With regard to the next amendment, it would be better if amendment No. 13 were moved first, and amendments Nos. 12 and 13 discussed together. If amenedment No. 12 were carried, amendment No. 13 could not be moved.
Committee on Finance. - Shop Assistants (Conditions of Employment (No. 2) Bill, 1937—Committee (Resumed).
Notice taken that 20 Deputies were not present; House counted and 20 Deputies being present,
On behalf of Deputy Fitzgerald-Kenney, I formally move amendment No. 13:—
In sub-section (1), page 5, line 24, after the word "sister" to insert the words "nephew, niece".
I move amendment No. 12:—
In sub-section (1), lines 23 to 25, to delete the words "or is a son, daughter, grandson, grand-daughter, stepson, step-daughter, brother, sister, half-brother or half-sister of such proprietor".
In the Bill as it stands there is a very wide definition of relatives who are excluded from the provisions of the Bill, and it seems to me that the relatives of small shopkeepers require the protection of this Bill just as much as other employed persons. In previous shops legislation, in the 1912 Shops Act, for instance, the only exclusion was the family of the shopkeeper, resident, I think, on the shopkeeper's premises, or something to that effect. In this case, relatives are exempted to a large extent, and I think there is a strong case for limiting the number of exemptions. The reason the amendment suggests cutting out the younger generation from the exemption is that while there might be a case for the old people hanging about the shop day and night, there is a case for limiting that in respect of the rising generation, or the younger relatives. I do not see why the relatives of the shopkeeper should not be put on the same footing, so far as this Bill is concerned, as shop assistants. Apart altogether from the merits of the case in respect of the shopkeeper's family, there is the other consideration that a shopkeeper who is getting his work done by his own relatives is in competition with another shopkeeper who has to employ persons from outside, and has possibly an advantage and, therefore, making all the conditions in the Bill more difficult of enforcement. I think there is a strong case for limiting the number of relatives exempted.
My amendment goes quite the other way. My suggestion is that it is a very ordinary thing for persons in business to get up relatives and train them in that business. They are really adopted children, and they become members of the family, and, according to the Bill, if they are living in the house with their relatives, they are really in the same position as children. I submit that if a nephew or niece comes up to live with an uncle or aunt in Dublin, he or she should be regarded in exactly the same way as the son, daughter and others whom the Minister has in his Bill.
It is very hard to say with any degree of certainty where we should draw the line in the exclusion of relatives of a shop proprietor from the scope of the measure. It is, I think, desirable on general grounds to exclude from the scope of legislation of this kind the immediate relatives of an employer, where those immediate relatives are maintained by the employer and reside with him in his premises. That is what we set out to do by this sub-section of Section 2. The particular definition of "relative" which we have embodied here is taken from the Workmen's Compensation Act. Deputy Fitzgerald-Kenney may remember that he raised the question of nephews and nieces when the Workmen's Compensation Act was before the Dáil as a Bill, and the arguments I shall have to make against his contention are similar to the arguments I made on that occasion. I do not think we should go so far as to carry the exemption of persons to that degree of kindred. It is, I think, not unusual for licensed premises' owners to go to quite considerable pains to hunt up relatives for the purpose of avoiding the obligations which would otherwise rest upon them in respect of the conditions of employment enforced by the trade union catering for the class of worker employed in licensed premises, and I fear that a somewhat similar state of affairs might develop if we were to extend the degrees of kindred set out there to any extent. It might well lead to shopkeepers in various parts of the country dispensing with the services of existing employees for the purpose of replacing them with nephews and nieces, and thus avoiding altogether the obligations imposed on them by this Bill in relation to the conditions of employment of those who work for them.
At the same time, I do not think we should go as far as Deputy Heron would have us go, and exempt from the definition in the Bill such persons as sons, daughters, grandsons, granddaughters, or brothers or sisters. We have any number of sons, daughters, brothers and sisters, half-brothers or grandsons, and where they are residing on the same premises as the employer, and are maintained by him, I think we can regard them as being so intimately associated with the ownership of the business that it is inappropriate to apply to them the various conditions which would otherwise be applied by placing on employers the obligation of giving these people certain annual holidays and other benefits, or to give them power to go to the Wages Board to have wages defined and so on. I appreciate that this is somewhat a difficult point, but I think we can take immediate relatives of an employer who reside with him and put them into a different category from the ordinary employees. We are really setting out to deal with conditions of the ordinary employee, the man who is selling his labour for wages, and who has no other intimate relationship with the employer than the contract of wages. It is for such persons the Bill is designed.
If there is any point to be made that abuses might arise, or that certain special advantages might be secured to particular employers by giving employment, to immediate relatives only, we could deal with that by amendment of the appropriate section. Wherever such questions as the employment of juveniles arise, or where orders are made limiting the number of juveniles in a shop in relation to adults, we take into account as adults persons who may be relatives of the proprietor working on the premises. In relation to this section, any appropriate suggestion of that kind can be considered. I doubt if it would be wise to adopt the course suggested by Deputy Heron, or the alternative suggested by Deputy Fitzgerald-Kenney. We have a definition here of "relatives" which has, at least, the sanction of precedent, in so far as it appeared in other legislation and it emerged as a result of long discussion when that legislation was being enacted.
It is necessary to bear in mind that the mere fact of relationship between a proprietor and the persons concerned does not exempt the proprietor from the provisions of the Bill unless condition (b) also exists, that the relatives reside with the proprietor and are maintained by him. I think it is better to leave the definition as we have it. I know that it could be argued for a long time as to whether a half-brother, a granddaughter or a grandson should be in or out of the definition. In the last resource it seems to me, in the interests of common sense, that it would be unwise to do what is suggested by Deputy Heron or by Deputy Fitzgerald-Kenney.
In country districts, where small traders would not be able to employ a large number of assistants, their relatives would be employed. That is an advantage to them. It would be hard on them if restrictions were imposed.
The Deputy who has just spoken has given the real justification for the amendment. It is precisely to ensure that a shopkeeper who is a good employer will be treated on the same basis, by law, as the shopkeeper who is a bad employer and who exploits assistants, whether they are his own relatives or not, that the change is suggested. I find it difficult to see why a difference should be made when one is, so to speak, protecting human life. If life is made tolerable for shop assistants, why should it not be made tolerable for relatives in shops?
The shopkeepers cannot afford to pay them.
If they cannot afford to pay them they should shut the shops, and let the trade be done by those who can pay.
If you allow relatives to be outside the provisions of the Bill, that may give the person who does not employ assistants a definite advantage over those who do employ assistants. Most of us who are familiar with shops know the system that prevails in the country of relatives being taken into the business. Relatives are installed to carry on the business on the assumption that when the shopkeeper passes out a niece or a nephew will succeed to the business. For the next ten years that niece or nephew may be a positive drudge, and may be treated worse than a paid assistant would ordinarily be treated. Then, owing to the adverse conditions, the niece or nephew might simply have to walk out. From the other angle, in order to protect the relatives, they should be included and protected by this Bill.
Deputies will appreciate the practical difficulty of enforcing a Bill in relation to intimate relatives of an employer who reside with him. It could not be done. You can make a law saying that these people must work for 48 hours only but, in fact, they could not refuse to work certain hours, nor could you prevent them doing so. There would be no point in putting that into legislation, because it could not be observed. Bear in mind that they are intimate relatives living with the employer in his house.
There are three points to which the Minister might give further attention. The first point is outstanding, that an undue advantage is given to an employer who is able to carry on his business with the aid of those in the family circle, and they are excluded from the provisions of this measure. That employer has an advantage over competitors, and having that advantage, this measure may destroy something that it is endeavoured to bring about freedom for shop assistants that they never had before. If you are going to destroy that freedom there is no advantage gained by the Bill. As regards protection for relatives in the family circle, we know that employers who employ relatives, instead of being generous to them, take advantages that they could not take with strangers. It may be said that those inside the family circle could join a trade union in which they could obtain protection, but they are reluctant to join a trade union because they know it will bring the wrath of the employer on their heads. If relatives in the family circle leave that type of employment, outside employers are reluctant to employ them, believing that there is something against them. The Minister should take these points into serious consideration. For these reasons, I feel that it would be a disaster to allow such people to escape their obligations.
Listening to Deputy Lawlor and Deputy McGowan, one would think that the number of such nieces and nephews was inexhaustible.
It is not a small number.
The Deputy suggested that there would be an end to all employment for other people if nephews and nieces were allowed to work as members of a family when they were, for all practical purposes, adopted into the family by living in the place.
On a point of correction, I did not confine my remarks to nephews and nieces.
Then we had the other argument, that a person who has relatives is very much better off than a person who has not. Let us take the case of the farmer who has half-a-dozen sons. He is very much better off than his neighbour who has no sons. I wonder if the argument will be put forward from the Labour Benches that, in those circumstances, this farmer's sons should not be allowed to work on their father's farm, because in doing so it will mean giving the father an unfair advantage over his trade rivals.
Nobody suggested that a shopkeeper's son should not be allowed to work for his father. The only suggestion made was that his conditions should be reasonable, just as if somebody else was working for the father.
The condition can be left entirely to what the father considers for the good of the family.
And not the community.
Just in the same way as the farmer's son working for his father at 25/- a week.
Which he does not get.
According to the Labour amendments the whole country is being spoiled because he is getting it. I would remind the Labour Party that there is such a thing as the family. It is the natural unit and should be regarded as such.
I have a great deal of sympathy with the Minister's outlook on these amendments. I think you could argue up and down as to the degrees of relationship that ought to be included or excluded. It seems to me that not enough has been made of one point, and that is: why should not relatives get the same conditions as regards hours as shop assistants? Is somebody going to make the case that, under this Bill, the hours are absurdly short, and, therefore, that a man's relatives may quite easily work a while longer? It seems to me that shopkeepers who have relatives living with them and working for them are of two kinds. They may be generous people and treat their relatives in exactly the same way as ordinary employees; they pay them the same wages and give them the same hours of work. If that is done, I do not suppose that this Bill is intended to apply to those people.
In the case where people are possibly inclined to take their relatives at something less than their market value, it is entirely in a proprietor's hands to say what he will pay them, and, apparently, it is also left to him to say what hours he will work them. In my opinion a relative ought to be in no better and in no worse position than any other human being. The Minister has made the point that he cannot check that up in the case of relatives. I quite agree that that may be so in some cases, but if flagrant cases occur, and I suppose there are such where relatives are consistently worked longer hours than ordinary assistants, I imagine that in such cases some one will be found to come forward and give information. I do not think that this legislative body should take up the position that relatives are in any different position from that of ordinary employees. As to the number of hours worked, the treatment of both should be the same. The question of wages is a different one. I am not going to try to draw the line as to what relatives ought to be in or what relatives ought to be out, but, personally, I would like to see them on the same footing as other employees.
There must be some exclusion. When Deputy Lawlor was speaking of a shopkeeper employing his relatives, and in that way getting an advantage over his competitors, he drew a picture which might possibly appear occasionally in some area at some time, but it is not the typical picture that Deputies should consider. What Deputies should keep in mind when considering the amendment is the typical picture of Mrs. Mulligan, who runs a huckster's shop and who is assisted by her daughter, Miss Mulligan. If the House were to adopt the amendment to exclude sons and daughters from the definition section, then Mrs. Mulligan would have to put up an abstract of the Act for the benefit of her daughter, Miss Mulligan, and keep all records prescribed under the Act, and in all other respects would have to treat the daughter who assisted her as a salaried employee.
As a human being.
I do not know whether the relations between the average mother and daughter are human or inhuman.
Why take the case of Mrs. Mulligan? Is it because she lives in my constituency?
I take it the Minister is referring to Mrs. Mulligan of the Coombe?
I think the same lady reappears in almost every constituency. That is the type of shop that I ask Deputies to keep in mind, and in relation to such establishments it is obviously unwise, if not foolish, to adopt any amendment which means that a son or a daughter in that relationship is to be put in exactly the same position as a salaried employee. Undoubtedly, you may come across the case of a shopkeeper with four or five sons who will exploit their labour and get some competitive advantage on that account. That case is not typical, however, and applies no more to the retail trade than it does to farming or any other occupation. I think, however, it would become more general if we were to extend the definition to the extent that Deputy Fitzgerald-Kenney suggests. The relationship between cousins is obviously less intimate than between father and son, or brother and brother. In cases where you have a father and a son, or a brother and brother carrying on business in the same premises, it is impossible for the law to step in and try to regulate their relationship with any degree of exactness. It cannot be done, and I do not think that we should attempt to do it.
The possibility that a shopkeeper may be placed at some disadvantage by reason of the fact that he has to employ others under the terms of this measure does not warrant, in my opinion, any alteration in the definition. The position might become serious in some areas if we were to extend the definition. I am not prepared to extend it, and, on the other hand, I do not think that we should restrict it. We find this definition in previous legislation passed by the Dáil. I refer to that fact merely to indicate that this question has already been before the Dáil when it was the subject of considerable debate; and this definition of what is a "relative" has been put in merely on account of the fact that it represents the best effort which the last Dáil could achieve in that connection, and which, I am sure, the present Dáil would find it difficult to improve upon.
Amendment No. 12, by leave, withdrawn.
In the circumstances, Sir, I suppose I should withdraw my amendment also.
Amendment No. 13 not moved.
I move amendment No. 14:—
In sub-section (1), page 5, line 27, after the word "proprietor" to insert the words "provided there is available in such house sufficient accommodation for such relative or relatives".
This amendment of mine concerns relatives who are not actually physically living in the same premises of the proprietor of the establishment, in a case where there is not room in the house of the proprietor to accommodate them. Of course, we all know that, in a great number of houses, there is a shortage of accommodation, and I submit that, if the accommodation in such a house is not sufficient to enable the employed relative to reside in that house, it is reasonable that, if he resides out, he should receive the same treatment as the ordinary assistant.
Well, I am afraid that we would be going very far if we were to adopt this amendment. I think there is a case, as I have said, for exempting a relative who resides with the employer in the employer's house, but to try to deal with the case where there is not sufficient accommodation in the employer's house, and where the employed relative lives elsewhere, would create great difficulties, because, of course, it would mean imposing on the inspector, or upon whomever was thinking of taking proceedings under the Act, the obligation of being satisfied as to the adequacy of the accommodation in the house of the proprietor, and if the inspector could not satisfy himself on that point, then, in fact, the amendment would operate to exempt the relatives concerned, no matter where they resided, from the conditions of the Act. I do not think that we could go that far. I am certainly in sympathy with the idea the Deputy has in mind, but I think that his amendment—or at least the interpretation of it—would go much farther than is intended and that it would be interpreted as extending the provisions of the Act to a much greater extent than the Deputy himself has suggested in his remarks. In view of that, I think we should hesitate about accepting this amendment.
