle proposed to delete certain words and insert other words. Deputy Johnson is going to delete certain words, and his amendment is identical with Deputy Doyle's. I am not prepared to allow Amendment No. 2 to be discussed.
Amendment No. 2 not moved.
I move Amendment 3:—
In page 3, Section 4, to delete lines 27 and 28 and substitute the following words—"and the deletion of sub-paragraph (a) thereof and the insertion of the following clause and four sub-paragraphs in lieu of the clause and sub-paragraph so deleted, that is to say."
It is necessary to refer to other amendments later on the page to explain the full effect of this amendment. Other amendments later on the page are in accordance with the comments I made in the Committee Stage to have the scheme in Section 4 to a certain extent readjusted. This amendment is merely to insert the necessary preamble to later amendments. It will have the effect of cutting out the words in sub-paragraph (a) and insert— ing the words in the amendment. The net result is to have sub-paragraph (a) in the amendment as the proper preamble to (a) as it stands and the four sub-paragraphs, with subsequent changes in some of those paragraphs as denoted in the amendments following on the Paper. It will be necessary to do this for reasons which will be explained when I come to the relevant sub-paragraph. The main effect that will be noticed here is that there will have to be cut out certain other preambulatory matter to certain other of the paragraphs as they stand, such as lines 26 and 27, which serve, at the moment, as an introduction to sub-paragraph (ab). This is introduced to regulate the whole run of paragraph (a) and the four sub-paragraphs. If Deputies have read the amendments and understand them I do not think they require any further explanation.
I raised the question on the Committee Stage, in an effort to make the section more easily understandable, and while it is still difficult to read the paragraphs containing very long sentences, it is possible now to understand it. I do not think it was possible before, and, as I understand it, it seems to convey the intention of the Minister.
Amendment put and agreed to.
The following amendment stood in the name of Deputy Davin:—
"In page 3, Section 4 (a), to delete all the words from the word ‘and,' line 39, to the word ‘cause' in line 46 inclusive."
This amendment of Deputy Davin is identical with amendment 2.
Do you rule it out of order?
Yes.
Amendment not moved.
I move:—
In page 4, Section 4, line 2, immediately after the word "life" and before the semicolon to insert the words "not exceeding in any case two-thirds of his remuneration and emoluments, and, subject to that limitation and to the provisions of sub-paragraph (d) hereof, to be calculated at the rate of one-sixtieth of his remuneration and emoluments for every completed year of his service with the amalgamated company or any absorbed company, with an addition thereto based on the number of completed years of his service and calculated according to the following scale:—
If he has twenty or more completed years of service, an addition of ten-sixtieths of his remuneration and emoluments.
If he has fifteen or more completed years of service and less than twenty such years, an addition of seven-sixtieths of his remuneration and emoluments.
If he has ten or more completed years of service and less than fifteen such years, an addition of five-sixtieths of his remuneration and emoluments.
If he has five or more completed years of service and less than ten such years, an addition of three-sixtieths of his remuneration and emoluments.
This amendment and the following one, No. 6, carry out what I agreed to do in answer to a demand of Deputy Johnson, but in carrying out that promise certain considerations arose which have led to something of a change. That change is now denoted in this and the following amendments. This amendment really establishes the position that was affected with regard to those people whose office or situation was abolished, or whose services were dispensed with. These people no longer remain in the service of the company. This amendment now puts into one section what was previous to this the effect on these people of the old Schedule to the Railways Act of 1924, as amended by the Bill passed in Committee. It carries on everything exactly, except that it says that the remuneration is to be calculated at the rate of one-sixtieth. As the Bill passed Committee, the statement in that connection was, "at a rate not exceeding one-sixtieth." I promised with regard to that that the rate should be one-sixtieth, reserving the other portion for another type of railway servant. Taking the matter which is spaced in a different way in the amendment, it is taken from the old Schedules and reinserted here with regard to this particular type of employee. The main change from the Bill, as amended in Committee, is that it puts the calculation at one-sixtieth instead of, as previously, "not exceeding one-sixtieth."
I think the amendments carry out what was understood in Committee, with one very important exception which, I think, is an omission. If the Minister will look at this amendment from sub-paragraph (d) he will notice that it reads thus: "To be calculated at the rate of one-sixtieth of his remuneration and emoluments for every completed year of his service with the amalgamated company or any absorbed company." There is an omission there after the words "amalgamated company," of the words "amalgamating company," so that it should read "or any amalgamating or absorbed company."
Should the change not be "with any amalgamating or absorbed company"?
If there were a year or two years of service with an amalgamating company it would have to count.
We will take it as it is in line 20 of the Bill as it passed the Committee, "amalgamating or absorbed company." It should, therefore, read "with the amalgamated company or any amalgamating or absorbed company."
It occurs to me that the word "or" would eliminate any addition of the two periods. That should not be. If there were twenty years' service with an amalgamating company, or if there were a few years' service with an absorbed company, they should be added together.
The calculation is to be at the rate of one-sixtieth for every completed year of service, whether it be with an amalgamating or an absorbed company.
I just raise the question whether it would involve that the service shall be with one or the other, and only that service, or that either of them would be taken into account. I am sure that the Minister's intention is well understood. Perhaps he would consider the matter from the legal point of view between now and the final stage.
If the Deputy would take sub-section (9) of the Third Schedule he would see that it states, "for the purposes of this Schedule every person in the employment of an amalgamating company or absorbed company shall be deemed to be an officer or servant of that company." If it is a matter of getting the intention more clearly expressed I will consider it.
I have had no guidance on this. The thought just occurred to me during the discussion, and it may require some legal consideration.
If so, it would be merely a verbal amendment on the next stage.
The intention would be to give the individual the benefit of continuing service.
Service, whether it has been with the amalgamated company, or with an amalgamating or absorbed company.
Amendment, as altered by leave, put and agreed to.
I move:—
In page 4, Section 4, to delete lines 4 to 28 and substitute the following words, "a lump sum, but if an appeal is taken to the standing arbitrator or arbitrators such arbitrator or arbitrators may, if he or they so think fit on the hearing of such appeal, award as compensation (in lieu of a lump sum) an annual allowance to be paid to the existing officer or servant during his life, not exceeding in any case two-thirds of his remuneration and emoluments and, subject to that over-riding limitation, not exceeding an annual sum calculated at the rate of one-sixtieth of his remuneration and emoluments for every completed year of his service with the amalgamated company or any amalgamating or absorbed company;
(ac) in fixing the nature and amount of compensation to be awarded in cases within the foregoing sub-paragraph;
(ab) all the circumstances of the case shall be taken into consideration and in particular due consideration shall be given to any such loss of prospective superannuation or other retiring or death allowance as aforesaid."
The effect of this amendment is to fulfill a promise to Deputy Johnson. It is put in the form that, ordinarily speaking, except in cases referred to in (aa) the compensation shall be a lump sum. There is a provision made for appeal on that point, so that the company would be able to make a case that that lump sum should be substituted by an annual allowance. Ordinarily, however, there is to be a lump sum payment in the first instance, and the onus is on the company to get that lump sum changed.
Amendment put and agreed to.
I move:—
In page 4 to insert before paragraph (d), line 37, a new paragraph as follows:—
(d) by the deletion of sub-paragraph (b) thereof and the insertion of the following sub-paragraph in lieu of the sub-paragraph so deleted, that is to say:—
For the purposes of this Schedule an absence from or discontinuance of employment by any amalgamated or absorbed company for a period of less than one year due to the closing or partial closing of a branch or department by such company in consequence of civil strife in the years 1922, or 1923, shall not be deemed to be an interruption of the period of service but the period of such temporary absence shall not be reckoned for the purpose of compensation unless the officer or servant was during such absence engaged in service in the National Army forces of Saorstát Eireann when the period of such service shall be reckoned and included in the period of service for the purposes of the Schedule.
This is to substitute an amendment moved in Committee that I obtained the leave of the House to withdraw, as the Minister stated he could not see his way to accept general exceptions and interruptions of service, but he undertook to consider the case if I re-drafted the amendment. I do not know whether this re-draft will meet with the approval of the Minister or not, but I submit it.
