I propose to ask the Dáil to agree with this amendment. In view of its nature I do not think there will be any objection to taking it now.
Road Transport Bill, 1935—From the Seanad.
Amendment inserted by the Seanad:—
New section. Before Section 5 a new section inserted as follows:—
(1) Section 63 of the Principal Act is hereby amended in the following respects and shall be construed and have effect accordingly, that is to say:—
(a) by the substitution in clause (i) of paragraph (a) of the said section of the words "and was continously employed (whether such employment commenced before or after the grant of such licence) whole-time, for a period of five years ending on the day preceding the critical date in the operation of the said vehicles, either by such licensee or by such licensee and his predecessor or predecessors in title to such business" for the words "and was so employed continuously for a period of five years ending on the day preceding the critical date" now contained in the said clause;
(b) by the substitution in paragraph (b) of the said section of the words "(whether such employment commenced before or after the grant of such licence) whole-time, in the operation of the said vehicles, either by such licensee or by such licensee and his predecessor or predecessors in title to such business" for the words "whole-time by such licensee in the operation of the vehicles used for the purposes of the business authorised by such licence to be carried on" now contained in the said paragraph;
(c) by the substitution in paragraph (c) of the said section of the words "either by such licensee or by such licensee and his predecessor or predecessors in title to such business" for the word "by such licensee" now contained in the said paragraph.
(2) This section shall have and be deemed to have had effect as from the passing of the Principal Act.
What is it?
The original Act provided that where a transport undertaking was acquired by a railway company or tramway company any worker who was not taken into the employment of the acquiring party and who had five years' service was entitled to compensation. It was subsequently held that where a change had taken place in the ownership of the business within five years the worker was prevented from getting that compensation. For example, there was the X Omnibus Service which, shortly before the acquisition of the service by the Tramway Company, became the X Omnibus Company. That change was apparently held to deprive workers who had five years' service in the business from getting compensation. It is, therefore, proposed to amend the Act to give expression to what was the intention, namely, that where a worker had five years' service in the business compensation rights attached to him.
Will the Minister tell us where it was held that, say, an individual proprietary concern becoming a company broke the continuity, because the reverse has been held in about eight cases?
There was some case in which it was held. In any event, it is desirable that the doubt should be removed.
Will the Minister read the text of the amendment, as I have not got it with me?
The words in Section 63 of the original Act were:
And was so employed continuously for a period of five years ending on the day preceding the critical date.
That is being changed to:
And was continuously employed (whether such employment commenced before or after the grant of such licence) whole-time, for a period of five years ending on the day preceding the critical date in the operation of the said vehicles, either by such licensee or by such licensees and his predecessor or predecessors in title to such business.
I suggest that this might be held over for further consideration for this reason, that, so far from what the Minister says being the case, the exact opposite is the case. On the point the Minister put by way of an example, that continuous employment could only be got by adding together services with a proprietary concern which, later on without any change in the articles of association other than a change of name, became a company, that was held quite definitely to be continuous service. But in connection with this, it has been held that the continuous service must be in the operation of vehicles. So that you get this peculiar condition, that if the tramway company after acquiring a concern can show that there was a man employed with a company which had four licences, who had been for two years employed on one of the routes, and for three years on other routes with different vehicles because they were in a different part of the same licensed group the continuity does not hold. This amendment does not meet that.
It does.
How does it come that he was whole-time in the operation of said vehicles? It has been brought down to this. I do not know whether the case has been decided, but the judges have ruled that if it could not be proved that a man was in vehicle No. 1 of four vehicles it could not be held that he was employed continuously. A man may hold four licences, one between A and B routes, and the other three between X and Y routes and if there are different vehicles, although employed by the same company, it may be held that he was not continuously employed. The phrase "whole-time" is used here. It is an obiter dicta of the judges that if it can be proved that a person is not engaged for the whole of a working day in relation to this licence there will be no compensation. Surely there ought to be a change in regard to that. Suppose you have a garage hand where the company has vehicles running on different routes which they took over. If a person is engaged a quarter of a day on one set of vehicles, on one route, and another quarter of a day on another, that might be held not to be in continuous employment. The phrase “whole-time in the operation of the said vehicles” is not to apply, for instance, to clerical persons, clerks, typists, and other such employees. There are three points to be met and I do not think they are met. One the Minister thought was met and decided but the other two were not decided.
If the Deputy wants a postponement of this, well and good. But so far as I am concerned this amendment met the representations made to me by the labour interests involved.
May I put this to the Minister? Take the case of a man disemployed for any short period— three or four weeks or two months. Such cases as these have been very unsatisfactorily dealt with. A man, say, is working for X company and when a transfer takes place he is not immediately employed. It might be a couple of months before he is taken on. Several such cases as that have been brought to my notice and they are not covered.
Take the case of a man whose employment is interrupted in respect of an accident. The man may be perfectly innocent. The bus may be taken off the service for repairs and the man's employment is interrupted. By reason of an accident over which he had no control an interruption of that sort would seem to be rather severe upon the man.
The term used in the Principal Act and here is "continuously employed."
It means more than that. It means continuously employed on the critical day. Suppose he is not employed on the critical day, and the critical day is the day the company makes application. The critical day is not the day of the transfer of licence but the day on which the company makes application. The company has it in its own control and selects the best and most suitable day from its own viewpoint. I am sure the Minister will agree that as long as he continues the phrase "whole-time for a period of five years ending on a day preceding the critical date in the operation of the said vehicles" it inevitably confines judges in their decisions to the vehicles operated under the particular licences.
The intention is obviously to ensure that compensation will be paid to people on the transferred staffs engaged in the operation; not people engaged in some other business.
The Railway Act of 1934 made allowance for people who spent the greater part of their time on the railways; there was no question of whole time. The point here at the moment is that as long as this whole thing pivots on the words "in the operation of the said vehicles" then under the conditions under which the licence is given there is grave fear of injustice. A man gets four licences and he operates these between different terminal points. His bus is operating mainly on one route, and not on another, and when the judge comes to examine the case he will examine it with a view to finding whether the man is employed for a period of five years in the operation of these vehicles. One case turned on such a narrow point as when the man said: "I was transferred from one company to another. I was an inspector. It was natural to suppose I would be inspecting the route I knew best." If he had to prove that he was on the same vehicle he could not have done so. So long as you are tied to the vehicle and to the vehicle operating over a particular route it is going to be very hard to decide the matter aright.
I am quite willing to leave it over.
There is no use leaving it over if no consideration is to be given to it. There are cases coming on at once.
This is retrospective.
But if it is not in the Act by Wednesday a case may be decided.
Yes, but the amendment will have a retrospective effect.
If a case comes up before a judge on Monday this is not law and I would rather have it law.
Why not get the case adjourned if it comes up on Monday?
Sometimes you might succeed but the Tramway Company are not so soft as all that.
Ordered: That the further consideration of the amendment be postponed until Tuesday.