I should like to oppose the amendment, Sir. It seems to me that, in the minds of a good many members of this House, there is the idea that any degree of exploitation of shop workers or shop assistants is justified provided that the employed person happens to be a relative of the shopkeeper. At an earlier stage and in view of the Minister's attitude, I advocated a further delimitation with regard to the exemption of relatives of employers who come within the scope of this Bill. For the same reasons, I now urge the rejection of this amendment. This idea of bringing in relatives of employers who do not live on the premises of their employers is simply an endeavour to take away from the Bill the value that it has as a protection for certain persons in the community against unfair exploitation. I think that, possibly, the best case that can be made for the Minister's attitude in regard to the limitation to persons living on the premises of the employer is the difficulty of the enforcement of the provisions of the Bill. I admit that it would be very difficult for an inspector to deal with a situation where the persons actually lived on the shop premises, but I do not see any justification whatever for enabling a shopkeeper to engage in a special degree of exploitation of his employees simply because he can claim that these employees happen to be relatives of his. Therefore, I hope that this amendment will not be accepted by the House.
Judging from his remarks, there seems to be running through Deputy Heron's mind an absolute conviction that anybody in this country who has a relative employed in his premises is anxious to browbeat and bully that employee.
No such thing. I did not suggest that such people are anxious to browbeat and bully their employees.
Now, the Deputy is young—I mean that he is young to the House—and I suggest that a little restraint is very good for youth. At any rate, the Deputy seems to be impressed by the idea that everybody in this country is inhuman and that the one idea in life of everybody in this country who has got a relative employed, who is a young person, is to bully and browbeat them and give the worst possible life to that person. That is not the case at all, and I should imagine that, in 999 cases out of 1,000, the relative is very much better treated by the proprietor than is the paid assistant of the establishment. That, certainly, is the thing that one would expect, and I believe it is the thing that one would find in most cases. My amendment is not to the effect that such a person should be worse treated than the shop assistant, but that the regulations, which the law may find it necessary to bring in to regulate the relations between master and employee, ought not to apply as between the members of a family and the head of that family. Probably the relative is much better treated than the ordinary assistant, and probably, in a great number of instances, he works very much shorter hours and gets holidays off and days off that a paid assistant may not get. At the same time, however, he may work for a much longer period on one particular day. There might be a race meeting on one afternoon, to which one might want to go, and the relative might be let off for that occasion, but the paid assistant might not be allowed off.
After your matured experience, Deputy, you seem to be very innocent.
At least I am very fortunate, I think, that I have met a very different point from all those covered by the Labour Party.
I resent, Sir, Deputy Fitzgerald-Kenney's suggestion that I held that all employers of relatives in this country were inhuman and that they wanted to exploit their relatives and so on. If these employers are prepared to have their relatives working under decent conditions, they have nothing to fear from the provisions of this Bill, which is merely laying down a certain minimum with regard to the conditions which are regarded as being tolerable for people working under the conditions concerned; and I take it, therefore, that the people employing relatives, in such circumstances, will be only too glad to avail of the provisions of this Bill. I only want to protect, for instance, juveniles, from coming up against a certain kind of person who might, possibly, exploit them, and whom, evidently, Deputy Fitzgerald-Kenney wants exempted from the scope of this Bill.
I would suggest to Deputy Fitzgerald-Kenney that, as he is concerned for the good relations between people and their relatives, he should not propose a thing that would lead to an argument in court as to whether or not there is sufficient accommodation in a house for persons employed in the establishment or not. I think it would be very unseemly for people to have to answer questions as to how the accommodation in their houses is provided, and I think it is not the sort of thing that should be invited. However the Deputy may feel on the matter, I suggest that it would not be seemly to invite such a procedure.
Of course, the inspector would see the accommodation in the house.
Amendment, by leave, withdrawn.
I move amendment No. 15:—
In sub-section (1), line 29, to delete the word "fourteen" and substitute the word "fifteen".
I think this deals with the same point as is raised in amendment No. 33 later on. The purpose of this amendment is to endeavour to bring into conformity with this measure what has been a popular opinion in many circles, concerned with the raising of the school age and the raising of the age for absorbing youth into industry. While the general trend of opinion, as annunciated at Trades Union Congresses and at the meetings of other representative bodies, is that the age ought to be 16, I take it, therefore, that the amendment is modest and that there is every reason why it should be acceptable to the Minister.
I should also like to state that at many conferences which have taken place between representatives of employers and trade unions the question of employment of juveniles was under consideration and there was, practically speaking, no hostility on the part of employers in certain industries, or in almost all the industries in reference to which that particular matter was raised. But they certainly did maintain that, in order to make it effective, it ought to be universal. This measure gives an opportunity of reaching the half-way house, if I may put it that way. Instead of pressing for the age of 16, as has been done by other bodies up to now, the amendment says 15 years. Employers have stated, on the other hand, that they will be satisfied to meet the trades unions in connection with the matter of absorbing juvenile labour, but that it should be universal.
I submit to the Minister that this is an opportunity which will not occur again for a very considerable time, and I should like very much that he should accept the amendment. I see no reason why it should not be adopted. We all know, with the changes which have taken place, the difficulty that confronts young lads or girls who are absorbed into industry at 14 years when not properly educated and the fight they have in after life. At the present time that fight is more intense than it was some few years ago. If the Minister accepted this amendment, he would certainly meet many points that are worthy of consideration. He would make this universal and it would be a benefit to the children as well as to the people who are going to be absorbed into employment later. I would appeal to the Minister to accept the amendment.
I presume that Deputy Lawlor appreciates that the adoption of the amendment will not raise the school-leaving age.
It would tend in that direction.
I made that remark for the purpose of emphasising that the general problems associated with juvenile employment cannot be tackled piecemeal; in fact, if they are to be tackled at all in any systematic way, a beginning must be made at some other point than restriction on the employment of juveniles. This question of raising the school-leaving age hardly arises on this Bill, but I would remind the Deputy that it has been the subject of very careful examination and the report of a commission, which has been set up to consider it, has been published. The general feeling, I think, is in favour of raising the school-leaving age and, consequently, the age of entering into industrial employment. There may be a difference of opinion in rural areas upon certain aspects of the problem, but, so far as urban areas and industrial and commercial employment are concerned, the general view is undoubtedly in favour of raising the school-leaving age and the age of entry into employment. But there are practical difficulties, and these difficulties are not removed merely by prohibiting young people from being employed in certain occupations until they are 15 or 16 years of age.
The immediate difficulty, of course, is the provision, not merely of school accommodation, but of an adequate system of instruction in schools, if and when the accommodation is provided. If the school-leaving age were raised to 15 to-morrow, there would be a complete inadequacy of school accommodation and of everything associated with school accommodation for a very considerable time. Not merely would that scarcity of accommodation, lack of suitable teachers, and other difficulties arise, but I gather that educationists are of opinion that the benefit to young persons would be negligible. In other words, that it is impossible to work out an addition to the existing primary school programme covering one year only which would be of any real benefit to students; that if we raised the school-leaving age to 15, the last year would be practically a repetition of the previous year; and that if any educational purpose is to be served by the raising of the school-leaving age, it must be to some point beyond 15; that the added period must be more than a year, if any useful system of instruction is to be devised which will be of permanent benefit to the students.
The problems associated with that aspect of the matter are, of course, being examined by the Department of Education. In fact, the Department of Education, as the Deputy may be aware, are proceeding along the lines recommended by the commission— which was to deal with this problem of raising the school-leaving age, not by the general application of a new rule, but by what I may call an experimental development in particular localities. That was the recommendation of the commission, that instead of enacting legislation raising the school-leaving age to 15 or 16 for the whole of the country, in particular districts the age should be raised when the accommodation had been provided, when the programme of instruction had been worked out, and teachers trained in the provision of that instruction. When the Department of Education has made progress in its particular sphere of activity, then I think we can, at some stage, consider this question of limiting the age of entry into industrial or commercial employment. I do not think that we should do it before then. If we were to insert the amendment in this Bill, the only effect would be to prevent persons between 14 and 15 years of age getting employment in shops. We would not prevent them from getting employment; we would merely prevent them from getting employment in shops. I am not sure that that is desirable.
There are, of course, other problems which arise, problems with which no doubt the Labour Party are familiar, or should be familiar. In other countries where they have raised the school-leaving age they had to take into account the circumstances of working-class families where the income, small as it might be, which juveniles over 14 years of age could bring into the household was of importance, and, consequently, they provided, by various methods, for substituting for that income some other means of support for the family while the children were attending school over the age of 14 years. That particular aspect of the whole problem has been also dealt with in the commission's report to which I have referred.
With the general proposition that the school-leaving age should be raised, at any rate in the towns, and that, as a consequence, the age of entry into industrial and commercial employment should be further restricted, I am in complete agreement. I think, however, that it would be wrong to start by restricting the age of entry into employment; that the start must obviously be made by raising the age up to which children must attend school. Before that can be done, a great deal of preliminary work has to be undertaken and a great deal of preliminary expense to be met, because, of course, the provision of new school accommodation, additional teaching staff, and all the rest, cannot be done without considerable cost. If we are to contemplate a general extension to the higher age to cover all children in towns and cities, some provision may also have to be made in the other direction to which I have referred; that is, in the matter of making good to poorer families the income which these children might have earned if the change had not been effected.
This question has arisen on other Bills, of course. It is a simple matter for me to speak against Deputy Lawlor's amendment on the ground that no purpose would be served by preventing the employment of such juveniles in shops when they could get employment in factories or other less healthy occupations, but I do not want to defeat the amendment on that ground. I am urging that it should not be adopted because it is a long way from setting about solving this problem, a problem which we all want to see tackled and a problem on which I feel action will ultimately be taken. The beginning must be made at the education end, and until some progress has been made at that end we can hardly consider legislation of this kind. Remember, the school-leaving age was raised to 14 and the Compulsory Attendance Act was passed when there was no restriction on the age at which children could be absorbed in industrial occupations, so it need not be considered that the amendment is an inevitable consequence of the raising of the school age. The raising of the school age would be in itself effective to achieve the end which the Deputy has in mind, when the necessary preliminary steps have been taken, the necessary finances provided, and the machinery brought into existence which will enable that to be done.
Would not the increased facilities now in existence for vocational education be one of the problems?
I do not claim to be an educational expert, but undoubtedly it is, in my opinion, desirable that any increase in the school-leaving age should be associated with the adoption of a system of education which would have a definitely vocational bent. I think that is desirable, but what the educationists tell me is that it is not possible to do that on the basis of a one-year programme only, that one year would be too short a period to afford any instructional value to the pupils; that if the school-leaving age is to be raised at all in a way that is to have any educational value for the students, it has got to be a two-year period which will be added. Whether that is so or not, I do not know. I do not claim to be an expert on this subject, but the problem has been considered by experts whose views are available in the published report.
I suggest that Deputy Lawlor's amendment would defeat its own purpose, because if juveniles were not, as the Minister suggested, absorbed in some form of employment, it would mean that they would have to spend one year free of any control, because, presumably, the male parent at least would be working. They would be out of school at 14, and they would be for one year completely out of control. They would not, in many cases, be useful members of an establishment after that year of absolute freedom. I quite agree that something should be done, and if by means of vocational tests such as have been instituted by the Institute of Industrial Psychology, tests could be carried out during the last year at school, and could be followed up by one or two years' vocational education, the result would be to make these juveniles very much more useful to a factory, shop, or whatever other form of employment in which they might be absorbed. As the amendment stands at the moment, I think it would defeat its own object.
I think we are all glad to hear the Minister express his sympathy with the object in view. He maintains, of course, that it is practically impossible to have it included in a Bill of this kind. He has referred to the report of the departmental committee which inquired into the question of the school-leaving age. I am glad to know that he has not, expressly at any rate, approved of the statement in that report that children of fourteen are not too immature to enter into industry. I hope I am right in assuming that he does not endorse that view.
No; but I started work before I was 14, and it did me no harm.
Would you start your son working before he was 14?
Not if I could help it, but this is a different question. The question is whether it is better for children to remain at school, or to get into an occupation where they will be able to learn a certain type of skill that will be of benefit to them in after-life. That is an open question. For certain classes of occupation, the actual transposition from the school to the factory can be done at that age. It does not mean that the education of the juvenile has come to a stop, but that his education will take a different form, and very few means of vocational instruction are available unless provided in a factory associated with a particular work. Of course we are not dealing with factories now, and that is a theory which does not apply to most forms of shop work. While I should like to see a general system which would permit of young people remaining at school for a longer period than they are now required by law, at the same time I do not think it does all the harm, which has occasionally been stated, to have them going to work at 14 or 15 years, provided the work is work of a healthy kind and likely to help them to something better in after life—in other words, that it is not blind-alley work, which is merely a source of a few shillings a week for the parents and of no benefit to the juvenile.
The Minister said he started to work early himself, but that he would not start his children to work early. I take it that the higher grade civil servants who framed this report would not permit their own children to start work at 14 in a factory. They would prefer to send them on to the university, provided out of public funds and maintained out of the rates that all of us pay. The Minister said he considered this a right age to bring them into a factory. The Minister is, no doubt, aware of the fact that manufacturers in Great Britain a few generations ago maintained it was absolutely essential for the welfare of British industry that children of seven or eight years should be brought into cotton factories. They needed workers with pliable fingers to handle the cotton, and these would not be available unless they brought in children of immature years. Well, now, we should have moved away from all that. If there is a lot of people idle in the country, it is better to have fully-grown men and women absorbed in industry than to force in immature children. The Minister raises a point in regard to the question of adding an extra year after 14 and says that certain preliminaries would have to be introduced. I offer him an alternative, to take off a year at the other end, so that the minimum age at which children would be admitted to school would be seven instead of six. Instead of forcing very young children to go to school to get them out of the way, it would be much better to have school attendance enforced between the ages of seven and 15 rather than between six and 14.
I should like to hear from the Minister, after his endorsement of the employment of juveniles even at the age of 14, what type of employment there is in this country at present where the conditions are sufficiently healthy to permit of the employment of children of that age.
Employment in industry does not arise on this section.
The Minister has introduced the subject.