A point arises in this amendment that I am sure was not intended by Deputy Doyle. He wants to delete sub-paragraph (b) of Section 5 of the Third Schedule of the Act of 1924. The sub-paragraph that it is proposed to delete has reference to "where any existing officer or servant was temporarily absent from his employment as such officer or servant and during the whole of such absence was engaged in the service of the National Forces of Saorstát Eireann." The Deputy's amendment, if passed, would wipe that out. Obviously he does not intend that.
I propose, therefore, to amend the Deputy's amendment in this way: the relevant deletion will be by the deletion of sub-paragraph (b) and the insertion of the following sub-paragraph in lieu of the sub-paragraph so deleted—the lettering and the numbering will be (b) (1)—"Where any existing officer or servant" is then re-enacted, and I propose to add then as (b) (2) certain words instead of what Deputy Doyle has proposed. Before I give them I might say that what Deputy Doyle seeks to provide is that absence from or discontinuance of employment by any amalgamated or absorbed company for a period of less than one year due to the closing or partial closing of a branch or department by such company in consequence of civil strife in the years 1922 or 1923, shall be reckoned as temporary disturbance, but that period shall not be reckoned for the purposes of compensation.
What I propose carries out much the same thing, though somewhat differently phrased, and there is one rather important point of difference, but that is in accordance with a remark made to me by the Deputy on the Committee Stage. (b) (2) will then read: "Without prejudice to the provisions of the preceding clause, numbered (b) (1), where any existing officer or servant was absent from his employment as such officer or servant for a period of less than one year on account of the closing or partial closing of a branch or department of any amalgamating or absorbed company in consequence of civil strife in the years 1922 or 1923"—that is the same—"such absence shall not be deemed to have caused an interruption of his service if otherwise continuous as such officer or servant, but the period of such absence shall not be included in his service as such officer or servant unless he was engaged during such period of absence in service in the National Forces of Saorstát Eireann."
That is an attempt to put in the full effect of what Deputy Doyle has proposed and to save the effect, that he did not intend, of wiping out sub-paragraph (b). But there is a distinction "such service if otherwise continuous." I asked Deputy Doyle on the Committee Stage if the amendment he was moving was to have the effect of counting in men who were ordinarily employed casually or in a temporary way. He said it was not his intention to have those brought in, so that the phrase "shall not be deemed to have caused an interruption of his service if otherwise continuous as such officer or servant" would meet the case, I think. The Deputy has not seen this new form, and it is very difficult to understand these things simply from hearing them read, but this has the full effect of his sub-paragraph, with that one exception.
I intended trying to persuade Deputy Doyle not to press this amendment, because it would be very detrimental to the interests of many railway servants. I think the Minister's form meets the objections that I had intended to raise.
I am quite satisfied to accept the Minister's amendment.
I think it would be better to take Deputy Doyle's amendment as withdrawn and then to take the Minister's amendment.
I discussed this matter with Deputy Doyle. I am quite sure that his desire was to give the benefit of continuous service to a few people, but at the same time, if he insisted upon his amendment, he would be giving advantage to the few to the disadvantage of the many, and I am sure that that was not his desire. I think that the Minister's amendment meets the case very fairly.
Amendment withdrawn. Minister's amendment put and agreed to.
I move:—
In page 4, Section 4, to delete all from the words "In fixing," line 40, to the word "compensation" in line 46, and to substitute the words "whenever the compensation fixed by or under any of the foregoing sub-paragraphs."
This is consequential upon Amendment 6. In Amendment 6 the words that are now proposed to be deleted are included, and they are therefore not necessary here.
Amendment put and agreed to.
I move:—
In page 4, Section 4 (d), (d), to delete all after the word "aforesaid" in line 45 to the end of the section.
The portion of the sub-section proposed to be struck out would be found to be extremely impracticable in working, and it is exceedingly vague in draughtsmanship, as I think the Minister will admit. The Minister's amendment was obviously drafted with an eye to one particular fund only, without taking into consideration the different rules of the three funds. The Minister made some extraordinary statements on the Second Reading in regard to the position of the different funds. He stated that the "A" Fund, that is, the revenue account of the Great Southern Railways Co., was an insolvent fund. I think he also said that the Railway Clearing System Superannuation Fund was, in his opinion, also insolvent. I mention these matters again in order to give the Minister, if he has reconsidered the matter, an opportunity of withdrawing these statements which, in my opinion, are not correct, and which might be prejudicial to the interests of the members of these funds.
I corrected myself in that. I said that the word "insolvent" was not the word to be used, but instead I used the words "actuarily unsound." Does the Deputy object to that?
I would object to that unless the Minister says that that statement is based upon the last actuarial valuation. I would go so far as to challenge the statement of the Minister as to the insolvency of the "A" Fund of the Great Southern. If the Minister insists in making that statement it means that the whole financial position of the railway is in itself unsound. I fail to see why the Minister should make himself responsible for that statement or for insisting on repeating such a statement. In this sub-section the arbitrator is instructed to take into consideration all the circumstances of the case, and that should be sufficiently definite for all parties. Suppose, for instance, a member of the Railway Clearing System Superannuation Fund governed by a British statute is made redundant and he is fifty-seven years of age, the rules of the fund provide that he shall have from the fund and not from the company a refund of his contributions. Is it proposed that he shall get, in addition, a refund from the company direct?
Yes.
Is it also proposed in assessing his compensation to take into account the annuity value of what he received from the Superannuation Fund and to reduce his pension accordingly?
Yes.
In the case of a member of the "B" Fund who receives a lump sum by way of compensation and who is less than sixty years of age, is he in a position to get a refund of his own contributions plus interest and the refund from the company?
Will the Deputy repeat that?
The Minister is now acquainted with the difference between the "A" and the "B" Fund——
The House has not grasped the difference yet.
Deputy Davin only got it this morning.
I am quite well aware of the rules and the regulations. I have the balance-sheet of the three funds of the company. In the case of members of the "B Fund" who receive a lump sum by way of compensation and who get a refund of their own contributions plus interest, are they to get a refund from the company?
Yes. The Deputy's amendment is merely to delete a provision that was made here on Committee Stage with regard to taking into consideration the amount which an officer or servant would be entitled to get out of the contributory superannuation or benefit fund that was to be taken into account in a particular way as set down in the schedule. The Dáil agreed to that after a certain amount of discussion, and the Deputy is now moving to delete it.
I merely move the amendment to get an expression of opinion from the Minister on the questions I asked, and I want to know if he still persists in his statement that the "A" Fund is insolvent.
This is a thing that should be cleared up. It was for that purpose that I withdrew the word "insolvent" and said "actuarily unsound." I now have to make a further distinction that per se the “A” Fund is unsound. The Deputy has made a statement that if it is insolvent the railway company then must be insolvent. That is quite true, because what happened was that the railway company took on itself the burden of seeing that the benefits were not lost. The “A” Fund was amalgamated with the Railway Clearing House Fund and both rest on the same basis. To say that one is insolvent could be strictly regarded as meaning that the railway company is insolvent. The meaning I want to convey by that is that there is no fund built up by these contributions from which the men could at present draw benefits. They will not be deprived of benefits, but that is due to the fact that the railway company's resources are at the back of these two funds.
Amendment put and declared lost.
I move:—
In page 4, Section 4, line 53, after the word "shall" to insert the words "notwithstanding anything contained in any of the foregoing sub-paragraphs."
This amendment is necessary, because previously in the Schedule is a statement as to what the compensation shall be. This distinction is made and it is necessary to have no doubt in the mind of whoever has to decide whether this particular section overrides any other description or interpretation that may be given to compensation.
Amendment put and agreed to.