Before I withdraw the amendment, I should like to make a few remarks. A point has been made by the Minister in reference to the child's help to the family by going out to work at an early age. I think the Minister will admit that in the overwhelming majority of cases a child helps only for a short time. That help brings about the sacrifice of that child for the balance of its life, and certainly does not tend to make it a good and decent citizen. The Minister may have worked before he was 14, but he is one of the few, and he was not working in a blind alley occupation. The overwhelming mass of the juveniles of this country who go into industry under 14 years of age are going into blind alley industries. The result is that to-day you will find nearly every street corner in Dublin offering its quota of young men and young women who have worked only for a couple of years, starting at 14 and getting left off at 16. I am pleased that the Minister can see there is good reason for the amendment, and I am satisfied that the contention he is making as regards its general application cannot be found in my amendment. It would undoubtedly have to come from the other end, where the school leaving age would be compulsorily increased. Therefore, I withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 16:—
In sub-section (1), line 30, after the word "work" where it secondly occurs, to insert the words "including the work of an accountant, clerk or other person employed in an office."
Section 2 defines what shop work means. It declares that the expression "shop-work" means "work (whether within or outside a shop) which is connected with or ancillary to the business carried on at a shop, but does not include work in connection with a wholesale shop", and so on. The object of this amendment is to ensure that the expression "shopwork" will also include "the work of an accountant, clerk or other person employed in an office"—then the section goes on to operate again—"which is connected with or ancillary to the business carried on at a shop". The object of the amendment is to ensure that when we come to find what shop work is we will not exclude from the provisions of this Bill and from such benefits as are provided in the Bill a person who is employed as an accountant, clerk, or in any other capacity in an office which is connected with or ancillary to the business carried on.
I am leaving those words in the section, and consequently the ancillary character of the work of an accountant, clerk or other person has to be established in order to bring the person within the scope of the Act. Frankly, the object is to extend the scope of the Act, and bring into it persons who are employed on work of an ancillary kind, such as an accountant, clerk or person employed in any other capacity which is not covered by the title of accountant or clerk, but who will, nevertheless, perform certain tasks in connection with the business which is carried on in the shop.
I think we already argued this in relation to another amendment.
No. 8 I think.
On that occasion I expressed the view that it would be undesirable to extend this Bill to cover persons who are engaged in purely clerical work only, that is, clerical work, in relation to shops, of a similar character to clerical work done in relation to any other form of commercial activity. In so far as clerical workers are engaged in shop work in conjunction with the serving of customers, or the receipt and despatch of goods, they come within the scope of this measure, but the type of person who is engaged in other forms of clerical work which have no direct relation, to the actual form of activity carried on is not covered, nor do I think he should be covered.
Let us take the case of a shop carried on in a particular premises in town—an ordinary shop for the purpose of dealing with customers; it might be for the purchase of drapery goods, for instance. Let us assume that upstairs there is a person working as a book-keeper, keeping the accounts of that shop, and another person whose job is the sending out of invoices or the posting of ledgers in respect of the purchases which are made downstairs. Do I understand from the Minister that in his opinion those people are excluded from the scope of the Bill?
The Deputy included a number of people in his definition. In the ordinary course, a person whom I would describe as an invoice clerk is covered by the Bill. I put that person in a different category to the person who is employed purely in the accountant's office, keeping the books of the concern. It is very hard to get a definition. The actual definition which appears in the Bill here has been the subject of legal interpretation in the past, and possibly will again in the future. The type of person whom it is not intended to cover by this Bill is a clerk who is doing in relation to a shop precisely the same type of clerical work that he would be doing if his employers were operating a factory or an insurance company or a betting office or any other type of commercial activity. If the person is employed in any way in relation to the actual business of retail trade, then that person is covered by the Bill.
I mentioned here before, in relation to those clerical workers, that, while there may be a case for general regulation, it was not as easy to effect it as in the case of shop assistants or industrial workers. We could, of course, provide certain safeguards in respect of wages, and in so far as I am familiar with the circumstances under which a number of clerical workers are employed, I think that is the safeguard which is most urgently required, but I do not think it would be possible to regulate, with the same degree of precision as is possible in the case of other classes of workers, the hours of work or other conditions of employment. We are providing them with a statutory right to holidays, but I should not like to have to undertake the task of regulating the other conditions of employment, because it is not unusual—in fact I would say that, on the contrary, it is quite usual—that the relations between those clerical workers and the employers are on a different basis to those of other workers. They are more confidential. They involve a greater degree of personal trust, and so forth, in the ordinary case. There may, of course, be establishments where a huge number of clerical workers are employed, and the thing is run as a machine, but that is the exception, and in relation to those establishments the abuses to which I have referred do not as a rule exist, because their very size ensures against them in the ordinary case. I do not think we should attempt to extend this Bill beyond those who may be regarded as shop assistants, that is, those who are engaged in any way in connection with the serving of customers. I do not mean to confine it to those brought into actual physical contact with the customers; it applies to those whose work has any connection with the serving of customers or similar activities carried on in shops.
What the Minister is saying now is narrower than the provisions of the Bill.
No. That is in the Bill.
The Bill says "connected with or ancillary to the business carried on at a shop"; that is not the actual serving of customers.
That is what I have said; it is not intended to confine the Bill to persons who are actually concerned with the serving of customers, but to include also person who do work connected with or ancillary to the serving of customers, such as the despatch of goods or the receipt of orders. Those persons will, in fact, be found to include, in respect of the great majority of retail trades, every person employed. In fact, it is only in the case of multiple shops, where the accountancy and office work are separated altogether from the actual business of individual establishments, that the distinction will arise.
The object of this amendment is not to bring clerical workers generally within the scope of the Bill. I recognise there must be a limit to its scope. But here we are purporting to frame a code for persons engaged in shop work, and we proceed to say that this Bill will apply to the assistant. I take it that it will apply without question to the cashier—will that be so?
It could apply to the cashier.
And the dispatch clerk?
Yes.
But the person who actually deals with the accounts of the customer who makes a purchase, presumably, will not be included, and the person who keeps the books in relation to that purchaser's credit facilities or payments will not be included. That seems to me to be an indefensible restriction. If we are going to permit the cashier and the dispatch clerk to be included, why should we not permit the book-keeper and the person who does the general work of keeping the accounts of customers who shop on the lower floor of the building? It might be argued that they are in because they are doing work ancillary to the business carried on at the shop, and I think a court might well rule that the person who keeps the accounts created by the customer making purchases downstairs in the shop is, in fact, performing work ancillary to the business carried on in the shop. I think the way in which that could be arranged is that this type of work includes the work of an accountant, a clerk, or other person employed in the office, all the time bearing in mind the governing phrase "work which is connected with or ancillary to the business carried on." That ensures that an ordinary accountant, any private accountant, could not come along and say that he is within the scope of this Bill. The person who would be included would be the person who would be doing work connected with or ancillary to the business of the shop. That would not let in the general clerk.
Take the case of an ordinary establishment in the city. The clerical workers go to work the same time as the shop assistants; they go to lunch at the same time and they are off in the evening at the same time as the assistants. Why should we apply this measure solely to the assistants and leave out the ordinary clerks who are dealing with the accounts of the customers, and why should we leave out the accountant or the book-keeper who keeps the accounts? I suggest there is a very much stronger case for extending the scope of this Bill to the persons I have mentioned rather than for limiting the scope of the Bill and prohibiting the inclusion of these people. I think that if you include these people it will be found that the Bill will be much easier and simpler to work. I would like the Minister to consider the matter with a view to covering that type of employment, all the time reserving the governing provision that the work must be connected with or ancillary to the business carried on at the shop.
I am afraid I could not agree to that. I gave my views on the subject on an earlier amendment before Deputy Norton arrived. Without desiring to repeat myself too often, I would like to say again that in my opinion, in so far as clerical workers require protection in regard to their conditions of employment, they should be dealt with as a class. I do not think we should deal with a certain group of clerical workers in this Bill, merely because they are clerical workers employed in connection with shops, any more than we should deal with clerical workers employed in factories in legislation governing employment in factories, or any more than we should deal with clerical workers in insurance offices in legislation affecting insurance. We might consider it desirable to introduce general legislation covering clerical workers, no matter where they are employed. I use the term "might" because I see considerable difficulty in devising a suitable type of legislation and enforcing it after we had enacted it.
There is one, and possibly there are two, matters in respect of which provision for clerical workers could be said to be needed. The first matter has relation to holidays. They should be given the same statutory right to public holidays and annual holidays as shop assistants are getting under this Bill. We may propose to do that for them by embodying them in a general measure covering all workers not already covered by legislation. The second matter is in respect of their earnings. Quite a large number of clerical workers are employed—not usually in connection with shops, but in connection with other occupations —at wages which are unduly low, and some means of enabling such persons to protect themselves and ensure reasonable remuneration for their labours may have to be devised by law. To that extent I am quite prepared to go, but I could not see my way clearly to go beyond that in the regulation of the conditions of employment of clerical workers, because there are difficulties that I do not think Deputy Norton has quite considered. He merely sees these clerical workers as members of the staff of the shop, and his point is that, if we are dealing with the shops, let us include these. I see them as a class, the same as I see transport workers, and a line of demarcation must be drawn somewhere.
Why not draw the line of demarcation here?
It is not desirable, I think, in the case of transport workers —I dealt with that before—and yet there are transport workers employed in shops, just as they are employed in factories and elsewhere. In so far as it is desirable to deal with clerical workers, I think we should deal with them as a class.
In this instance you are bringing in some clerical workers and leaving out other clerical workers. Why not make the shop the line of demarcation?
I do not think it is the practical way to do it. I have been considering this matter, because I got representations on the subject. As regards clerical workers, I am going to give them, by legislation, the benefit of the holiday provision of this Bill. If circumstances should arise to facilitate it, and if it were clearly necessary, I would be prepared to introduce legislation in relation to clerical workers somewhat similar to the wages part of this measure. But I have not got in my head any clear idea as to how you could go beyond that satisfactorily in the regulation of conditions of employment of clerical workers. In some types of establishment it could be done; in others it could not; but that is a question to which I would like to give further consideration before giving any opinion. I would prefer to deal with the clerical workers as a class, the same as we propose to deal with transport workers as a separate category of workers and the same as we are dealing with shop assistants as a separate category.
I am anxious to find out what portion of the clerical workers the Minister is proposing to cover, and I should like to have that clearly stated. I am afraid the consolation that I received in the debate on an earlier amendment has been shattered by the discussion on amendment No. 16. The Minister referred me to work which is wholly or mainly performed within the shop and is wholly or mainly in connection with the serving of customers. Deputy Norton starts in to try and analyse where the Minister cuts the cord in connection with serving a customer. It is quite clear that the assistant who takes the order or displays the goods is a shop assistant. I raised a point about somebody who might be in a department standing there, possibly taking down that order for the salesman or assistant. The Minister extended the scope still further, I thought, when he spoke about a clerk who is making out invoices, that he is included. Deputy Norton mentioned the book-keeper who puts those invoices into the ledger. Apparently those clerks are also connected with serving a customer. Now, if you come down the other end of the line and follow the goods as they travel out, you find the dispatch clerk in the delivery department and the person who keeps a book recording the deliveries.
The Minister says—I hope he will correct me if I am wrong—that all these classes are "in connection with the serving of customers." He used the analogy of the betting shop, and said that the people employed on that class of business in a retail establishment did not come within the scope of this Bill. I am only anxious to get a definition of who is and who is not covered by the Bill. As regards the analogy of the betting shop, letters would be received in the morning. In a retail establishment, letters would also be received. Evidently, the clerical workers operating in connection with these letters would not be covered. The Minister also spoke about a factory. In a factory, they make purchases. So does a retail establishment. Evidently, a book-keeper who kept a creditors' ledger would be outside the scope of the Bill, while one who kept a debtors' ledger would be inside the scope of the Bill. A person who prepared invoices would be inside the terms of the Bill, and a person who dealt with out voices would be outside the scope of the Bill. I should like to know if that is the position, because we are all anxious to know where we stand. The Minister will have to get down to some more precise definition than that in line 14. I should like to hear the Minister on that point so that we should have a clear-cut idea as to the clerical people who are within the terms of the Bill and those who are outside the terms of the Bill.
Deputy Dockrell has made clear that, with the definition in the Bill, it is difficult for anybody, including the Minister, to say who are covered as people engaged on shop work.
"In connection with the serving of customers."
I think that the Minister has failed to get the force of the argument for a change in the definition. Deputy Dockrell is concerned only with having the definition clear and knowing who is included and who is excluded. We, of this Party, are concerned with something more than that. We are concerned with having a clear definition, but we are also concerned with having a definition that will include all shop workers.
The Minister has seen the inside of a shop and he knows that it usually contains an office. In that office, in the case of the larger shops, there is a cashier, who would be actually in contact with customers and who would clearly come within the definition in the Bill. Besides that cashier, there might be a ledger clerk who would be entering up customers' accounts. Is it suggested that the cashier will be within the terms of the Bill but that the ledger clerk will not because he is not in direct contact with customers?
When the Minister talks about the need for legislation on somewhat different lines for clerical workers outside shops, we all agree. That is a different problem. The problem with which we are dealing is that of clerical workers employed inside shops. If there is to be a line of demarcation drawn, you could hardly have a better one than that which would be drawn around the shops. It is illogical to include certain clerks, and anybody who happens to be in contact with customers, and to exclude those clerks sitting beside them because they are not in contact with customers, notwithstanding that they are working in the same shop and under the same conditions and for the same hours as those included. I suggest that the Minister should make the definition clear and should include everybody employed in a shop. The introduction of clerical workers in insurance offices, banks and other establishments did not seem to me to have anything to do with this question. The present position seems to me to be ridiculous. If you have inspectors enforcing this legislation, one of them may go into a shop and see that the provisions of the Act are being complied with in respect of everybody but the ledger clerk. He will pass him by and say: "I shall come next week, or some other inspector will come, and look after you." Surely it would simplify the matter, from the Minister's point of view, to include all people employed within the four walls of a shop.
I should like to put another point to the Minister. With the development of the telephone, the practice of ordering goods by telephone is growing. Deputy Dockrell will probably confirm that. A person may ring up a shop, ask the prices of certain commodities, order certain commodities, ask when they will be delivered, and direct the bill to be sent to him. The employee is there dealing with a customer. He may be a clerk employed in the office, because you cannot have a telephone at the counter where particular goods are stocked. Why should not that employee be brought within the scope of the Bill in the same way as an ordinary assistant dealing with a customer? If the Minister said that all employees other than those standing behind the counter would be outside the scope of the Bill, I could understand his contention, but here we have a section which says that the Bill applies to persons engaged in shopwork, that work being defined as "any type of work connected with or ancillary to the business." You do not mean by that the actual serving of a customer. It means something over and above that. It means work extending into another domain such as that of cashier, dispatch clerk, or a person who would answer the telephone and take an order of the kind I have mentioned.
When the Minister brings these workers within the scope of the Bill, he is clearly driven to including certain clerical workers employed in the shop. Why not go further and say that, in these circumstances, the shop is the proper line of demarcation and that all clerical workers employed in the shop are, in fact, covered by the Bill? If, at a later stage, legislation is introduced to deal with clerical workers generally, it would be possible, by repealing certain portions of this Bill, to transfer the clerical workers affected to the new Bill. At this stage the most convenient course is to bring in all clerical workers whose business is ancillary to the business of the shop. I ask the Minister to reconsider the matter in the light of the difficulties to which attention has been drawn.
So far as the definition is concerned, I think that it is a good one.
If vagueness is good, it is a good definition.
If Deputy Dockrell wants to suggest any alteration in it, I am prepared to consider it, but, in my opinion, if you attempt to become more precise in relation to the class of persons covered by it, you will become more restrictive, and it is not necessary to do so. There are in relation to the terms used here a number of legal decisions which make it considerably easier to draft this legislation knowing precisely the consequences it is going to have. So far as Deputy Norton's point is concerned, I can say only this to him, that if he says that clerical workers require the protection of legislation of this kind as shop assistants require it, that transport workers require this protection, or that any other class of worker not covered by the existing Act require it, I am inclined to agree with him, but this is a Bill to deal with shop assistants, and I want to confine it to shop assistants.
Shop workers.
Well, persons who are engaged wholly or mainly in connection with the serving of customers, receipt of orders and dispatch of goods in a shop.
Does the Minister not see the force of this, that it is entirely illogical to include in the scope of the Bill the invoice clerk and exclude the ledger clerk? Does it not really mean that, as interpreted by the Minister?
I would not say that, nor do I think it wise that we should use terms of that kind. I draw the line around the shop, and I say that anyone who works in that shop is covered by the Bill. Deputy Norton wants to go further and take in the whole building in which the shop is located, and to include the office of the firm operating the shop, although that office may be on the opposite side of the city.
No, not necessarily. I am leaving in the words, "connected with or ancillary to the business carried on in the shop."
The office where the accounts of the firm are made up and the profit and loss determined is distinct, in my opinion, from the shop. In the average medium-sized shop this question will not arise at all, because the people who are doing that type of clerical work are either proprietors or persons otherwise engaged in connection with the shop, but in the larger establishments there is a clear distinction between the shop and the office. We are dealing with the shop, and everyone who works in the shop, even though the work he does is clerical work, is covered by the Bill. We are dealing with the type of people who work in the shops as members of the staffs of shops, and I propose to resist any movement to get beyond that. I think it was a mistake to have gone beyond that in relation to hotels, but we have gone there now and we will stay there. I think it might have been better to have kept hotels out of this legislation, as not being shops and as offering different problems from those which arise in shops, but to the extent to which they are in we will have to keep them in if we can get over the purely drafting difficulties involved. I want to confine this legislation to the members of staffs of shops, leaving out the purely clerical workers whose association with shops arises from their employers operating shops, as would be the case if those employers operated factories, and leaving out the purely transport workers and certain other people who might be employed, such as electricians and plumbers.
They are covered by the Conditions of Employment Act.
You will get overlapping cases. When the Conditions of Employment Act was before us, I mentioned that Woolworth's had been held to be a factory because there was a girl behind the counter printing visiting cards. These cases will arise where some difficulty of interpretation or application develops, but I am setting forth here the general idea behind this Bill, and, while I am prepared to consider any proposal designed to ensure that that general idea will be carried out, I am, at the same time, prepared to resist any proposal to extend that general idea.
I am at one with Deputy Norton, or any other Deputy who urges that similar legislation is required for other classes of workers. I agree fully with that, but I say that it should be done by separate measures, and not by extension of this Bill. We should confine this to persons who work as members of the staffs of shops— anybody doing work which is defined here as work proper to be done by the members of staffs of shops.
In view of the extent to which purchasing on the instalment plan has developed, will the Minister say whether collectors and canvassers connected with a shop come within the Bill?
No. Collectors and canvassers in connection with any kind of shop are excluded.
Would the Minister say whether the clerical worker who answers the telephone, deals with a customer's order and transacts a good portion of the business in connection with it, comes within the scope of the Bill?
If such person is employed wholly or mainly in that work, yes.
The definition says that shop work means "work connected with or ancillary to the business".
The Deputy will see that the term used in the earlier definition of a member of a staff is "wholly or mainly".
The Minister has told us, and I think quite rightly, that he proposes to introduce a Bill to deal with the question of transport, but the latter portion of the definition says:—
...does not include work in connection with the wholesale shop other than... (b) work in the collection or delivery of goods, or in attendance upon customers, or in carrying messages or running errands.
Is there any reason why this should not have been left over for that Transport Bill?
I have just been reading that myself, and I have been puzzling over it. I am not clear as to whether or not there has been a typing error there, and I should like to reconsider it before dealing with it.
Question put.
The Committee divided: Tá, 33; Níl, 53.
Tá
- Bennett, George C.
- Bourke, Séamus.
- Brasier, Brooke.
- Brodrick, Seán.
- Byrne, Alfred (Junior).
- Cosgrave, William T.
- Costello, John A.
- Daly, Patrick.
- Davin, William.
- Fagan, Charles.
- Finlay, John.
- Fitzgerald-Kenney, James.
- Giles, Patrick.
- Heron, Archie.
- Hogan, Patrick.
- Keating, John.
- Keogh, Myles.
- Keyes, Michael.
- Lawlor, Thomas.
- Linehan, Timothy.
- MacEoin, Seán.
- McFadden, Michael Og.
- McGowan, Gerrard L.
- Mongan, Joseph W.
- Nally, Martin.
- Norton, William.
- O'Brien, William.
- O'Shaughnessy, John J.
- Pattison, James P.
- Redmond, Bridget M.
- Rogers, Patrick J.
- Ryan, Jeremiah.
- Wall, Nicholas.
Níl
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Benson, Ernest E.
- Boland, Gerald.
- Brady, Brian.
- Brady, Seán.
- Breslin, Cormac.
- Briscoe, Robert.
- Carty, Frank.
- Colbert, Michael.
- Corry, Martin J.
- Crowley, Fred Hugh.
- Davis, Matt.
- De Valera, Eamen.
- Dockrell, Henry M.
- Esmonde, John L.
- Flynn, John.
- Flynn, Stephen.
- Fogarty, Andrew.
- Friel, John.
- Fuller, Stephen.
- Gorey, Denis J.
- Gorry, Patrick J.
- Humphreys, Francis.
- Kelly, James P.
- Kelly, Thomas.
- Kennedy, Michael J.
- Kissane, Eamon.
- Lemass, Seán, F.
- Little, Patrick J.
- MacEntee, Seán.
- Maguire, Ben.
- Meaney, Cornelius.
- Morrissey, Michael.
- Moylan, Seán.
- Munnelly, John.
- O'Briain, Donnchadh.
- O'Ceallaigh, Seán T.
- O'Grady, Seán.
- O'Higgins, Thomas F.
- O'Reilly, Matthew.
- O'Rourke, Daniel.
- O'Sullivan, Ted.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Tubridy, Seán.
- Victory, James.
- Walsh, Richard.
- Ward, Conn.
Tellers:—Tá: Deputies Heron and McGowan; Níl: Deputies Little and Smith.
Amendment declared lost.
I move amendment No. 17:—
In sub-section (1), before line 39, to insert the words:—"without prejudice to the generality of the foregoing the expression `shop work' shall include the work done within a shop in connection with the cleaning of such shop".
The amendment proposes to bring in cleaners. That class of workers in factories is covered by the Conditions of Employment Act. I would hope that the Minister would bring them into the Bill.
I am not quite clear as to what class of worker the Deputy has in mind. A person who is ordinarily a shop assistant remains one even though occasionally he has to clean the shop or portion of the shop. If the Deputy has in mind charwomen and people of that character, I do not think they would fit in under this Bill. Their hours of work must obviously be different from those of the ordinary shop assistant. I do not think that the same conditions would apply in respect of them as would apply in respect of shop assistants.
You might have a charwoman working full time in some establishments.
From the legislative point of view, what does the Minister propose to do in respect of that class?
That is another question. I cannot quite visualise the type of person that Deputy O'Brien seems to have in mind. I think that most of the persons engaged in the larger shops in connection with the cleaning of them are also engaged as packers or as persons who would come within the definition of "a member of the staff," as set out in the section. I do not know that there would be any person employed solely as a cleaner except perhaps in a part-time capacity.
Charwomen, for example.
They would not work for more than a few hours in a day in those establishments, and could not, therefore, be regarded as in need of legislation of this kind. What those people would probably require is not a restriction of hours of work but more work.
What about holidays?
I have already mentioned that it is intended to introduce legislation—a general Bill applying to people under contract of service, with certain obvious exemptions.
Can we have any idea as to when that is likely to be introduced?
Subject to all sorts of contingencies, early next year, so that it will operate next year.
Amendment, by leave, withdrawn.
I move amendment No. 18:—
In sub-section (1), before line 39, to insert the following words:—"the expression `catering trades' means the business carried on in a refreshment house".
There is no definition of "catering" in the Bill, and I think the Minister will agree that this is a trade that requires a definition. The Minister is probably aware that when the British Ministry of Labour proposed to establish a trade board for the catering trade there was an action brought in the High Court. The decision of the court was that the word "catering" was not sufficiently precise to be defined. I think the Minister will agree that a definition is required here.
I will have the matter examined, and if a definition is required I will have one inserted.
Amendment, by leave, withdrawn.
I move amendment No. 19:—
In sub-section (1), before line 45, to insert the following words—"the expression `contravention' in relation to any provision includes any failure to comply with that provision or with any rule, regulation, bye-law or order construed in reference thereto".
This is a purely technical amendment. It is a definition of the word "contravention".
Why does the Deputy think that the word requires definition?
The word is used with regard to an Act of Parliament itself, but when you use it with reference to orders made by the Minister, I think it would definitely mean something in the nature of an interpretation. I think if the Minister looks into the matter he will see that a definition of the word is required.
It is purely a drafting matter. If the Deputy leaves it over I will consult the draftsman.
Amendment, by leave, withdrawn.
Question proposed: "That Section 2, as amended, stand part of the Bill."
On the section, I wish to call attention to the wording of sub-section (3), which says:—
Save as is otherwise expressly provided in this Act, the provisions of this Act shall extend to any place where any retail trade or business is carried on as if that place were a shop and as if in relation to any such place the person by whom the retail trade or business is carried on there were the proprietor of that shop.
What happens where different classes of trade are being carried on in the same part of a shop? Take the ordinary country shop, where over the same counter alcohol, cutlery, boots and a lot of other things are being sold. There is only the one counter, and you have a mixed general business being carried on over it. This seems to contemplate that a person is selling boots, alcohol, etc., over different counters. That is not done in the ordinary country shop.
That point does not arise here. If a person is selling one class of goods in one part of the premises and another class of goods in another part of the premises then the whole of the premises is regarded as a shop. There is no difficulty in determining that fact. The case that we are attempting to meet here is where the business carried on in part of the premises is not a retail business. Where a retail business is carried on in some part of the premises then, for the purposes of the Act, the whole of the premises is deemed to be a shop.
I simply put this forward as a matter that the Minister might consider. Suppose you have one of these Sunday trading businesses, plus a retail trade in boots carried on over the same counter, a difficulty may arise.
That is a problem that would arise in connection with the Hours of Trading Bill but not on this Bill.
I desire to draw the Minister's attention to the definition of the expressions "member of the staff" and "shop work". To my mind "shop work" is given a much wider definition than "member of the staff." The expression "member of the staff" is said to mean any person who does any work which is wholly or mainly performed within the shop and is wholly or mainly in connection with the serving of customers or the receipt of orders or the despatch of goods or the unpacking or packing of goods and is not industrial work under the Conditions of Employment Act. The expression "shop work" is said to mean work which is connected with or ancillary to the business carried on at a shop, and so on. On Deputy Norton's amendment I think that certain clerical workers would be out as members of the staff and in as doing shop work, so that it seems to me that these two definitions are in conflict.
In connection with the definition of "shop work" I have already mentioned that I want the phraseology there used reconsidered, because I think it might be clarified, or amended in some respects.
Question put and agreed to.
SECTION 3.
I move amendment No. 20:—
Before Section 3 to insert the following new section:—
For the purpose of this Act a person shall be deemed to continue to do shop work during the time which the person so employed is at the disposal of the employer exclusive of any intervals allowed for rest or meals.
The amendment seeks to ensure that an employee, so long as he is available for work on the premises, will be regarded as being in continuous employment. It might happen that an employer would have a shop worker available at certain periods and say to him that his services were not required at that particular moment, and that in consequence of that the hours so spent on the premises would not count in his favour. This amendment proposes to make that position impossible: that, so long as a worker is on the premises and available for work, his hours there will count.
I am prepared to accept the amendment in principle, although I think it will be necessary to provide that the worker is on the premises on the strict instructions of his employer. If the Deputy is prepared to leave the matter over I will see what we can do.
Amendment, by leave, withdrawn.
Section 3 agreed to.
SECTION 4.
(1) Nothing in this Act shall apply to any fair lawfully held or to any bazaar or sale of work for charitable or other purposes from which no private profit is derived or to any library at which the business of lending books or periodicals is not carried on for the purposes of gain other than that of making profits for some philanthropic or charitable object (including any religious or educational object) or for any club or institution which is not itself carried on for purposes of gain.
I move amendment No. 21:—
In sub-section (1), page 6, line 5, after the word "gain" to insert the words "except a club in respect of which there is granted or renewed a certificate of registration pursuant to the provisions of the Registration of Clubs (Ireland) Act, 1904."
The object of this amendment is that a club should be put on the same basis as ordinary licensed premises. I will admit immediately to the Minister that, as I drafted this amendment, it is really much wider and covers much more than what I have in mind in connection with this matter. The class of clubs that I wish to deal with are not social clubs, such as golf clubs, and clubs of that nature, but the type of club which is really, in all but name, a publichouse. I am sure the Minister knows the type of club to which I refer. It is rather difficult to get a word that would cover that type of club and yet not include the other type of club, but what I am driving at really is that, as I am sure the Minister knows, there are various clubs around the city here which, in effect, are simply publichouses under another name, and I do not see why the employees in such places should not be treated in the same way as in other cases.
Is the Deputy not covering that by his amendment?