I move:—
In page 5, before Section 6, to insert a new section as follows:—
No stamp duty shall be payable in respect of any agreement heretofore made under the Third Schedule to the Principal Act or hereafter to be made under the said Third Schedule as amended by this Act or under this Act between the amalgamated company and any existing officer or servant or any other officer or servant of the amalgamated company nor in respect of any award heretofore made by the standing arbitrator under the said Third Schedule or hereafter to be made by the standing arbitrator or arbitrators under the said Third Schedule as amended by this Act or under this Act."
Deputy Johnson had moved an amendment of this type and I intimated that I would get the amendment which he put forward looked at from the point of view of drafting and see how it could be fitted in here. I would like to call attention to this, because I am not sure how far Deputy Johnson's amendment is supposed to go. It may, in its present form, appear to be retrospective, because it talks of "any agreement heretofore made," but it is not in fact retrospective except to a very limited extent. If there has been any agreement stamped there can be no refund of whatever money was expended upon that stamping. If there has been an agreement already come to but not heretofore stamped then this section applies. There is no question of a refund where expenses have been incurred by reason of stamping. But where there have been agreements and these have not yet been stamped then no stamp duty will arise and the person will not be liable for stamp duty.
The Deputy seems to have cured the Minister of any inclination that he may have had for retrospective legislation.
Not quite, but I hope we shall do so later on this evening. I accept the Minister's statement that there can be no question of a refund of payments made. As a matter of fact there has been stamp duty charged on some agreements that have been made.
Amendment put and agreed to.
I move:—
In page 5, Section 6, to delete all words after the word "Schedule," line 3, up to and including the word "before," line 5, and substitute the words "which arises subsequent to."
I suggest that we may discuss the issue raised in this amendment with amendments 13 and 18. That method would save time. I prefer Amendment 18 as a matter of fact if it can be agreed upon. Amendments 12 and 13 were only put forward as alternatives not quite as satisfactory perhaps as 18. The question Deputy Hewat has just raised about retrospective legislation is really involved in this question. The matter was discussed, perhaps not quite intelligently, the other day, when certain points were made that only legal decisions or the arbitrator's actual awards should be free from being affected by any subsequent legislation. This series of amendments is intended to make secure from the effects of this revised legislation the men who suffered loss and who, under the existing law, were entitled to certain compensations. If the ordinary processes had been allowed to carry on they would have received compensation on the basis of the existing law.
To illustrate my point, I have a list of twenty-three cases before me from one association out of three or four associations. These were men on whose behalf notices were served by the company as far back in some cases as May, 1925, and extending in the case of some to November, 1925. A notice was served upon the company and claims made in respect to losses, claims according to the then existing law. Subsequently, the men's solicitor served notice upon the company's solicitor when no satisfaction was received by application direct to the company. A man, through his solicitor, served notice upon the company's solicitor in December, 1925, and in January and February of this year. There was no question all this time of any new legislation, and the rights of the railway servant or the ex-employee, as the case might be, were, and should be, secured to him by the law. If the ordinary processes were being carried out, decisions would have been made by the arbitrator in respect to those cases. The solicitor for the claimants, after considerable delay waiting for an answer from the company's solicitor, had to serve notice upon the latter in these terms:—"In default of delivery of answers in the foregoing cases within one week from receipt hereof copies of application will be sent to the standing arbitrator, and all such steps as will be necessary will be taken for the purpose of having appeals brought on for hearing without further delay."
No result came from that notice. There was, as I think, deliberate delay, having in mind the possibility of future legislation. Claims were then submitted to the standing arbitrator asking him to have the cases heard, because it was the opinion of the claimants, through their solicitor, that they were being unduly held up. The reply to that was an intimation that he could take no further steps as he had handed in his resignation. Now we are asked to legislate in such a way as to make the position of these men under the new legislation worse than under the legislation which covered them up to the date of the introduction of this Bill. I think that in all equity and reason the cases of railway servants should remain covered by the law that existed up to the time of the passing of this Act or some date, at any rate. I am not sticking to the phrase "the passing of this Act." I draw attention to what, perhaps, is a very sensible error, if it was an error, in the marginal title of this Bill, which speaks of the 26th May, 1926. I think that was much more sensible than the section itself. But let us fix a date which would preclude what the Minister feared, a shoal of applications between now and, say, nine months after the Seanad has held up this Bill.
I do not want that. I do not want the Seanad to hold up the Bill for the purpose of allowing large numbers of people to put in applications. Let us fix a date, say, 1st May this year, or the date of the passing of the Bill through the Dáil. That would obviate the risk of a considerable number of new applications being put forward. In any case, whatever date is fixed. I ask the House to realise that there is injustice being done if we make this Act retrospective as covering the cases of men who, if the ordinary processes of the law had proceeded, would have had their claims secured. But, in addition to this type of man, there has been a considerable number who were put off by the company from any agreement, awaiting the decision of the arbitrator in other cases. These are claims which were lodged prior to the date of the Second Reading of this Bill. Those cases, surely, ought to be judged according to the Act which existed at the time and to the law which existed at the time the claims were lodged. I think that is a very reasonable and equitable proposition, and to do anything different from that would be injustice and entirely outside what the Dáil has declared to be its intention, not to legislate retrospectively. I move amendment 12.
I am sorry I missed the portion of the debate on the Committee Stage of this Bill when this particular amendment was carried, because I think if Deputies in the House now will only search their memories they will clearly remember that the Minister, in response to a very definite question put to him by Deputy Cooper, stated that he would move the deletion of the retrospective section that was in the Bill when it came up on the Committee Stage. The insertion of Section 6, and I say this with due deliberation, is being looked upon by the railway people as a definite and distinct breach of the honourable understanding and undertaking given by the Minister on the Second Reading of the Bill. I notice that Deputy McGoldrick, who is not here now—judging from the official reports he did not give very much of an explanation in support of his amendment—stated that "if Section 6 is deleted from the Bill it will be necessary to provide a definite date on which the Bill operates. Otherwise the parties will not know the position that may arise before the Bill becomes law." It is a most unusual thing, when discussing a measure that is passing through the House, to refer to the date of its coming into operation in language of that kind. If I understand the procedure correctly, the date on which an Act comes into operation is that on which it receives the assent of the Governor-General. I would like to know if that is so.
Ordinarily, yes.
We have heard from the Minister for Justice the very distinct and definite declaration that retrospective legislation could not, and cannot, be justified except in case of a great national emergency. The Minister for Industry and Commerce, in agreeing to the request of Deputy Cooper on the Second Reading of this Bill admitted that, and therefore I do not think he should have proceeded to give effect in this qualified way to his promise. The Minister stated that the retrospective side of it is limited to cases where there have not been agreements. If my information is correct, the arbitrator tendered his resignation on or about the date on which this amending Bill was circulated in the public Press. If, in the ordinary course of events, the arbitrator had continued to serve or if the Chief Justice, on his resignation, had appointed someone in his place, the person acting as arbitrator would have heard the many cases that Deputy Johnson has referred to since the date of the printing of the measure, which was about the date of the arbitrator's resignation.
No. The resignation is dated about 1st May.
Well, then, may I put it in this way: the arbitrator did not deal with any cases subsequent to the printing of this measure.
He has not dealt with cases since the 25th March, the day before the Bill was introduced.
I put it to the Deputies who were good enough to demand the withdrawal in Committee Stage of this retrospective section that the Minister is seeking now to give effect in a qualified way to his original clear statement. I do not think the individuals themselves, or the solicitors acting for them, should be deprived of the benefit of the original Act because of the failure of the Chief Justice to appoint somebody in the place of the arbitrator who resigned on 1st May, and who did not deal with any cases subsequent to the date of the publication of this measure. The number of cases likely to have been dealt with in the intervening period would have been something less than 30. I passed a list to the Minister last night, and that is only from one Association. From the Railway Clerks' Association there were only three or four cases.
The Deputy has defined a list of 23 cases which would fall for consideration. Under which of these three amendments are they being discussed? The Deputy seems to limit the number of cases that might get consideration under the old schedule as opposed to the new schedule to 23. Does that number hold for all three amendments, or which of them?
These claims were all put in before the end of last year. There may have been, and probably are, other cases this year where claims have been put in to the company.