Yes, but I am afraid that I have drafted it in such a way as to cover more than I meant it to cover. I think it is a little too wide in its application as I have drafted it.
Are you moving it?
Clubs, of course, are not exempted from the provisions of the Bill. The sub-section does exempt certain institutions, such as libraries and so on, which are not carried on for purposes of gain other than that of making profits for some philanthropic object. I think that what the Deputy has in mind is certain so-called clubs which purport not to be carried on for the purposes of gain but which are, in fact, so carried on and which, as the Deputy says, are practically publichouses, except in name. It is very difficult, however, to see how one could deal with that point, because what you are up against in a case like that is the question of an evasion of the law. The law cannot touch a case like that because these clubs, to which the Deputy has referred, manage to keep within the letter of the law, even though they might be outside the spirit of it, and I do not see how we could quite get at such institutions without, at the same time, bringing within the scope of the Bill quite a number of bona fide charitable institutions which should not be affected by legislation of this kind.
Of course we might exempt clubs from this sub-section altogether and make them all subject to the provisions of the Bill, and say that their employees should be entitled to the benefits of the Bill whether these clubs or other such institutions are carried on for purposes of gain or not. I think that that would be the only way to meet the Deputy's point, but that would have the effect of bringing in golf clubs and other such clubs and making these bodies subject to the provisions of the Bill.
Well, perhaps the Minister would consult with the parliamentary draftsman with a view to seeing whether or not some scheme might be devised, or some formula devised, which would take in the particular class of club I have in mind, and of which I am sure the Minister is aware, and at the same time exempt the other class of club. Of course, if the parliamentary draftsman says that it cannot be done, well, I suppose it cannot be done.
If these clubs, to which the Deputy refers, have employees, why should they not be entitled to the same benefits as those which the employees of other institutions are entitled to under the Bill? The object of the Bill is to provide certain benefits for the employees of clubs carried on for gain. Why, therefore, should we have a sub-division of these clubs in order to ascertain whether or not certain people are entitled to benefits? Is it the object to take from outside the scope of the Bill certain employees and to prevent them from getting the benefits that would be got by employees engaged in similar work in a private establishment?
Well, of course, the distinction I drew was that in certain clubs the servants are in the same position as the servants in ordinary houses. However, I do not want to deal with that point. What I want to deal with is this other type of club, to which I have referred and which, I am sure, both the Deputy and the Minister know about.
Amendment No. 21, by leave, withdrawn.
Question proposed: "That Section 4 stand part of the Bill."
On Section 4, Sir, I should like to know from the Minister what kind of person exactly is sub-section (2) (b) intended to refer to.
I think that the definition in the sub-section is fairly clear. One of the questions that arose when this Bill was being prepared was the question of the extent to which it should apply to post offices, and there was considerable discussion between my Department and the Department of Posts and Telegraphs before agreement was reached. The agreement was to the effect that where a member of a staff of a shop in which post-office business is carried on is a person who has been appointed by the Minister for Posts and Telegraphs, then that person is outside the scope of the Bill, but that where he was appointed by somebody else, such as, let us say, by the person who was appointed by the Minister for Posts and Telegraphs, then he comes within the provisions of the Bill and gets whatever benefits may accrue under the provisions of this Bill. The one thing we wanted to avoid—and I am sure the Deputy will realise its necessity—was to have one Department of State making regulations governing the conditions of employment of persons in the service of another Department of State.
Yes, but of course it comes under the Conditions of Employment Act.
Yes, to some extent, but that refers to a certain type of employment.
Well, I wonder why this exclusion has been put in, because it seems to me that the person who is appointed in the circumstances would be a person who had been appointed sub-postmaster or sub-postmistress as the case might be. That person would be the owner of the shop, and I never heard of a case of an appointment made in any other way.
Well, I am not very familiar with the affairs of the Post Office Department, but I understand that there are certain types of intermediary establishments or shops of that nature.
What kind? What does the Minister mean?
I mean that, as I understand it, there are certain types of shops where certain people, other than the proprietors of the shops, are appointed by the Minister for Posts and Telegraphs, as distinct from the case where the sub-postmaster or sub-postmistress is appointed by the Department and might employ other persons as members of the staff who are not within the Minister's control. The point is that the persons appointed by the Minister for Posts and Telegraphs will not come under the provisions of the Act, and, of course, if they are proprietors, they will not be under its provisions.
I think that this provision is redundant, because I think you cannot find a case where the sub-postmaster or the sub-postmistress is a member of the staff of a shop. What happens in normal circumstances, and, in fact, in all circumstances one might say, is that the Minister for Posts and Telegraphs appoints a person as sub-postmaster or sub-postmistress, and that person functions in that capacity for the Minister; but, in addition, that person may also run a shop and, in respect of that shop, that person is the owner of the shop and the employer in regard to any staff he may have. I should like to know under what circumstances that person is within the scope of the Bill at all to make it necessary for the Minister to provide for this exemption.
A proprietor would not be within the scope of the Bill at all— that is true.
Then why not say that no proprietor is within the scope of the Bill, instead of making this kind of special provision? It seems to be unnecessary in the circumstances and, because of its obviously unnecessary character, my suspicions were aroused. Why not say every proprietor is out? Why take this particular line?
A sub-postmaster or a sub-postmistress might have a shop as well as the post office running for private gain. Why should it not apply then?
That is only for an assistant. This says the proprietor is out.
The proprietor of the shop might be an employee of the Department of Posts and Telegraphs. I am anxious to get the Deputy's point.
I have already stated it.
No, the Deputy was merely looking for information.
The Minister asks us to pass a Bill and I am asking him to explain what he is asking us to pass. He cannot explain. I will tell you what I understand. In this Bill the proprietor is not intended. Is not that clear?
That is clear.
Sub-section (2) (b) is dealing with the proprietor of a shop.
Not necessarily.
Why?
Where the Minister for Posts and Telegraphs appoints a sub-postmaster—I presume that is what they are called—and that sub-postmaster employs a staff, that staff is in precisely the same position as the staff employed by any other shop proprietor. But, then, there are post offices where the staffs are not appointed by the sub-postmaster; they are appointed by the Minister for Posts and Telegraphs. They, presumably, would be civil servants. In any event, it is intended that they should be excluded by the Bill.
Do I take it that the object is to exclude from the scope of the Bill——
Civil servants.
——an ordinary post office on the ground that it is a retail trade or business?
I do not know what the Deputy means by an ordinary post office. In the G.P.O. the selling of postal orders might be held to be within the scope of the Bill if the sub-section were not there.
Would it be, having regard to the definition section?
I take it that this sub-section would cover a case like the following. Suppose there is a postmaster or a postmistress and there is appointed by the Minister for Posts and Telegraphs, let me say, a girl to do the telegraph business in that particular office. In addition, because that would not take up her whole time, she might work at selling drapery or something of that kind for the postmistress, receiving pay. She would not then be covered by this Bill.
There are obviously persons employed in post offices who are appointed by the Minister for Posts and Telegraphs.
We all know that. What I want to know is, would an ordinary post office, let us say the General Post Office, or the College Green post office, be within the scope of the Bill were it not for sub-section (2) (b), and is a post office ordinarily within the Bill under the definition?
Possibly.
What is the purpose of putting in (2) (b) then?
Anybody who sold stamps to a customer would be doing a retail trade.
I want to get that stated. The Minister has not so far indicated that.
The object is to exclude from the scope of the Bill civil serwants employed in a post office.
Is that the purpose of sub-section (2) (b)? Would they be in were it not for sub-section (2) (b)?
I presume so.
Is that right?
Some would and some would not.
I think you are definitely narrowing the scope of it, if that is the meaning of it.
The Bill applies to assistants employed in a scale payment post office.
That is clear, because they are not employed by the Minister. In the case of an ordinary post office official who works behind the counter of the shop, would that person be in were it not for sub-section (2) (b)?
Yes.
He would?
There is a point I raised with the Minister on Second Reading and that is as regards sub-section (2) (a), "A member of the staff of a shop who is a relative of the proprietor of such shop," and the Minister pointed out that it would be absurd to expect a husband to allow his wife a week's holiday. I do not know that he put it quite like that.
To require him by law to do it.
That it would be absurd to compel him to do it. I think there are other sections in the Bill where the power of compulsion on the relatives might be enforced. As a matter of fact, this matter has already been covered fairly extensively on the definition section and, possibly, the Minister might hold that it would be better to raise the others on the different sections. There is, for instance, the question of the employment of juveniles, the working hours for juveniles, and the working hours for adults, which might be better brought up under the sections.
I think so.
It says here, "save where otherwise expressly provided." So far as I read the Bill, it is not expressly provided anywhere.
It is expressly provided in Part II, for example, which relates to the restriction on the employment of juveniles. If an Order were made fixing the maximum number of juveniles who may be employed in a shop in relation to the number of adults, then, in calculating the number of adult members of the staff, account will be taken of any adult members who are relatives of the proprietor of the shop and members of the staff of such shop. I cannot remember for a moment if it arises on any other Part of the Bill but it certainly does arise in Part II, that members of the staff of shops who are relatives of the proprietor, and therefore excluded from the benefits of the Bill, have nevertheless to be taken into account in relation to certain provisions.
The Minister would prefer the application of these to be raised later?
Yes.
Section 4 put and agreed to.
SECTION 5.
Question proposed: "That Section 5 stand part of the Bill."
In sub-sections (a) and (b) there seems to be a big difference between the penalties which can be imposed. Is there any particular reason for that?
In sub-section (a) we are defining the penalties which may be imposed on members of the staff of shops and, in the other, the penalties which may be inflicted on proprietors.
And people other than proprietors?
The Deputy will remember the provisions of the Bill. It is only the proprietors of shops, I think, that come in there.
Question put and agreed to.
SECTION 6.
(1) Any offence under any section of this Act (other than Part VI) may be prosecuted by or at the suit of the Minister as prosecutor.
(2) Where an offence under any section of this Act was committed by a body corporate and is proved to have been so committed with the consent or approval of, or to have been facilitated by any neglect on the part of, any director, manager, secretary or other officer of such body corporate, such director, manager, secretary or other officer shall also be deemed to be guilty of such offence and shall be liable to be proceeded against and punished accordingly.
I move amendment No. 22:—
To delete sub-section (1).
I mentioned on Second Reading that I would do so. Sub-section (1) provides: "Any offence under any section of this Act (other than Part VI) may be prosecuted by or at the suit of the Minister as prosecutor." I understand that that may be regarded as restrictive, that it may be regarded as having the effect of confining the prosecutions to the Minister and precluding anyone else from instituting proceedings. That is not what was intended, and I think it is not desirable. It is desirable that members of the staffs of shops, trade unions acting on their behalf, or any other person, should be in a position to institute proceedings for the purpose of the enforcement of the conditions of the Act. Therefore I propose to delete the sub-section, an amendment which will have that effect.
Will the Minister be entitled to prosecute?
Certainly. I think it means that anyone can prosecute, the Minister or anybody else.
Where is that authority given because, as far as I know, unless there is a special enabling section nobody can prosecute except the Attorney-General? The Guards may, under the Attorney-General, but nobody can bring a criminal prosecution. Of course a person can proceed summarily if he is injured in his own person. I would very much question if a shop assistant who is kept after hours, and who wished to prosecute his employers, would be able to bring proceedings.
There is no question that he has the power to do so, but he has to do it in a capacity which, in this country, is not regarded as very pleasant. It is in the same capacity as that in which the Minister may proceed, namely, that of a common informer. On that basis anybody can proceed and it is on that basis the Minister will proceed when this sub-section is deleted.
Would it not be desirable to have a more positive method of dealing with it?
It is quite a sound basis, although the name was associated with certain unpleasant things in our past history.
You do not propose to do anything to make the matter clearer?
I do not think it is necessary. The theory, of course, is that any citizen who knows of an offence against the law proceeds to exercise his duty as a citizen and to invoke the law.
Is the Minister quite clear that a prosecution instituted by anybody would stand in law? Sub-section (2) says "shall be liable to be proceeded against and punished accordingly." I think that Deputy Fitzgerald-Kenney is quite correct, that, on the wording of that section, nobody can prosecute but the Attorney-General. It is very doubtful if a prosecution instituted by, say, A.B. would stand in law without his being specially authorised to prosecute as a common informer. Is there any authority for such a thing?
I think so. I do not profess to have any legal knowledge. I am acting on advice but if any query is raised it will be examined and we can put in a line later to make clear who can institute proceedings.
Amendment put and agreed to.
Perhaps Deputy O'Brien would leave over Amendment No. 23 and in the meantime I shall look into the point raised.
The object is to enable a Union acting for workers to initiate proceedings where it is acting on behalf of the workers, in the same way as a worker would normally do it.
I suggest that the Minister should look into these various types of prosecutions. I think that in the Game Laws there is an express provision for prosecution by what you would call common informers.
I shall look into the matter. The difficulty, I understand, is that any provision of that kind is held to restrict the power to prosecute, even though the word "may" is used.
Amendment No. 23 not moved.
I would advise the Minister strongly to look into Section 6 very carefully, because he may find himself high and dry, with nobody having the power to prosecute except the Attorney-General.
Quite; I shall look into the matter.
Section 6, as amended, ordered to stand part of the Bill.
SECTION 7.
(4) This section shall not apply in respect of the proprietor of a shop if the only members of the staff of such shop are relatives of such proprietor.
I move amendment No. 24:—
In page 7, before sub-section (4) to insert the following new sub-section:—
"(4) If any person with intent to deceive makes, or causes or allows to be made, in any such record or notice as aforesaid, an entry which is, to his knowledge, false in any material part, or wilfully omits or causes or allows to be omitted from any such record or notice, an entry required to be made therein, such person shall be guilty of an offence under this Act."
Section 7 relates to the provision whereby the Minister may require the proprietor of a shop to keep certain records which, in his opinion, are necessary for the enforcement of certain portions of the Act. He may require a person to keep these records as often as he thinks fit. In sub-section (3) it is provided:—
If whenever a records order is in force the proprietor of a shop fails, neglects or refuses to comply with the requirements of such order, such proprietor shall be guilty of an offence under this section.
I think provision is clearly made there to deal with the case where a proprietor fails, neglects, or refuses to comply with the provisions of the order, but there does not appear to be any adequate provision, or, in fact, any provision at all, in regard to a case where a proprietor complies with the provisions of the order, but does so in a manner which results in information of a misleading character—either accidentally or wilfully misleading—being provided.