We are discussing three amendments, one of which, amendment 12, means in effect that the amended schedule shall deal with cases that arise subsequent to March 26th. Does the Deputy put it to the House that only 23 cases would fall for consideration under the old schedule if amendment 12 is carried? Amendment 13 means that "the amended schedule shall cover every case in respect of which no claim was submitted to the amalgamated company before"—would he again say if that was passed there would be only 23 cases?
There might be private cases we know nothing of.
I put it to the Deputy that there are almost over 340 cases which would be adjudicated under the old schedule. Amendment 12 or amendment 13 if passed would include pretty well every case on the amalgamation issue.
Would the Minister say that since the date of publication of this measure all these cases have been rushed in anticipation of their being dealt with by the arbitrator under the existing law?
I should say over 100 cases have been rushed in.
So far as I am concerned, and I am in fairly intimate touch with the solicitor of our own organisation, I say, and this list which the Minister has of the biggest organisation of railwaymen is proof, that nothing has been done to rush the hearing of cases since the publication of this measure. We took the view that if the measure passed in its present form it would be useless for organisations representing railwaymen to spend money in legal costs in bringing forward their cases. I can give the House an assurance that no attempt whatsoever has been made to rush cases, especially in view of the fact that we were aware that the arbitrator had resigned and no one had been appointed in his place. I am putting it that genuine cases that would come up in the ordinary way under the old law are the only kind of cases I want protection for under this Bill. There is a list of 23 cases cited by the National Union of Railwaymen, which is the biggest organisation catering for any branch of the Irish railway service. As I have said, there are only a few cases so far as the Railway Clerks' Association is concerned. I am not in a position to say how many, but I know there are only a few cases concerning the Amalgamated Union of Locomotive Engineers and Firemen. It is for the House now to say if it will allow the Minister to qualify the undertaking given by him on the Second Reading Stage.
I quote to the House a case since the publication of this measure. The Secretary of the Railway Clerks' Association, Senator O'Farrell, saw the General Manager of the Southern Railways Company for the purpose of securing an agreement. Senator O'Farrell acted on behalf of the Railway Clerks' Association, and on behalf of a member of the Union who felt he had not been given a position analogous to the one he held in the old absorbed company. The General Manager came to an honourable agreement or understanding with Senator O'Farrell, who conveyed the result to the individual concerned, but since the publication of this measure, some time in the middle of April, the General Manager has gone back completely on the understanding arrived at with Senator O'Farrell, simply and solely, in our opinion, because of the wording of this measure. He thought that the wording of this measure if it were passed into law would deprive the member of rights he was entitled to under the old Act. I will give the Minister the name of the individual concerned, and a copy of the correspondence that has taken place in regard to that case. I think the Minister should not bring into the Bill a section of this kind, which would prevent an agreement such as I have referred to being carried out, as it should be, in an honourable way. I entirely object to, and protest against, the insertion of this section. I think there is room for compromise in this, but certainly we cannot have any compromise or understanding after the date inserted, namely, the 26th March.
If I were disposed to consider any amendment that could be moved at this stage, and that would be likely to meet the case in a most reasonable way, I would say Amendment 18 is the only amendment suitable. Of course, the date would need to be altered. I will give the Minister credit for giving inspiration to the printer when he placed in the marginal column the 26th May instead of the 26th March, as suggested by Deputy McGoldrick.
I am afraid I must claim credit for that.
Deputy Davin has quoted me once or twice with regard to retrospective legislation. I should say that my objection to retrospective legislation is an objection to re-opening issues that have been decided either by a court of law, by the Land Commission, or by an arbitrator. That is my chief objection, because it creates a condition of instability that is completely injurious to all progress and to all security.
This amendment of Deputy Johnson raises a question, not of principle, but of expediency. I would like to learn from the Minister why we should take the date of the introduction of the measure as the datum date. It is the custom—and very rightly and wisely the custom—to give every measure that is introduced in the Dáil a First Reading in order that Deputies may see what its contents are. I suggest the datum date should be on the Second Reading. It is on the Second Reading that the Dáil adopts the principle of a measure, and in my opinion the Second Reading should be taken as the datum date and the date by which agreements should be determined, unless there is some other consideration.
On this point I think there is another consideration, and that is the resignation of the arbitrator. I think it is not unfair to say that disputes which were pending before the old arbitrator should be judged under the old conditions. The Minister has stated that the arbitrator resigned on the 1st May. There is not an enormous difference between the 26th March and the 1st May.
Not with regard to awards. I stated to Deputy Davin that the last award was pronounced by the arbitrator on the 25th March.
But as regards the number of cases lodged, which were not dealt with by the arbitrator, is it of sufficient importance to justify violent contention on this point?
Decidedly.
The Minister will probably deal with that matter in the course of his reply. Deputy Johnson's offer to accept the 1st May as the datum date seems to me—not having heard what the Minister has to say— a fair one and, unless there are very strong considerations opposing it, I would urge the Minister to accept it.
May I clear up a point of doubt? The issue between the Minister and ourselves is not so much the date; that is capable of adjustment. I cannot imagine that the Minister is insisting that in future agreements that are made by the company, or decisions made by the arbitrator, shall be under the new provisions where the issue raised, the claim lodged, and the appeal made to the arbitrator were in respect of a dismissal or a reduction of salary or something of that kind long before this Bill was brought forward. Otherwise you are inviting litigants to hold up the processes of law as long as possible in the hope that they may be able to induce legislators to pass legislation which will prejudice in their favour judges' decisions in the future.
The case we make here is that the company deliberately held up proposals for agreement and, as a consequence, the arbitrator's hands were tied and his opportunities for arriving at decisions were delayed by the conscious and deliberate action of the railway company. That being the case, it is no use altering the date, because if the company continue to refuse to come to an agreement, and if the appointment of a new arbitrator is to be delayed, or if his sittings are going to be prolonged, then no change is made.
My contention is that the date of dismissal, the date of reduction in salary, the date on which a change is made in the railway servants' position —the date of the happening of the event, as we phrase it in the amendment—should be the date, and if that date is the 26th March, the 26th May, or the date of the passing of the Act, then I say those dates are comparatively immaterial. The important date is the date of the event which gave rise to the claim, or, if you like, the date of the lodging of the claim, and not the date of the agreement or the decision of the arbitrator which is deliberately prolonged.
I wish to support the amendment moved by Deputy Johnson and supported by Deputy Davin. It is very unfair that the claims already lodged with the arbitrator should come within the scope of this amending Bill. When a debate took place on Deputy McGoldrick's proposal on the Committee Stage various points of view were expressed as to the matters involved. The Minister, in the course of his statement, said: "I think it will be obvious to the Dáil that you cannot possibly have Deputy Doyle's amendment as it stands because it would allow of appeals being lodged any time before the passing of the Act." The case I wanted to make was that whatever method was arranged for the lodging of claims for compensation, they were taken in such order that, in the case of a number being grouped, only one case was dealt with, although they were all lodged on the one date. Consequently, if the date is now fixed it will naturally affect these applications.
I think that what the House is trying to arrive at is some principle on which to act in cases of the kind under discussion. We have had two or three examples where Ministers brought in legislation, and in one of these cases the Bill was withdrawn by the Minister in recognition of the feeling in the House that retrospective legislation was not desirable if it could at all be avoided. On the second occasion we had the Rent Restrictions Act. Pretty much the same sort of consideration was put before the House in that matter when it was claimed on behalf of house-owners, and cases were cited that grave injustice had been done. Still the House in its wisdom would not deal with cases which had occurred before the introduction of the measure. Following the line that induced the House to come to the decision they did in these two cases, when this Bill was in Committee, it was decided that the operations of the amending Bill should be only retrospective up to the date of the introduction of the Bill. Deputy Johnson brings forward a case where applications were lodged some considerable time ago to be heard before the arbitrator, and on the ground that there was delay in bringing them before the arbitrator the contention is advanced that they should be included under the operations of the old Act and not under the operations of this amending Bill.
I cannot agree that that is sound. I can quite follow the arguments that people who lodged their claims, as long ago as May or November last year, would feel they have a grievance. But I cannot see that this House, without upsetting all the decisions that have been come to in connection with this matter, can decide that cases that have not been heard must be heard under legislation which is dead. This amending Bill is brought in to amend the original Act under which, up to a certain point, the decisions were governed. What induced this amending Bill to be brought in? I take it that the reason for bringing this amending Bill before the House is based on the assumption that the decisions come to by the arbitrator were not such as were originally intended in connection with the Act.
The House, in passing an amending Bill, rather accepts that position. Therefore, as regards the cases that were heard, we may assume that the decisions had been come to, and that the people concerned got the benefit of them but they are decisions that are contrary to the reading that the House now puts upon the original Act by passing this amending Bill. Therefore, although there are people whose cases have not been heard who, undoubtedly, will feel they have a grievance, they will eventually get decisions on the basis of what this House says was the intention of the original Act. I think the amendment proposed by Deputy Johnson would cause as much litigation and difficulty as the state of affairs that arose out of the original Act. It would have to be decided whether the decision should have been come to before or whether it shall run right up to the time when the new arbitrator is appointed. I think, broadly speaking, the House must arrive at some fixed principle in this matter. I submit that the House having come to a decision on the original Act, quite recently, has either got to affirm that decision by making a similar decision in this Bill, or they are going to establish a state of chaos in which every individual case of this kind that might come up is going to be decided on a different basis. Ultimately that will cause additional chaos and there will be no governing principle whatsoever.
I want to ask—I am forced to do so as a result of what Deputy Hewat stated—was the Minister aware on 25th or 26th March that it was the intention of the arbitrator to resign, and are we to understand that it was only a formal matter, the handing in of this resignation of 1st May? I would also like to ask did the Minister himself, or his Department, take effective steps to get in touch with the Chief Justice to see that a new arbitrator was appointed after the date of 26th March or the 1st May.
I will answer the last question first. I cannot say whether the date of the actual resignation was the 1st of May. It was some time in May, and not later than the 3rd. Of that there cannot be very much doubt. It was the 1st, 2nd or 3rd of May that the arbitrator resigned. I was given to understand that on a date, somewhere about two days from the actual resignation, the company received word from the arbitrator that he was going to proceed to hear cases. I do know, prior to that, certainly not 25th March, but somewhere in the early days of April, the arbitrator had talked of resignation. As to steps taken by me I have nothing to do with the arbitrator and nothing to do with his appointment. I have not even to initiate anything in connection with his appointment.
Are we to understand that no steps were taken, and that nothing will be done to appoint a new arbitrator until this measure goes through and the cases of men which have been pending for some time will be prejudiced?
I cannot say anything about that. I am asked if I had taken any steps in reference to the appointment, and I say, no. I have no business to take any steps with reference to the appointment. It was outside my duty to make representations to the Chief Justice or to the railway company or to anybody in connection with the appointment of the arbitrator.
Now, on this matter of retrospection and the promises I made I was very glad to get Deputy Cooper's statement to-day, because Deputy Gorey and Deputy Hewat previously gave their statements about the promise to withdraw Section 6. Deputy Gorey said the last day what Deputy Cooper said to-day, that his objection was to upsetting cases which were already decided. Deputy Hewat came to the same decision, and said much the same thing. That is all I have to say in regard to retrospection. I had very clearly before my mind in the original Railways Act that the date of the whole Third Schedule had been put back to the 3rd April, 1924, in a Bill which did not pass the Oireachtas until the end of July of that year. As regards all the benefits under the Schedule in so far as there was any question of date concerned, the date was put back to the date of the introduction of the Railways Act.
Would not the statements of Deputies Gorey, Cooper and Hewat mean, if there was an arbitrator sitting, the upsetting of any decision arrived at before the passing of this amending Bill?
No. Deputy Gorey referred to decisions made.
If the arbitrator continued to sit, the decisions would be made on the basis of the existing law previous to the passing of this amending Bill.
Deputy Gorey was speaking on Second Reading. On the Committee Stage he referred to the objection that he had taken on Second Reading to what was called vaguely retrospective, and he analysed it and gave as his meaning that he would consider it retrospective if the Bill upset decisions then arrived at; that is to say, on the date of Second Reading. If you want the date that Deputy Gorey was obviously referring to, I think Deputy Cooper has spoken distinctly here of the date of Second Reading. Deputy Cooper makes the distinction that inasmuch as nobody knows anything about a Bill when leave to introduce it is given you could not really be said to have had notice of what is in it. People do not know how their rights are going to be affected until the Second Reading comes and until the Bill is produced in public for the first time. I did consider that this whole retrospective matter had been properly dealt with. I think Deputy Davin himself has shown how absurd it would be to let this run in the ordinary way, and to have the date of operation be the date of the passing of the Bill. The Deputy has said that ordinarily speaking the operation of the Bill dates from the date on which it is signed. In view of the number of cases lodged, if the Bill were to operate from the date of the passing of the Act it would be absurd. You might as well tear up the amending Bill. Every case that could possibly come on has been listed.
If the company does not sack any more men they would not come on.
There are already 337 cases.
How many individuals were sacked or forced out of the service of the company since the 26th March?
That I have not got.
I think you should have got it, to be fair to all concerned.
What I am trying to answer is the question of the operation of the amending Bill. There are three amendments before us. I want to have them considered in their relation to cases. Amendment 12, if carried, would have it that the amended schedule would govern claims for compensation under the schedule in cases which arose subsequent to the 26th March. Any case which has arisen prior to the 26th March would be ruled by the old Third Schedule. Amendment 13 would read: "The Third Schedule to the Principal Act, as amended in this Act, shall govern every claim for compensation under the said Third Schedule in respect of which no claim was submitted to the amalgamated company before 26th March, 1926." Inasmuch as No. 13 is something definite and more easily understood, it is a better amendment. Amendment 18 is the one Deputy Johnson states he prefers. It states: "... if the date of the happening of the event giving rise to the claim occurred before the passing of this Act or in accordance with the provisions of the said Third Schedule." At the moment there are 337 cases lodged with the company. I am pretty certain that before 22nd April there were 235 applications lodged with the company. If the old schedule, by reason of any of these amendments, is going to be made apply to the 337 cases we have lost so much time in debating this amending Bill, because these 337 cases really do include most of the cases where the reason for dismissal is alleged to be mainly economy.
That is the reason why no arbitrator was appointed. The cases would not be heard until this Bill is passed.
That is to say, the Chief Justice has been deficient in his duty in not appointing an arbitrator between the 1st May and to-day— because he wanted to prevent cases being heard. It lies completely in the hands of the Chief Justice, but the Chief Justice cannot appoint until the resignation has been received. Deputy Cooper has talked about the date of the Second Reading, or some other date. Would Deputy Cooper take Section 6 as it stands:
"The Third Schedule as amended by this Act shall govern every claim for compensation in respect of which the amount of the compensation was not fixed either by agreement or by the standing arbitrator or arbitrators before the 26th day of March."
Really to put into that clause any date beyond 26th March makes no difference whatever. The last award made by the arbitrator was on the 25th March. There were certain awards made by the arbitrator on the 26th March, but they were not signed until some date in April. If the phrase accepted be "agreement made" or "decision of the standing arbitrator pronounced," it really does not matter whether it is the 26th day of March or any date up to the present day, because it has no effect. The number of cases is in no way increased. But for the rest of these amendments the wider of them, particularly No. 18, as it stands, would have the effect of simply tearing up the present Bill. If that is passed the amending Bill is actually no use, because the old schedule will apply to every case lodged with the company, and those cases at the moment number 337, and that number is believed to include pretty well every case that could come before the company about which any appeal could be taken at all.
Can the Minister say how many cases were awaiting hearing by the arbitrator when he resigned on the 1st May?
Cases awaiting hearing on the 1st May?
On the date of his resignation.
I cannot be precise but within one or two, certainly there would be 180.