I think the Minister should take power in this section to deal with cases where a proprietor may find it necessary to comply with the Minister's order but does so in such a way as only to make available in respect of the order information of a misleading or inaccurate kind. It does not seem to me that the Minister has power to deal with cases where information of a misleading kind is provided under his requirement that certain records should be kept. I think the Minister should have power to deal with a situation of that kind and to enforce penalties.
I think it is hardly necessary to make the amendment sought by the Deputy, but I shall have inquiries made to see if the Parliamentary draftsman thinks that such a provision is necessary.
A simple line might cover it.
I shall look into the point.
Amendment, by leave, withdrawn.
I move amendment No. 25:
To delete sub-section 4.
This sub-section exempts the proprietor of a shop, who has only relatives employed, from keeping records. I am moving to delete that sub-section so as to make a person employing only relatives liable to keep records. It would certainly facilitate an inspector going to the shop if he were able to inspect records, to find out the number of employees there and the number of them who were relatives. I think that the least we should expect from people who employ only relatives is that they should keep records of those whom they employ, and thereby facilitate the inspector in his work of differentiating between ordinary employees and relatives.
That is quite sound in theory, but I want the Deputy to keep in mind Mrs. Mulligan's huckster shop in the Coombe. That is the type of shop that is going to be affected if this provision is cut out. Mrs. Mulligan will not keep the records, and in due course will have to be prosecuted. That will look a bit ridiculous, seeing that no really effective purpose is served by making her keep the records. Therefore, I would be disposed to resist the Deputy's amendment, because it is only in relation to Parts 2, 3 and 4 of the Bill that power to make those orders exists. They are: Restrictions on employment of juveniles; working hours and meal times, and the provision of holidays; and as none of the members of the family of an employer working in those shops is affected by those sections, the keeping of the records is only a formality. It would certainly be regarded as only a formality by the persons concerned, and they would not do it. That means that we would have made a provision here which was subsequently ignored, and it is bad to have any laws ignored, or else that in due course we would have to prosecute those people for a technicality. I do not think we should put ourselves in that position. It is better to leave it as it is, and I think the Deputy may be assured that the inspectors will have adequate powers under the next section to make whatever inquiries are necessary to enable them to enforce the provisions of the Act. It is better to deal with it in that way rather than put upon certain people a legal obligation, the carrying out of which is extremely improbable, and which, even if carried out, would be of very little benefit to anybody.
Let us take this lady friend of the Minister, Mrs. Mulligan, who keeps a huckster shop in the Coombe, and suppose Mrs. Mulligan has one employee in the shop, a young girl. Mrs. Mulligan is required to keep those records. Suppose a friend of Mrs. Mulligan, a few shops lower down, has in fact four relatives employed in the shop. Mrs. Mulligan's rival, with a staff of four relatives, would be exempt from keeping the records.
All living with her in the shop?
Quite. The Minister claims to know much more about this lady than I do, and I will acknowledge his superior judgment in this matter. But the Minister gives to Deputy McGowan a reason for resisting this amendment, which does not seem to me to carry any water. Let us get back to this immortal soul, Mrs. Mulligan, who has an establishment in the Coombe. If Mrs. Mulligan has one person employed in that shop, Mrs. Mulligan is obliged to keep records?
Whatever records may be prescribed.
And those are the records that Deputy McGowan wants kept. Mrs. Mulligan's rival on the other side of the street, or a few shops further down, has two or three relatives employed in her shop and living with her. Mrs. Mulligan's rival is exempt from keeping records. Why should Mrs. Mulligan, with her establishment of one, be required to keep records when Mrs. Mulligan's rival, with an establishment of three, is exempt from keeping records?
Well, of course, those relatives are not employed. A number of relatives will come under the definition—sons or daughters, or brothers or sisters, living on the premises.
As Mrs. Mulligan's shop is on the floor of the street in the Coombe, am I to understand that she comes within the measure?
As far as I understand it, there is a good deal more in it than merely a small huckster shop. Suppose you take this fancy lady, Mrs. Mulligan, and suppose she has not a shop at all in the ordinary sense of the term. Suppose she has merely a street barrow. A street barrow is a shop within the meaning of this. Suppose she employs other relatives, and suppose an order were made, she would have to keep a record of the alleys in which any relative of hers was working with this barrow. That does seem rather farfetched.
Amendment, by leave, withdrawn.
Section 7 agreed.
Question proposed: "That Section 8 stand part of the Bill."
I do not like this section at all. It undoubtedly does not go at all as far as the Hours of Employment Bill, but Section 8, in my judgment, even as it stands now, goes a good deal too far. I certainly should like the Minister to consider an amendment—although I have not put down an amendment myself—similar to that section which is in the Factory Acts. The Minister himself made reference to the Factory Acts in the discussion on the other measure as an authority for what he was doing. Under the Factory Acts there is a special provision that no statement made by a person under a particular section shall be used in evidence against him, and I certainly think that this Section 8 should have precisely the same safeguard for the liberty of the citizen. I would ask the Minister to consider that, and I hope he will do so. Otherwise I will put down an amendment myself on the Report Stage, but I hope that will not be necessary.
This section, in the manner in which it is drafted, raises a very much bigger question than the mere administration of this Bill, because, as Deputy Fitzgerald-Kenney rightly points out, I think it goes very much further than the Factory Acts or the Shop Acts. As it is drafted, it is capable of introducing an entirely new feature into what might constitute an offence, and into the charge upon which a person might be tried, and possibly convicted. It has been recognised under the Shop Acts, and I think under the Factory Acts, that a statement made by a person cannot be used against him; in other words, that he cannot make a statement incriminating himself. I think if the Minister looks at those Acts he will see that. That has been the invariable practice in respect to prosecutions under the Acts. If we are going to depart from that principle, we ought to do it in a specific Act, definitely changing the existing legal position in that regard, but we ought not to drag in the principle through this Bill.
To what part of the section is the Deputy objecting?
We cannot see the parts without reference to the existing position, namely, the Factory Acts and the Shop Acts.
I do not know what they have got to do with it. Here is a section which sets out the powers of the inspectors. To what part of it does the Deputy object?
Take sub-section (1) (c).
The Minister does not see.
He must, under penalty, answer every question which is put to him, and his answers can then be used in evidence against him.
Oh, no. He is under penalty if he furnishes any information knowing the same to be false.
Under sub-section (1) (c), he is required to give such information in regard to any particular member of the staff as may reasonably be required. If he refuses to do it, such person shall be guilty of an offence under this section.
Where does it say that?
In sub-section (2).
If he refuses to do it.
But the whole position up to date has been that he cannot be required to do anything which would incriminate himself. Will the Minister say why there has been such a departure from the existing position? Has that been specifically considered? Has it been thought desirable to depart from it? If it has, it ought to be done in a piece of general legislation, and not in particular legislation of this kind. There ought to be the onus on the State of prosecuting the person and producing evidence to convict the person; but the person should not be put in the position whereby a statement of his can incriminate him. The reverse has been the position up to now.
There is nothing about that in the section.
Has the Minister seen the relevant provisions of the Shops Act and the Factory Acts?
I want Deputy Norton to tell me how it is possible to enforce the provisions of this Act unless the inspector has power to enter at all reasonable times any shop and require the proprietor to produce to him any records which such proprietor is required to keep and to inspect and take copies of entries and records and require such information with regard to any particular member of the staff as he may reasonably require. If the Deputy can tell me any way by which an inspector——
Look at 2 (b).
That sets out the penalty that applies in certain circumstances. I am dealing with the powers given to the inspector. If there is, for instance, an order which says that not more than two juveniles can be employed for every five adults, should not an inspector be empowered to go in and ask the proprietor questions in that connection, and should it not be an offence for the proprietor to refuse to give information?
The general practice has been that a person should not be required to make a statement incriminating himself.
If the Minister looks into the Factory Acts he will see there that the answers which are made by the proprietor of the factory to the inspector, or any person who is interrogated by the factory inspector, shall not be used in evidence against him. That is precisely the amendment which I wish to have brought in here. For the first time in our laws—it was under Article 2A of the Constitution—powers were taken to compel a person to answer questions put to him. Now, Article 2A was dealing with a very dangerous conspiracy. You are putting perhaps not quite as bad a power in this measure, but here you have the thin end of the wedge. Under the legislation dealing with the hours of employment, you have gone the whole hog, but here you have not gone quite so far. I suggest the Minister should bring in an amendment on the Report Stage which will make it clear that an answer given by a man shall not be used in evidence against that man if he is prosecuted. That is in the Factory Acts and I do not see why it should not be in these Acts. It goes down to the very basis of the administration of criminal law in this land, that nobody shall be convicted upon his own statements unless those statements are made by him freely and voluntarily.
The Minister must be aware that, in the ordinary course of their business investigating serious crimes, the Guards have to give a caution to the individual if they intend to arrest him, that he need not say anything, and that if he says anything it will be taken down in evidence and may be used against him. Here you have got a completely new departure, that a person must submit to interrogation and examination and that his answers may be used in court against him. It is an entirely new departure. I venture to think that if the Attorney-General, who is a man of standing in the Irish Bar, were to see this section, and especially if he were to see the section in the Shop Hours Act, he would very nearly get a stroke of apoplexy. I do not think the Minister quite understands the gravity of the change he is bringing in. I am sure he does not.
The Minister accused me the other day of trying to pull the leg of the House—I think that is what he said. I am not; I am talking very seriously, and I inform him that he is bringing in an alarming innovation into the administration of criminal law in this country. He is upsetting the whole basis upon which the criminal law rests, that is, that no man is bound to incriminate himself. Here you have a section in which a man is bound to incriminate himself, and his answers can be used in evidence against him. I wish the Minister would talk to the Attorney-General. If he does, I am satisfied this section will not stand. I would like to know if the Minister will bring in an amendment such as I have suggested, bringing this into line with the Factory Acts. If he says he will not, I will bring in such an amendment on the Report Stage and I will fight this section as hard as I can.
I have some sympathy with the point of view of Deputy Fitzgerald-Kenney in this matter, but I do not think he correctly quoted the Factory Acts. As I understand it, he said that the Factory Acts have a provision to the effect that a statement made to an inspector using the powers given him under the Act may not be used in evidence against the person making the statement. That is not the position. The position is that there is a provision which says that the person under inspection may not be required to make a statement which can be used to incriminate him. It is not just the same thing. I do think there is a case for something like that in this section. I think it is desirable that the inspectors or Gárdaí or anybody having the responsibility of enforcing legislation of this kind should have the widest possible powers. I have no sympathy with any attempt to limit reasonable powers of inspection, but I think there is a case for the introduction of a proviso here such as exists in the Factory Acts.
I would like to put one point to the Minister. I wonder, under a section like this, does he realise the position of the ordinary individual? Has he compared the position of an individual who will be prosecuted for a breach of an Act of this nature with that of the person charged with being suspected of a grave criminal offence? Such a person cannot be compelled to make any statement except under due caution. A person suspected of committing a breach of a highly technical Act of this nature is put in this position by the inspector "Heads I win, tails you lose." If a person does not give him the information he will be prosecuted, and if he does give the information he may be convicted out of his own mouth. I do not think that is a reasonable principle of law to establish.
Again, where an inspector gets a statement from an individual under these circumstances, that statement is given verbally. It may or may not be entered by the inspector in a notebook. I suggest to the Minister that prosecutions under this Act might develop into a terrible farce in court and prosecutions may be rendered farcical if you are going to have this type of thing with an inspector: "On such a day I interrogated So-and-so and he told me..." Then the defendant states that the inspector's recollection is entirely wrong and he told him no such thing. There you will have a verbal statement to the inspector. The inspector declares that the defendant told him a certain thing and the defendant denies it, and it will be a question whether the inspector's version of what happened will be accepted in preference to the defendant's. I think that type of legislation is entirely wrong. You should not compel people to convict themselves.
Will the Minister promise to look into the question?
Yes. I hope Deputies have also studied the legislation enacted here, legislation of this character, over the last 15 years, providing for the appointment of inspectors. I thought I was considerably restrained in the powers I sought under this Bill for inspectors, at least compared with other measures passed here.
Can the Minister tell us of any Bill which was passed here that contained a provision of this kind? I do not recollect a single one.
Read some of those that were introduced by Deputy Fitzgerald-Kenney.
Well, taking them as the low watermark——
I want to know which one the Minister refers to. In Article 2A of the Constitution there is a similar provision, but I did not introduce Article 2A.
Deputy Norton is in possession.
If the Minister will point to a single Bill passed by this House, even under the ægis of Deputy Fitzgerald-Kenney, in which a provision of this kind was inserted, I shall certainly take a new view, but I venture to say that what the Minister has urged in that respect is evidence of the fact that he does not really appreciate the radical departure from the existing criminal law which is effected in this section. My complaint as regards the section is that it has a Constitution Amendment Act mentality. Under that Act, it was an offence to refuse to answer a question. That is not an offence in any other democratic country. Under the Constitution Amendment Act we made that an artificial offence for the purpose of squeezing people for certain information. If they refused to give the information, we arraigned them on that charge. That was what the Constitution Amendment Act provided and we all know the mentality in which that Act was conceived. Here we have the same mentality. If any person refuses to produce any record or refuses to give any information which an inspector may lawfully require him to produce or give——
Information mentioned at (c).
——then that person is guilty of an offence. If you refuse to give information, you are guilty of an offence. That has not been the position up to now under our criminal law and I challenge the Minister to produce an Act, other than the Constitution Amendment Act, in which a person becomes guilty of an offence by refusing to give information.
All that the section says is that an inspector may lawfully require the proprietor of a shop to give him such information, with regard to a particular member of the staff, as he may reasonably need for the fulfilment of his duties. This section provides that, if the proprietor refuses to give information, he is guilty of an offence. There is nothing in the section about the information being used to convict him.
There is. Perhaps the Minister will consult the Attorney-General.
If the Deputy consults his legal adviser, he will find that the matter is governed by the rules of evidence.
The Supreme Court held that these statements were admissible under Article 2A.
Quite clearly, the meaning of this section is that if one refuses to give information to an inspector, he will convict himself.
That is not what is there.
It is.
What the section on its face says is that if the proprietor of a shop refuses to give information which an inspector may lawfully require, it is an offence. There is nothing in the section which says that the information thus given may be adduced in evidence against the proprietor of the shop in any proceedings under any other part of the Bill.
I suggest that the section has a much wider significance than that, and that it is upsetting a well-defined criminal principle.
It is not being upset by this Bill.
A person should not be required to give information which would convict himself.
Is that being done by this section?
Yes.
Where?
2 (b).
Nonsense.