What has all this squabbling between the amalgamated companies and the employees to do with the Dáil? What we were concerned about was the principle of retrospective legislation, that we could not establish that precedent. We were concerned with nothing else. We did not want retrospection where decisions had been given, but we are not called upon to decide these petty squabbles. Our only concern was that we did not want retrospection where decisions had been given.
Is this not retrospective legislation, the very thing you objected to?
I am referring to cases where decisions had been given.
Deputy Gorey and Deputy Cooper have explained their points of view and really these points of view seem to have met with approval except from the Labour Deputies. With regard to the Bill dating back to the introduction of the measure. if we accept Deputy Cooper's amendment, to the date of the Second Reading, once you have given notice of the intention to change, nobody can say where he has any rights, that he would have these rights no more. I am only giving the figures. Deputy Gorey is quite correct in saying that we ought not to be concerned with these cases. If there were only one or two cases it might be worth while, for the sake of harmony, to move forward, but I am simply pointing out—I cannot give the cases date by date—that if Amendment 18 can be carried, the 337 cases will be determined by the old Schedule. I should say in the future there will not be anything like a quarter of that number decided by the new Schedule in the seven year period. On the 22nd April there were 235 cases. I could not fit these into Amendments 12 and 13. I think the House should accept the principle which really was accepted on the Committee Stage, that the retrospective idea to which the Dáil objected was really wiped out, that we got away from the point of upsetting decisions, awards or agreements made. That position will be achieved by Section 6 as amended, by the amendment I have put down here.
Are we to take it that the principle the Ministry has put forward is that if a citizen under the existing law has a claim on the courts, if he lodges that claim in the courts and by persistent obstruction in the procedure of the courts he might delay hearing until he has been able to bring pressure on legislators to get new enactments passed, the new enactment must apply to the situation after the claim was lodged in the courts? That is the position, and I think it is not a reasonable one to put forward.
As that statement has been made, I must deny completely that there has been any evidence produced whatever of persistent obstruction on the part of the railway company. There have been many allegations but not a scrap of evidence produced in their support.
I have given evidence—the case of Michael Crowe. In the case of Michael Crowe notice was served on the company on the 10th May, 1925. After a delay of seven months the company refused to make any agreement or to take any action.
All due to the railway company?
Yes.
Decidedly, no.
Notice was then served on the solicitor to the company in December, and still no action was taken, still no agreement was arrived at. If that is not obstruction——
When you prove obstruction entirely due to the railway company, certainly, but that I entirely deny.
Amendment put.
The Dáil divided: Tá, 15; Níl, 38.
Tá.
- Seán Buitléir.
- Séamus Eabhróid.
- David Hall.
- Tomás Mac Eoin.
- Tomás de Nógla.
- William Norton.
- Ailfrid O Broin.
- Tomás O Conaill.
- Aodh O Cúlacháin.
- Liam O Daimhín.
- Eamon O Dubhghaill.
- Peadar O Dubhghaill.
- Domhnall O Muirgheasa.
- Tadhg O Murchadha.
- Pádraig O hOgáin (An Clár).
Níl.
- Earnán Altún.
- Pádraig Baxter.
- Earnán de Blaghd.
- Seamus Breathnach.
- Próinsias Bulfin.
- Séamus de Búrca.
- John Conlan.
- Liam Mac Cosgair.
- Séamus Mac Cosgair.
- Seán MacCurtain.
- Pádraig Mac Fadáin.
- Patrick McGilligan.
- Risteárd Mac Liam.
- Seoirse Mac Niocaill.
- Liam Mac Sioghaird.
- Patrick J. Mulvany.
- Martin M. Nally.
- Michael K. Noonan.
- Peadar O hAodha.
- Máirtín O Conalláin.
- Máighréad Ní Choileáin Bean
- Uí Dhrisceóil.
- John Good.
- Thomas Hennessy.
- John Hennigan.
- William Hewat.
- Patrick Leonard.
- Séamus O Dóláin.
- Mícheál O Dubhghaill.
- Eamon O Dúgáin.
- Seán O Duinnín.
- Donnchadh O Guaire.
- Aindriú O Láimhín.
- Fionán O Loingsigh.
- Domhnall O Mocháin.
- Séamus O Murchadha.
- Máirtín O Rodaigh.
- Seán O Súilleabháin.
- Nicholas Wall.
Tellers.—Tá: Deputies Morrissey and Nagle. Níl: Deputies Sears and Dolan.
Amendment declared lost.
took the Chair.
I move:—
In page 5, Section 6, to delete all words after the word "which," line 3, up to and including the word "arbitrators," line 5, and substitute the words "no claim was submitted to the amalgamated company."
The subject matter of this amendment was covered by the discussion that took place on the previous amendment. I think it is only fitting that Deputies—those who were absent, as well as those who were present—should get an opportunity of putting on record what they mean when they say they object to retrospective legislation.
Amendment put.
The Dáil divided: Tá, 15; Níl, 40.
Tá.
- Seán Buitléir.
- Séamus Eabhróid.
- David Hall.
- Tomás Mac Eoin.
- Tomás de Nógla.
- William Norton.
- Ailfrid O Broin.
- Tomás O Conaill.
- Aodh O Cúlacháin.
- Liam O Daimhín.
- Eamon O Dubhghaill.
- Peadar O Dubhghaill.
- Domhnall O Muirgheasa.
- Tadhg O Murchadha.
- Pádraig O hOgáin (An Clár).
Níl.
- Pádraig Baxter.
- Earnán de Blaghd.
- Séamus Breathnach.
- Próinsias Bulfin.
- Séamus de Búrca.
- John Conlan.
- Máighréad Ní Choileáin Bean
- Uí Dhrisceóil.
- John Good.
- Thomas Hennessy.
- John Hennigan.
- William Hewat.
- Patrick Leonard.
- Liam Mac Cosgair.
- Séamus Mac Cosgair.
- Seán MacCurtain.
- Pádraig Mac Fadáin.
- Patrick McGilligan.
- Risteárd Mac Liam.
- Seoirse Mac Niocaill.
- Liam Mac Sioghaird.
- Patrick J. Mulvany.
- Martin M. Nally.
- Michael K. Noonan.
- Peadar O hAodha.
- Máirtín O Conalláin.
- Séamus O Dóláin.
- Tadhg O Donnabháin.
- Mícheál O Dubhghaill.
- Eamon O Dúgáin.
- Seán O Duinnín.
- Donnchadh O Guaire.
- Mícheál O hIfearnáin.
- Aindriú O Láimhín.
- Fionán O Loingsigh.
- Domhnall O Mocháin.
- Séamus O Murchádha.
- Máirtín O Rodaigh.
- Seán O Súilleabháin.
- Liam Thrift.
- Nicholas Wall.
Tellers.—Tá: Deputies Morrissey and Nagle. Níl: Deputies Dolan and Sears.
Amendment declared lost.
I move:—
In page 5, Section 6, lines 4 and 5, to delete the words "either by agreement or by the standing arbitrator or arbitrators," and substitute the words "by agreement made or decision of the standing arbitrator pronounced."
The effect of this amendment is as I explained previously.
Amendment agreed to.
I move amendment 15:—
In page 5, before Section 7, to insert a new section as follows:—
(1) The standing arbitrator or board of arbitrators shall have power to administer oaths or take the affirmations of the parties and witnesses appearing, to make such interlocutory orders by way of discovery as can be made by a Judge in an action in the High Court, and to award costs in his or their discretion and direct to and by whom and in what manner these costs or any part thereof shall be paid. All such costs shall at or after the appeal be referred to taxation to the same officers and in the like manner and upon the like scale as the costs of an action tried by a Judge of the High Court.
(2) The parties and all persons claiming through them respectively shall, subject to any legal objection, submit to be examined at the appeal on oath or affirmation in relation to the matters at issue and shall, subject as aforesaid, produce before the standing arbitrator or board of arbitrators all books, deeds, papers, accounts, writings, records and documents, within their possession or power respectively which may be required or called for, and do all other things that the standing arbitrator or board of arbitrators may require.
(3) The standing arbitrator or board of arbitrators may at any time correct any mistake or error in an award arising from any accidental slip or omission.
(4) The standing arbitrator or board of arbitrators may state an award, as to the whole or part thereof, in the form of a special case for the opinion of the High Court, and may at any stage of the proceedings state in the form of a special case for the opinion of the High Court any question of law arising in the course of the proceedings and any party may appeal to the High Court from any refusal of the standing arbitrator or board of arbitrators to state a special case.
(5) Any party to an appeal before the standing arbitrator or board of arbitrators may sue out a writ of subpoena and testificandum or a writ of subpoena duces tecum, but no person shall be compelled under any such writ to produce any document which he could not be compelled to produce on the trial of an action.
(6) Any award of the standing arbitrator or board of arbitrators may, by leave of a Judge of the High Court, be enforced in the same manner as a judgment or order to the same effect.
(7) The standing arbitrator or board of arbitrators shall sit in open court; and every appeal shall be entered in the "Legal Diary" for hearing at such time and place as the standing arbitrator or board of arbitrators may determine.
This amendment was put down for the Committee Stage, and the Minister promised to give consideration to the idea expressed in it. He has put forward, in the name of Deputy Dolan, an alternative, seeking to embody most of the propositions contained in my amendment. But from my point of view, there is one considerable defect. That is, when an award has been made by the arbitrator, if the company are recalcitrant, as judging by their recent action they may well be, it will require that the applicant must go to the courts to get a judgment before the arbitrator's award can be enforced. That is simply adding to the trouble and to the cost laid upon the applicant. My proposal sought to avoid the necessity for such an appeal to the courts. I do not know whether that is possible, within the Minister's idea of what the powers of the arbitrator should be, but I think it is a very grievous defect that an applicant who has had an award made may be obliged to go to the courts for formal judgment and incur the delay and risk which are always possible under the law and the expense involved, whereas the proposition that I put forward would ensure that the arbitrator's judgment itself would have the effect of a judgment of the court.
If amendment No. 15 be compared with the amendment now down in the name of Deputy Dolan, the difference can quite easily be seen. Some points were dropped for one reason, and some for another. Deputy Johnson stated, with regard to Amendment 15, when previously moving it in Committee, that it was to give the arbitrator here such powers as an arbitrator in England would have under the General Arbitration Act of 1894 or 1899. When that was examined, we found that there were certain things in this amendment about interlocutory actions which, with the whole of Section 5, were not, in fact, given under the General Arbitration Act, to which reference was made. There was this further consideration given to the matter. The Arbitration Act to which Deputy Johnson had referred was one drawn up to meet all cases of arbitration, and if there were special regulations being made with regard to railway arbitration, viewing the special types of cases that might fall for discussion before such an arbitrator, undoubtedly all the things that were put into the General Arbitration Act would not have been included. There was then considered what would be necessary in order to leave the arbitrator fully armed with all the powers that seemed requisite for the matters likely to come before him. The amendment in Deputy Dolan's name seems to meet that.
Deputy Johnson raises the point—to put it in another way—that Section 6 of Amendment 15 has been left out and has been substituted in part only by Section 4 of Amendment 16. Section 4 seems to be the only material point— to allow a person who had got an award to have some way of recovering that award if the railway company proved intractable. In answer to Deputy Johnson, I may say there has been no case in which the railway company failed to meet an award. I am afraid Deputy Johnson is still under a misapprehension as to the litigation that took place on one point. That had not to do with failure to meet an award made by the arbitrator. It was a mixed question of superannuation and award, and it was the superannuation question that was really litigated. The Deputy objected to Section 4 of Amendment 16, because it would cause further expense to be incurred by the successful applicant in the case. But so would Section 6. Section 6 is not secured without expense, and Section 4 really gives as much as seems to be required by any applicant arising out of any arbitration that may come from the Railways Act of 1924, as amended by this Bill. The only point in issue is the question of recovering the money. It is set down here that it shall be a simple contract debt, recoverable by action at law, and that covers such matters as costs going against the person unsuccessful, and it covers a further matter. If we are to take Section 6, the case is thrown definitely into the High Court, whereas if it is dealt with in this way, then according to the amount of the debt the appeal to a different court will lie, and corresponding to whatever court has to be resorted to, will be the question of costs. This is an attempt to meet any situation that is likely to arise and to minimise the expense.
There is one change that will have to be made in Amendment 16, if I am at liberty to refer to it on this amendment. At present sub-section (1) refers to "the standing arbitrator or board of arbitrators," and then in the last two lines it seems to refer only to "the arbitrator," so that a grammatical change will have to be made. The words will have to be changed to "given to his or their satisfaction" to cover the case of the arbitrators, and the last words will have to be "before him or them." With that amendment made, I put it to Deputy Johnson that Amendment 16 really meets most of the points he is seeking to deal with without the necessity of Section 6 of Amendment 15, which would not lessen any expense that might be incurred under Section 4 of Amendment 16.
Generally speaking, I think the amendment in the name of the Minister fairly well meets the demand that was put up, bearing in mind what we had under consideration at the time. There is one point, however, that I think it is right to draw the Minister's attention to. It is for him to say whether a change should be made in it or not. Under the existing conditions, the registrar and officials of the court, or the arbitrator's servants, are composed of officials of the railway company.
resumed the Chair.
I am not saying that anything has happened, or is likely to happen, which will in any way involve the reputation of the officials who are acting up to the present but, like the policeman in the play that we have witnessed at the Abbey Theatre, you might as well say that the official in this case could come along and say: "Any statement that you make will be taken down and, if necessary, altered and used in evidence against you." That could happen so long as the officials of the court are in the service of the company. I am merely drawing the Minister's attention to this particular flaw both in Amendments 15 and 16, so that if he desires he may rectify it. So far as I know, the officials who are acting are quite honourable men. There may not be any necessity to make any alterations in the Minister's amendment, as it appears on the Paper, but it is not usual in a case of this kind to have the registrar of the courts the servant of the plaintiff or defendant, as the case may be.
Supposing one were to accept the position as stated by Deputy Davin, are we to proceed to take steps against any unfair use of the officials of the registrar by the company? That is not alleged by the Deputy. I do not think it can be done under an amendment which is really not dealing with the personnel round the arbitrator but with his award. The matter should be left as it is, and if it were found afterwards that there was a discrimination against one party in any arbitration it would be a matter to be referred to the Chief Justice and it would be left to the Chief Justice to regulate under the terms of the appointment that a condition should be attached that the officials shall be drawn from a source which the Chief Justice shall designate. I do not think we could amend an amendment dealing with the arbitrator so as to bring in the question of a staff or a clerk for the arbitrator. I think the Deputy had better leave it as it stands, and if any obvious unfairness arises later it can be dealt with.
Is it your opinion that the Chief Justice would have the power under the amendment to make an appointment of that kind?
The amendment has nothing to do with it, but if the thing arose, the Chief Justice, acting under sub-section (8) of the old schedule, should be able to make it a condition that the staff should be supplied to the arbitrator. As it is, the staff is supplied at the railway's expense, and thus it is a saving on the applicant. I think it had better be left alone until the necessity arises.
I will not press the amendment. I will ask the Minister if he will consider, before this Bill goes to the Seanad, whether it would not be to the general advantage to provide that the hearing of any cases shall be, as they would be, in an open court, and to leave it at that, as provided in the amendment in my name, because I think the proposition will be brought forward, perhaps in a slightly amended form, in the Seanad; I would ask the Minister to consider the question in the meantime.
Amendment 15, by leave, withdrawn.
I move Amendment 16:—
"Before Section 7 to insert a new section as follows:—
(1) The standing arbitrator or board of arbitrators shall have power to administer oaths, and to award costs in his or their discretion and direct to and by whom and in what manner these costs or any part thereof shall be paid, and to measure the amount of such costs and to require security for costs to be given to his satisfaction by any party at any stage of the proceedings before him.