The Minister put in another section—6 (1)—empowering him to act as prosecutor. He probably got advice that that was limiting the prosecution to the Minister. If he consults the same authority as he consulted in connection with that provision, and if he looks up the Shops Act of 1912, and the Factory Acts, he will find that in both there has been recognition of the principle that a person should not be required to make a statement which will convict himself. Under this section a person can be required to make a statement to convict himself. As a layman, that is the meaning which I attach to these words.
That is obviously not the meaning which a layman would take from the words. There is nothing in the section about that.
There is.
The Deputy should consult his legal adviser.
The Deputy is not asking the House to pass the section.
He is suggesting that there is more in the section than there is.
The Minister should consult the Attorney-General and submit to him the relevant provisions of the other Acts. If he does that, he will find that we are enthroning here an entirely new principle not recognised, so far, in our criminal law. When he is doing that research work, he might also ascertain for us in what previous Bill a provision of this kind was inserted. He made the statement that it was inserted in many Bills.
Wider powers than this power.
The Minister says there is nothing in the section which provides that the information got from the proprietor of a shop will be used in evidence against him. Let us take a case in point. The inspector goes in. He tells the shopkeeper he wants to interrogate him and that, under the section, he must answer the questions. He gets answers in which the person concerned admits the offence. Will these answers be used in the court or will they not?
There is nothing in the section which deals with that. I should imagine that that would be determined by the rules of evidence.
Under the Factory Act, 1921, inspectors are given even wider powers than are given to the inspectors who will act under this Bill. But, after setting out those powers, that Act provides that no person shall be required to make a statement to be used in evidence against him. Is there any objection to inserting a clause of that kind in this Bill?
Not if it is necessary.
Have a talk with the Attorney-General.
The Bill was drafted in the Attorney-General's Department.
Was the Attorney-General's attention drawn to this?
We must assume that he is responsible for what his Department does.
An interjection by the Minister suggested that the rules of evidence would govern this matter. The Supreme Court held that statements made to a Gárda officer were admissible in evidence.
Because that was specifically provided for in legislation.
Is it not specifically provided for here?
Before Deputy Fitzgerald-Kenney could provide for that, he had to amend the Constitution.
It is as specifically provided for here as it was in the Constitution (Amendment) Act.
You cannot amend the Constitution by a side-wind.
Question put.
The Committee divided: Tá, 50; Níl, 38.
Tá
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Blaney, Neal.
- Boland, Gerald.
- Brady, Brian.
- Brady, Seán.
- Breslin, Cormac.
- Briscoe, Robert.
- Carty, Frank.
- Colbert, Michael.
- Corry, Martin J.
- Crowley, Fred Hugh.
- Davis, Matt.
- Derrig, Thomas.
- De Valera, Eamon.
- Flynn, John.
- Flynn, Stephen.
- Fogarty, Andrew.
- Friel, John.
- Fuller, Stephen.
- Gorry, Patrick J.
- Humphreys, Francis.
- Kelly, James P.
- Kelly, Thomas.
- Kennedy, Michael J.
- Kissane, Eamon.
- Lemass, Seán F.
- Little, Patrick J.
- MacEntee, Seán.
- Maguire, Ben.
- Meaney, Cornelius.
- Morrissey, Michael.
- Moylan, Seán.
- Munnelly, John.
- O Briain, Donnehadh.
- O'Grady, Seán.
- O'Reilly, Matthew.
- O'Rourke, Daniel.
- O'Sullivan, Ted.
- Ryan, James.
- Ryan, Robert.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Tubridy, Seán.
- Victory, James.
- Walsh, Richard.
- Ward, Conn.
Níl
- Bennett, George C.
- Benson, Ernest E.
- Brasier, Brooke.
- Brennan, Michael.
- Brodrick, Seán.
- Byrne, Alfred (Junior).
- Coburn, James.
- Cosgrave, William T.
- Costello, John A.
- Daly, Patrick.
- Dockrell, Henry M.
- Esmonde, John L.
- Fagan, Charles.
- Finlay, John.
- Fitzgerald-Kenney, James.
- Giles, Patrick.
- Gorey, Denis J.
- Heron, Archie.
- Keating, John.
- Keogh, Myles.
- Lawlor, Thomas.
- Linehan, Timothy.
- McFadden, Michael Og.
- McGilligan, Patrick.
- McGovern, Patrick.
- McGowan, Gerrard L.
- McMenamin, Daniel.
- Mongan, Joseph W.
- Nally, Martin.
- Norton, William.
- O'Brien, William.
- O'Higgins, Thomas F.
- O'Shaughnessy, John J.
- O'Sullivan, John M.
- Pattison, James P.
- Redmond, Bridget M.
- Rogers, Patrick J.
- Wall, Nicholas.
Tellers:—Tá: Deputies Little and Smith; Níl: Deputies Bennett and Nally.
Question declared carried.
SECTION 9.
(1) The proprietor of a shop shall display in such shop in such a position that it can be easily read by members of the staff of such shop the prescribed abstract of this Act in the prescribed form.
I move amendment No. 26:—
In sub-section (1), page 7, line 39, to insert after the word "shall" the words "in both the Irish and English languages".
The effect of the amendment is to provide that the abstract of the Act to be published shall be published bilingually.
Amendment agreed to.
I move amendment No. 27:—
In page 7, before sub-section (2) to insert the following new sub-section:—
"The provisions of the next preceding sub-section shall not apply as regards any place, not being a shop, in which retail trade or business is carried on."
These abstracts are of large dimensions, about 48 inches by 38 inches. The Minister will understand the impossibility of displaying such large abstracts on, say, a barrow, a pedlar's pack, or again, on Mrs. Mulligan's wheelbarrow in the street. It would be impossible for these people to carry these large abstracts around. On my reading of the section the ordinary coalman going through the streets retailing coal would have to have them displayed, when the Bill becomes law.
I have no objection to the amendment in principle, but it is clear that the case Deputy McGowan makes for it does not hold water. The obligation of displaying the abstract applies only where a staff is employed.
Yes.
It would not apply to a person selling goods from a barrow on the street, or to anything of that kind, unless someone was employed for wages.
A coal man might have an employee.
In such an event, the coal merchant would have the abstract for his own protection.
A coal hawker in Dublin employs a man.
I have no objection to the amendment. If persons are sent out from an establishment where they are employed in any numbers, I think the provision was intended to ensure that the employees would be aware of their rights. The sole idea of the abstract is to ensure that means will be provided by which employees could be made familiar with their rights. I am not so sure whether a person selling coal from a barrow in the street is a proprietor or an employee. In the great majority of cases I think they are proprietors. They are not in any sense employees of the merchants from whom they get the coal, and, consequently, they would not be affected by the section, unless they were assisted by a person employed for wages, which, I gather, is not the practice.
The Minister is not right in making that statement. It is the practice in Dublin for coal hawkers to employ a man, and, in the capacity of employers, they would come under the provisions of the Bill.
If the amendment is withdrawn I will have it reintroduced with the proper wording.
Amendment, by leave, withdrawn.
Question—"That Section 9, as amended, stand part of the Bill"— put and agreed to.
SECTION 10.
The Minister may make regulations in relation to any matter or thing referred to in this Act as prescribed or to be prescribed.
I move amendment No. 28:—
Before Section 10 to insert the following new section:—
(1) In determining for the purpose of this Act the number of hours during which a person has, in any week, or other period, been employed about the business of any shop, he shall be deemed to have been so employed during any time during which he was in that week or other period as aforesaid employed about the business of any other shop or in any employment to which the Conditions of Employment Act, 1936, applies.
(2) A person who has been previously employed on any day in an employment to which the Conditions of Employment Act, 1936, applies shall not be employed on that day about the business of a shop for a longer period than will, together with the time during which he has been previously employed on that day in such other employment, complete the number of hours which under this Act he may lawfully be employed to do shop work.
The object of the amendment is to prevent a person being employed on the same day, first in a factory, and later in a shop, for more than the number of hours he could lawfully be employed, if employed in the shop the whole day. There is a similar provision in the Conditions of Employment Act, which provides that a person's hours of work can be determined by finding out what he was engaged at before he undertook a particular type of industrial work. Once he was employed in industrial work that day, it is part of his employment at industrial work. Under the Conditions of Employment Act all his hours in any kind of work can be aggregated and if they bring him to the maximum hours provided under that Act, that maximum operates in respect of that person. This is an attempt to bring in a similar provision which, I think, is a useful one, under this Bill in respect of shop workers, to have something comparable to what the Conditions of Employment Act does in respect to industrial workers.
I was not quite clear from the amendment what the Deputy had in mind. In view of what the Deputy has said I am prepared to consider in principle the insertion of an amendment which will have the effect he desires. I do not think his amendment as worded would have that effect. However, that is another matter. Perhaps the Deputy would withdraw his amendment now?
The Minister knows what the Conditions of Employment Act does.
Certainly.
I want to get a provision into this Bill which will operate in the same way.
The idea is to extend it to persons employed at any occupations which come under this Bill, or occupations covered by the Conditions of Employment Act, so that they would be limited to the maximum hours that may be worked in a day or in a week to the maximum permitted by this Bill, even though a person had been at both kinds of employment during that period.
Yes. You might have a situation where a shop is run in connection with a factory, and a worker might be employed in the factory for three hours in the morning, and then work for nine or ten hours, as the case may be, in a shop for the remainder of the day. In respect of that work I want the factory and shop attendance aggregated so that the total attendance must be regarded as attendance which must be viewed in the light of this Bill.
I am prepared to draft an amendment to that effect, but I hope the Deputy will appreciate the difficulty of enforcing it.
I appreciate the difficulty, but there is a certain deterrent possible which can be used, as far as it can be used.
If Deputy Norton intends to provide for the position where the employer is the same there is a good deal to be said for the amendment. I do not think that an employer should be allowed to combine the two employments and work an employee in a manner other than would be allowed under one employment. If it is intended to extend the scope to different employments I do not see how there is going to be any check-up.
The same provision in respect of different employments is in the Conditions of Employment Act.
In the Conditions of Employment Act we made it a penalty for the worker to do so. In fact, that is the only way you can do it at all.
No one objects to that.
I want Deputy Norton to put the saddle on the right horse. In the case of one employer the worker should not be employed as is suggested here. If they are different employments I do not see how the employer can be held responsible. If Deputy Norton wants to make the worker liable to a penalty that is a matter for him.
When the Minister is considering this matter, will he consider applying it to relatives, so as to prevent persons working all day in a factory then going into the shop of a relative and working there in the evening?
If the Deputy is referring to persons who are relatives within the scope of the Bill I do not see how you could make that apply very well without altering the scheme of the measure, as a whole. You could certainly make it apply to persons following two occupations, working in a factory during the day and taking employment for wages in a shop in the evening, by making that an offence if it involved working hours exceeding those permitted in the Bill. I cannot see how you could prevent relatives of a proprietor, persons who come within the definition of "relatives," and living with him on his premises, giving a hand in a shop after the day's work. It would be a difficult thing to do that without altering that part of the Bill which exempts these relatives from coming within its scope at all.
Amendment, by leave, withdrawn.
I move amendment No. 29:—
In line 49, after the word "may" to insert the words "by order".
I think this amendment is unnecessary. The making of these regulations is done in the ordinary way. There are certain provisions for doing things by order, but the making of regulations in relation to matters to be prescribed is a mere formality. You have regulations in regard to forms and one thing or another. It is not usual to have a formal statutory order with regard to such things as the form of application, the form in which records are to be kept and such matters. All that is done by ordinary regulation, and it is a much simpler procedure than having it done by a formal statutory order.
Amendment, by leave, withdrawn.
Section 10 agreed to.
SECTION 11.
The following amendments appeared on the Order Paper in the name of Deputy Dockrell:
30. In line 53, to delete the words "Dáil Eireann" and substitute the words "each House of the Oireachtas".
31. In line 54, and in page 8, line 1, to delete the words "Dáil Eireann" and substitute the words "either House of the Oireachtas".
32. In page 8, line 2, to delete the words "Dáil Eireann" and substitute therefor the words "that House".
I suggest to the Deputy that there is no need to move these amendments. All legislation has to be drafted in the form in which it appears in this Bill at the moment, but I presume that when the Seanad is constituted again there will be some omnibus provision to deal with matters of this kind just as there was when the Seanad was abolished.
It strikes me that, under the section as worded, there is the possibility, assuming that you have the two Houses, than an Order need only be laid on the Table of one House. I think that is conceivable. There is nothing in the section which shows that there is any intention of having an Order laid on the Table of the Seanad when there is a Seanad. I suggest to the Minister that he should accept these amendments, because long before this Bill becomes law the Constitution will be in operation.
But the Second House will not be there, and our hope is that this Bill will become law before the end of January. I do not think that the Seanad will be constituted before the end of March.
I think provision should be made now to have the Order laid on the Table of the Seanad also, and ensure that, during the period before the Seanad is constituted, Orders will be laid on the Table of the Dáil. It is only a matter of drafting, and it could be easily arranged.
It is hardly necessary, I think, to do that. There will have to be some provision dealing with the new circumstances resulting from the reappearance of the Seanad. It is, of course possible to provide that Orders of this kind can only be annulled by a resolution of the Dáil with a provision in the Order to enable the matter to be discussed. This is a matter on which some difference may exist between members of the House as to what exactly the powers of the Seanad in that regard should be. In the ordinary course, I assume that in the future the practice which prevailed in the past will continue to operate, and that is when documents of this kind are laid on the Tables of the Houses they may be annulled by a resolution of either House. I would prefer that matters of this kind should be dealt with by general legislation, consequential on the constitutional changes, rather than by a specific amendment to this Bill.
I quite understand that there may be a section in a general Interpretation Act later which says that wherever the words "Dáil Eireann" appear in any statute passed after the abolition of the last Seanad that they shall be deemed to include "the Seanad". I think that is quite possible.
We had the reverse legislation when the Seanad was abolished.
But there may be certain occasions in which the words "Dáil Eireann" cannot mean "the Seanad". I do not think that you can use such universal words. I think the Minister would be well advised to put the Seanad into this Bill.
It would be taking a chance when the Seanad is not there. The Seanad will be there before the end of March unless there is a general election before the end of March.
Why not say, "until such time as the Seanad is constituted Orders shall be laid on the Table of the Dáil only"?
Would the Minister say if his prophecy about the general election is likely to be fulfilled?
I am not making any prophecies. I say that I hope the Seanad will be held before the end of March.
Amendments Nos. 30, 31 and 32 not moved.
Section 11 agreed to.
SECTION 12.
Question proposed: "That Section 12 stand part of the Bill."