(2) The standing arbitrator or board of arbitrators shall have the like powers of enforcing the attendance of witnesses and the production of documents as are possessed by the High Court.
(3) The standing arbitrator or board of arbitrators may at any time correct any clerical mistake or error in an award arising from any accidental slip or omission.
(4) Any sum payable under an award made by the standing arbitrator or arbitrators shall be a simple contract debt recoverable by action at law."
I want to make a slight alteration in amendment 16. Sub-section (1) has reference to the standing arbitrator or Board of Arbitrators. The last two lines read "to his satisfaction by any party at any stage of the proceedings before him." That should be made to read: "to his or their satisfaction by any party at any stage of the proceedings before him or them."
Amendment 16 as, by leave, amended, put and agreed to.
I move amendment 17:
In page 5, before Section 7, to insert a new section as follows:—
Every person entitled to an annual allowance as compensation under the Third Schedule to the Principal Act shall, so long as such allowance shall not have been wholly commuted, be entitled to receive payment of such compensation at such and the like intervals (calculated from the date of the event giving rise to his claim to compensation) as those at which his salary or wages were payable immediately before the occurrence of that event, and every award of compensation to be made by the standing arbitrator or board of arbitrators, shall give effect to this provision.
There is some doubt as to the order of the amendment, but I will hear Deputy Davin.
I thought this would be the type of amendment that would be brought in by the Minister in the ordinary way, and certainly it is one which I assume he will have no objection to. It is the custom in every case I know of for a superannuitant to receive his pension at the same time as he receives his salary. Under the Bill as it stands the company need only pay the amount annually, that is twelve months after the date of the decision of the arbitrator. If the Minister leaves the matter as it stands it will mean that considerable hardship will be imposed on the people who will get pensions in the ordinary way, that is provided the company only paid them annually.
The Act has reference also to annual allowances, and this amendment is somewhat contradictory in terms. The big difficulty would be that there always has to be verification in respect of the person in receipt of the annuity being alive. If there is going to be a weekly payment to a person in receipt of pay by weekly intervals and compensation also on that basis, and if that person went abroad, and certain people in receipt of annuities have gone abroad, inquiries would have to be instituted each week with regard to the existence of the person. That would throw an enormous extra burden on the railway company.
There is practically no such thing as weekly payment in cases of this kind.
Does the Deputy mean that there are no weekly payments made in the cases of railway servants who would be likely to get compensation under this Bill?
Practically none. Could the Minister say how many retired railway servants went abroad?
I could not; but I am informed that there were quite a number. I also understand that the intervals would vary very much— weekly, monthly, and so forth. There seems to me to be no good reason for adopting this proposal.
I just desire to say that a case was put up to me in which there was a delay in paying an award, and proceedings were about to be taken in the courts to enforce the payment of that award, but it was found that there was no right until twelve months had elapsed to claim any money, and so the party could not go to the courts to enforce the award until twelve months had elapsed. What is sought here is, that in making his award the arbitrator shall order that payment shall be made at such intervals as he would decide. I do not think that the question of period matters very much, that is to say, whether it is weekly, monthly, or quarterly.
I believe that it is the company's intention to pay quarterly.
At the present moment, according to law, there is nothing to oblige the company to pay until twelve months have elapsed.
That was the intention of the Oireachtas when the Act went through.
Would the Minister consult Civil Service precedent on this matter? When a civil servant gets a pension he is paid either weekly or monthly, and there should be no difficulty in this case. Perhaps the Minister would look into the matter before the Bill reaches the Seanad.
Is it not the ordinary practice of railway companies in the case of pensioners, apart from the operations of this Bill, to pay such pensions at whatever stated period the men were in the habit of being paid previous to their retirement?
The Deputy is quite right in regard to that, but these are generally old men who are not going to leave the country. Judging from what has happened already, that is not going to be the case with many of those who get pensions under this measure, and that is going to make a big difference. The suggestion of weekly or monthly payments is really absurd.
I think if the Minister will consult the company's officials he will find that he is taking a line that will not suit them.
Does the Deputy suggest that it would suit the company to pay weekly or monthly, according as the wages were paid?
Yes.
I have not got that view of the company's convenience. If that be the company's view there is nothing to prevent the company paying in that way.
Amendment put and negatived.
I move:—
In page 5, before Section 7, to insert a new section as follows:—
Every claim for the payment of a gratuity or of compensation arising under the Third Schedule to the Principal Act shall be determined by the amalgamated company or on appeal by the standing arbitrator or board of arbitrators in accordance with the provisions of the said Third Schedule as amended by Section 2 of this Act if the date of the happening of the event giving rise to the claim occurred before the passing of this Act or in accordance with the provisions of the said Third Schedule as amended by this Act if the event giving rise to the claim occurs after the passing of this Act.
Amendment put. The Dáil divided: Tá, 14; Níl, 39.
Tá.
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Seán Buitléir.Séamus Eabhróid.David Hall.Tomás Mac Eoin. Liam O Daimhín.Eamon O Dubhghaill.Peadar O Dubhghaill. |
Tomás de Nógla.William Norton.Tomás O Conaill.Aodh O Cúlacháin. Domhnall O Muirgheasa.Tadhg O Murchadha.Pádraig O hOgáin (An Clár). |
Níl.
|
Earnán Altún.Pádraig Baxter.Earnán de Blaghd.Séamus Breathnach.Próinsias Bulfin.Séamus de Búrca.John Conlan.Máighréad Ní Choileáin Bean UíDhrisceóil.Thomas Hennessy.John Hennigan.Patrick Leonard.Liam Mac Cosgair.Séamus Mac Cosgair.Seán MacCurtain.Pádraig Mac Fadáin.Patrick McGilligan.Risteárd Mac Liam.Seoirse Mac Niocaill.Liam Mac Sioghaird. |
Patrick J. Mulvany.Martin M. Nally.Peadar O hAodha.Seán O Bruadair.Máirtín O Conalláin.Séamus O Dóláin.Tadhg O Donnabháin.Mícheál O Dubhghaill.Eamon O Dúgáin.Seán O Duinnín.Donnchadh O Guaire.Mícheál O hIfearnáin.Fionán O Loingsigh.Domhnall O Mocháin.Séamus O Murchadha.Seán O Raghallaigh.Máirtín O Rodaigh.Seán O Súilleabháin.Liam Thrift.Nicholas Wall. |
Tellers:—Tá: Deputies Morrissey and Davin. Níl: Deputies Dolan and Sears.
Amendment declared lost.
The question is: "That the Bill, as amended, be received for final consideration."
Would the Minister answer this question for the information of Deputies? In the case of the non-existence of an arbitrator, the Minister has no power under the Act, and it is not his business to approach the Chief Justice with regard to the appointment of an arbitrator. Does the initiative lie with one of the parties to a dispute?
The Schedule states:
"If any existing officer or servant shall feel aggrieved by the decision of the amalgamated company on any matter to be determined by it under the foregoing rules, or if any dispute or question shall arise between any existing officer or servant and the amalgamated company on any matter arising under this Schedule, such existing officer or servant may appeal to a standing arbitrator or board of arbitrators appointed by the Chief Justice who shall hear and determine such appeal and whose decision thereon shall be final. The amount of the fee payable to such standing arbitrator or to each member of such board of arbitrators on any such appeal shall be fixed by the Chief Justice and shall be paid by the amalgamated company."
That does not state who is to initiate it, but the procedure in the case of the arbitrator who has just resigned was that the interested party, the applicant, took the initiative, and on that the Chief Justice made the appointment. I refused, when application was made to me previously, to have anything to do with the appointment of the arbitrator.
Would it not be a natural consequence of the resignation of the arbitrator that the Chief Justice should make an appointment in his place without waiting?
I am afraid that the Minister cannot answer that question.
As long as one of the parties can compel the Chief Justice to appoint an arbitrator, I am satisfied.
Question—"That the Bill, as amended, be received for final consideration"—put and declared carried.
Fifth Stage ordered for Monday, 31st May.