Would the Minister say what types of expenses are visualised by him under this section?
For example, the expenses of the Wages Board and the ordinary administrative expenses of the Department.
What about inspectors? Does the Minister contemplate employing an additional number of inspectors, or is it the intention to utilise the existing staff?
The existing staff, so far as it is necessary to do so.
And to supplement it, I take it?
If necessary.
Would the Minister say how many inspectors he has got at the moment who would be available to do this work?
At the moment I am not able to give the number that would be available. The existing inspectorate, those who deal with factory inspections and so forth, may, presumably, be appointed inspectors for the purposes of this Act as well.
What is the strength of that inspectorate?
It is quite inadequate.
About 20.
Would the Minister say what is going to be the position of the full-time inspectors at present in the service of the Dublin Corporation and of some other local authorities? Is it his intention to take them over?
They go. There is no provision in the Bill to take them over. Most of the persons employed as shop inspectors by local authorities are also engaged on a number of other jobs.
The shop inspectors in the employment of the Dublin Corporation are exclusively engaged on that work.
One, I think.
Three. Presumably they would be pensionable by the Corporation?
Sections 12 and 13 put and agreed to.
SECTION 14.
(1) It shall not be lawful for the proprietor of a shop to employ any person whose age is less than fourteen years as a member of the staff of such shop.
Amendment No. 33 not moved.
I move amendment No. 34:—
In sub-section (1) page 8, lines 15 and 16, to delete the words "as a member of the staff of such shop" and substitute the words "to do shop work."
This is a drafting amendment.
The Minister says that this is a drafting amendment, but is that in view of finding that the phrase "to do shop work" is more all-embracing than the phrase "as a member of the staff of such shop," because that is what we were on earlier?
Yes, that is so.
Yes, but we're not going to look into the question of bringing them into line?
There is a question of clarification here.
Yes, but in view of the new clarification, which phrase are you going to stand on?
It will have to relate to the circumstances in which each phrase is used. It is because the definition of shop work is wider than the duties of members of the staff of a shop that it is necessary to make this change.
Surely the definition of a member of the staff ought to be wide enough. In any case, however, I take it that the Minister is going to try and bring them parallel?
I am not saying that. What I am saying is that it is an endeavour to see that there are no anomalies.
With regard to this matter, I suppose it means that a relative under 14 years of age cannot be qualified; that is to say that a father cannot employ his child, who is under 14, to work in his shop. Is that correct? I take it that it is the intention, but I should like to know.
He cannot be employed, but there may be some qualification necessary. I presume that a father could work his son in the shop under 14 years of age, but he could not employ him under a contract of service.
Would the Minister consider making the whole of this part applicable to relatives?
That is, in respect of the employment of juveniles?
Yes.
It could be considered.
Amendment agreed to.
Section 14, as amended, agreed to.
SECTION 15.
(1) It shall not be lawful for the proprietor of a shop to employ any juvenile as a member of the staff of such shop unless or until a birth certificate or other satisfactory evidence of the age of such juvenile has been produced to such proprietor.
(2) Whenever a birth certificate of a juvenile is required for the purposes of this section, such juvenile or his parent or guardian shall, on presenting a written requisition in the prescribed form and containing the prescribed particulars and on payment of a fee of sixpence, be entitled to obtain a certified copy of the entry of the birth of such juvenile in the register of births under the hand of the registrar or superintendent registrar or other person having the custody thereof, and forms for such requisition shall on request be supplied without any charge by every registrar of births and by every superintendent registrar or other person having the custody of the register.
(3) If the proprietor of a shop employs a juvenile in contravention of this section such proprietor shall be guilty of an offence under this section and such juvenile shall also be guilty of an offence under this section.
I move amendment No. 35:—
In sub-section (1), page 8, line 22, to delete the words "as a member of the staff of such shop" and substitute the words "to do shop work."
I presume that this is identical with amendment No. 34.
Yes.
Amendment agreed to.
I move amendment No. 36:—
In sub-section (2), page 8, lines 27 and 28, to delete the words "the prescribed form and containing the prescribed particulars "and substitute the words "such form and containing such particulars as the Minister for Local Government and Public Health may direct."
The object of this amendment is to make clear that it should be in such form and containing such particulars as the Minister for Local Government and Public Health may direct, and not the Minister for Industry and Commerce.
Why the substitution?
It is the Minister for Local Government who deals with these matters, such as the provision of birth certificates. He is responsible in that regard and it is he who will deal with that matter and prescribe the circumstances under which the certificate at this cheap rate should be given.
Amendment agreed to.
Section 15, as amended, agreed to.
SECTION 16.
(6) In this section—
the word "juvenile" does not include any apprentice who at the commencement of this Part of this Act is employed under indentures whereby he is bound to serve as apprentice for a period of not less than three years or any apprentice who, at or after such commencement, is employed as apprentice under rules made by an apprenticeship committee under the Apprenticeship Act, 1931 (No. 56 of 1931):
the word "adult" means a person whose age is not less than 18 years.
I move amendment No. 37:—
To delete sub-section (1) and substitute the following two subsections:—
(1) Subject to the provisions of this section, the Minister may, whenever and so often as he thinks fit, by order do the following things, that is to say:—
(a) apply such order to shops of a particular class (defined in such manner and by reference to such things as the Minister thinks proper) situate in any area specified or delimited in such order, and
(b) prohibit the employment, as members of the staff of any shop of that class in that area, of juveniles.
(2) Subject to the provisions of this section, the Minister may, whenever and so often as he thinks fit, by order do the following things, that is to say:—
(a) apply such order to shops of a particular class (defined in such manner and by reference to such things as the Minister thinks proper) situate in an area specified or delimited in such order, and
(b) divide, by reference to the number of adults employed as members of the staff of each of such shops, such shops into such and so many grades as the Minister thinks proper;
(c) prohibit the employment, as members of the staff of any shop which falls within any grade, of any juveniles in excess of the number appointed by such order in respect of that grade.
On examination, it was believed in practice that the provision that the proprietor of a shop who was an adult should be deemed to be a member of the staff of such shop would render inoperative the provisions of paragraph (b) of sub-section (1) of Section 16, which empowers the Minister to prohibit the employment of juveniles in his shop in which no adult is employed. Consequently, we have provided for the recasting of this section, and the purpose of this amendment is to delete the existing sub-section and to substitute the recasted sub-section for it, which deals with that point.
Amendment No. 37 agreed to.
I move amendment No. 38:—
To delete sub-section (3) and substitute the following two subsections:—
(3) Any order under this section may, if the Minister thinks proper, provide that the proprietor of a shop who is an adult shall, for all or any (as may be specified in such order) of the purposes of such order, be deemed to be a member of the staff of such shop.
(4) In calculating for the purposes of an order under this section, the number of adult members of the staff of a shop, account shall be taken of any adults who are relatives of the proprietor of such shop and who are members of the staff of such shop.
That is consequential upon amendment No. 37.
Amendment No. 38 agreed to.
I move amendment No. 39:—
At the end of sub-section (3) to insert a new paragraph as follows:—
(c) in calculating the number of juvenile members of the staff of a shop, account shall be taken of any juveniles who are relatives of the proprietor of such shop and are members of the staff of such shop.
This section confers on the Minister the power to make orders for the purpose of restricting or limiting the number of juveniles who may be employed in a shop in relation to the number of adults so employed, and the object of the amendment is to ensure that in calculating the number of juvenile members of the staff of the shop, account shall be taken of any juveniles who are relatives of the proprietor and are members of the staff of such shop. In sub-section (3) of the section provision is made that when calculating the number of adults employed in a shop the proprietor and his relatives will be taken into consideration if they are adults. Why then should not the juvenile relatives be taken into consideration in determining the number of juveniles employed there? If the Minister would consider making the whole of this part of the Act applicable to relatives, it would meet the point here, but if not I think we ought to calculate the number of junior relatives for the purpose of calculating the number of juvenile employees so as to ensure that, in fixing the proportions, an employer employing a number of juvenile employees would not have an unfair advantage.
That is the point Deputy Benson referred to, and we will consider it.
That was a different point. Deputy Benson's point was whether it would be lawful for an employer to utilise the services of his son or his daughter if that person were under 14 years of age.
In any event, I am prepared to consider his point. The Deputy wants to ensure that if there is any Order made limiting the number of juveniles, juveniles who are relatives of the employer will be taken into account.
Yes, in the same way as adults.
Very well. I shall consider it.
There is one thing that strikes me as being, possibly, rather a difficulty in this connection. There may be a juvenile relative who does not work whole-time but only for an hour or two. Whether you will count that juvenile in or not I do not know. For instance, I can quite visualise the case of a boy who comes home from school and works for an hour or two in a shop, and whether he is to be counted in as a working relative or not would be a very difficult thing to deal with. I think you will have to make it a juvenile relative working whole-time.
It will have to be in some such way as that.
Amendment, by leave, withdrawn.
Amendment 40 not moved.
Section 16, as amended, agreed to.
SECTION 17.
As to amendment 41, has the Deputy confused Section 17 with Section 19? The general question of employment in spells will arise on Section 19 whereas this new section is proposed to be inserted before Section 17. I presume it is a mistake.
I think it should be before Section 19.
It may be dealt with then, if it is applicable. The amendment is stated to refer to Part 2 of the Act, which would mean its insertion before Section 17.
It should really come before Section 19 because it relates to spells of employment.
Yes, the Chair was perturbed lest there might be a duplication of debate on it on Section 19.
If you desire, Sir, I shall leave the amendment over until we dispose of Section 19.
It would be applicable on the Deputy's showing, before Section 19?
Yes.
Very good.
Amendment not moved.
Amendments Nos. 42 to 49, inclusive, not moved.
Question proposed: "That Section 17 stand part of the Bill."
Will the Minister consider the inclusion of relatives in this section?
That is the prohibition of the employment of juveniles, who are relatives, at hours at which it would be illegal to employ a juvenile who is not a relative. That seems reasonable and I will consider that.
Question put and agreed to.
SECTION 18.
(1) It shall not be lawful for the proprietor of a shop to permit any member of the staff of that shop to continue to do shop work after the time in any day when such member has completed eleven hours work on such day.
(2) Save as otherwise provided by this section, it shall not be lawful for the proprietor of a shop to permit any member of the staff of that shop to continue to do shop work after the time in any week when such member has completed forty-eight hours shop work in such week.
(3) Notwithstanding anything contained in the immediately preceding sub-section, the proprietor of a shop may permit any member of the staff of that shop to do shop work in any week for a period in excess of forty-eight hours, so however that the number of hours of shop work done by such member does not exceed—
(a) sixty hours in any week, or
(b) two hundred and twenty-eight hours in any period of four consecutive weeks during which he is in the employment of such proprietor, or
(c) two thousand seven hundred and thirty-six hours in any year during which he is in the employment of such proprietor.
(4) Where the proprietor of a shop permits any member of the staff of that shop to do any shop work for a number of hours in any week in excess of 48 hours, such proprietor shall be deemed to have agreed to pay to such member, in respect of each hour of such excess, overtime pay at a rate per hour which represents the normal weekly rate reckoned in terms of hours, and increased by not less than twenty-five per cent.
(9) Any interval allowed during any day shall not be taken into account in reckoning the number of hours of shop work done on such day.
I move amendment No. 50:—
In sub-section (1), line 35, to delete the word "eleven" and substitute the word "nine."
Under this section, it is provided:
"It shall not be lawful for a proprietor of a shop to permit any member of the staff of that shop to continue to do shop work after the time in any day when such member has completed 11 hours' shop work on such day."
When we were dealing with the fixing of a maximum working day under the Conditions of Employment Bill the maximum working day was fixed at nine hours. But in respect of shop workers, we are apparently contemplating a position whereby a shop worker may work for a maximum of 11 hours on any one day. That seems to be a particularly unfair and arduous provision. For instance, it may be possible for an employer to organise his business in such a way that, on two days of the week, he may require his workers to work, with certain intervals for meals, for 11 hours each day. Of course a worker who is required to work 11 hours each day has practically no social existence on these days, because the 11 hours is spent in the service of his employer. The actual attendance of that worker in the service of his employer would be 11 hours, plus one hour for dinner and half an hour for tea. So that you can contemplate a situation developing where a worker would start work at nine o'clock in the morning and would not be out of the service of the employer until 12½ hours afterwards, including an hour for dinner and a half hour for tea, when his task would be to get to his home, have a meal, and get back again. He would, therefore, be in the service of his employer from nine in the morning until 9.30 in the evening. That is an unduly high maximum.
I think the nine hours' maximum provided for in the Conditions of Employment Act is adequate. I do not think we should contemplate extending the working day in shops to 11 hours. One could understand the necessity during an emergency at certain times of the year, but there is no reason why we should contemplate, as part of a normal day's work, that an employer should have the right to employ a worker for as much as 11 hours. The effect of the provision will be to enable employers to take advantage, in many cases, of the provisions of this Bill, which it is not possible for them to take advantage of to-day, because they are held down to-day in many cases by better conditions under trade union agreements. Employers can now point to the fact that, under this Bill, the Minister considers it desirable, in certain circumstances, that employees should be allowed to work 11 hours. Trade unions, presented with a situation of that kind, will really find, through the medium of this Bill, the Minister's name being used to justify the viewpoint that there is nothing improper in an employee being required to work a maximum of 11 hours in one day. I think nine hours as a maximum is reasonable, considering that there is a provision also enabling a worker to be employed on overtime within certain limits. Even after the worker has worked for 11 hours, as provided for in this section, an employer can also require him to work on overtime.
That is not so. The Deputy is wrong there. There is no provision for overtime. In the Conditions of Employment Act, 1936, a nine-hour day was provided for, with two hours per day overtime permitted. There is no provision for overtime in this section. It is an 11 hour maximum.
The overtime cannot be grafted on to the 11 hours, but it can be grafted on to the week in which the 11 hours are worked. It is possible, for instance, under the Bill for a worker to be employed in any one week up to 60 hours, 48 of which would be normal and the additional 12 would be overtime. So that in any one week you can contemplate a situation developing whereby a worker would be employed under the Bill for 11 hours on two days, making a total of 22 hours, and the remainder of the 60 hours, including overtime to a maximum of 12 hours, could be spread over the other four days. If you permit an employer to employ a worker for 48 hours per week and up to 60 hours with overtime is resorted to, you ought not to allow that employer to fix a maximum of 11 hours.
I move to report progress.
Progress reported; Committee to sit again to-morrow.
The Dáil adjourned at 10.30 p.m. until Wednesday, December 15th, at 3 p.m.