Committee on Finance. - Holidays (Employees) Bill, 1938—Committee Stage.
(1) In this Act— the expression "the Act of 1936" means the Conditions of Employment Act, 1936 (No. 2 of 1936);
the expression "the Minister" means the Minister for Industry and Commerce;
the word "employ" means employ, under a contract of service (whether the contract is expressed or implied or is oral or in writing) or a contract of apprenticeship, and cognate words shall be construed accordingly;
I move amendment No. 1:—
In sub-section (1), page 2, before line 16, to insert the following definition:—
the word "employer" includes any person and the legal representative of a deceased employer.
In this Bill the term "employer" is not defined and if the Bill is to be read in conjunction with the Conditions of Employment Act, 1936, it does not appear to me that the definition of "employer" in that Act quite fits in with the definition which "employer" is intended to convey in this Act. It seems rather unusual that the definition of "employer" for the purpose of this Act has been omitted and I put down this amendment, therefore, so that we could have a comprehensive definition of what "employer" is, because the term "employer" is mentioned in a later section of this Act and there is no precise definition of who "employer" is in the Act.
There is no necessity for a separate definition of the term "employer." In sub-section (1) of the Bill the term "employed" is defined and the section provides that cognate words should be construed accordingly. "Employer" is a cognate word and does not require separate definition. On the other point, the legal personal representative of a deceased employer is responsible for any debts due by the estate of the deceased and it is not necessary to make provision in the manner proposed by the Deputy.
Is the Minister satisfied that the legal personal representative of an employer, where the employer is dead, will be covered in the definition set out in Section 1?
And is legally advised accordingly?
Amendment, by leave, withdrawn.
I move amendment No. 2:—
Before sub-section (2), page 2, to insert the following new sub-section:—
Where work to which the provisions of this Act apply is done in any establishment wholly or partly by persons who do not receive any salary or wages in respect of their work, the person carrying on such establishment shall for the purposes of this Act be deemed to be the employer of such persons and such persons shall for the purposes of this Act be deemed to be workers in the employment of such person.
In the Bill as submitted it would appear that a person who is not getting salary or wages will not be entitled to the benefits of the Bill but, of course, we know from experience that many persons get work and do not receive salary or wages. For instance, the papers occasionally quote for our edification a most disedifying spectacle of young persons being discharged from an industrial school and securing employment with a farmer, probably at no wages whatever, board and lodgings being provided by the farmer. If a situation of that kind arises—and, of course, we know it exists to-day—the position is that that person, although a worker, working for board and lodgings, but receiving no wages or salary, would be excluded from the provisions of this Bill, and it would appear that it is intended to exploit that person still further by depriving him of the benefits which this Bill would provide. That is the situation which the amendment aims at meeting.
I would refer the Deputy again to the definition of the term "employed" in Section 1, which is given a very wide meaning there. There seems to be little doubt that a person who is working and receiving no wages or salary as a worker is, nevertheless, in the employment of the person who carries on the establishment. Of course, straightaway you can see it is very hard to say what benefit any such person can get from this Bill. The payment they would receive for annual leave or public holiday leave would be nil. Although I think it is quite clear from the definition of the term "employed" that such persons are included in the Bill, I do not know that it is going to make a lot of difference, if that is the point the Deputy has in mind. I am not clear as to what point he is striking at in his amendment, but that is my answer to it. Persons who are employed within the definition of the term "employed" in sub-section (1) are covered by the Bill. A person who is employed but who gets no wages would not get much advantage from the Bill.
Would not he get the price of his keep?
Does the Minister realise that if it is possible to exclude a person because he does not get wages or salary it would mean opening up a potential avenue of abuse in the evasion of the Act?
My answer to that is that they are not, in fact, excluded.
The Minister expressed the view that they were included. I am not so sure that the definition in Section 1 would include them in the circumstances of a case of that kind. If they are included I am quite satisfied, but I would like the Minister, since he admits he does not know the point to which I refer, to kindly undertake consideration of the matter before the Report Stage.
We have had experience of the Shops Act. Persons employed for no wages in shops are undoubtedly covered by the Shops Act, in which similar terms are used. At any rate, no question has ever been raised with the Department.
The Shops Act is in existence for only a short time and we have not had very much experience of it. The persons who would be in employment as shop workers would be in a different position from the workers whom I am seeking to have covered by this amendment. I think the Minister will agree that there is a considerable difference in the relative standing of the persons concerned. A shopkeeper, for instance, does not take in persons from industrial schools and employ them under the same conditions as apply to many people who are employed in agriculture.
If they are employed in agriculture, they do not come within the scope of this Bill.
But there are certain aspects of agricultural employment which will be covered by this Bill.
I think the terms in sub-section (1) are sufficiently wide. If the Deputy has any doubt about the matter, I will have it examined, but I do not think there is any need to do so.
Amendment, by leave, withdrawn.
I move amendment No. 3:—
Before sub-section (2), page 2, to insert the following new sub-section:—
The provisions of this Act shall apply in relation to work done in any institution as if the persons doing such work were workers employed to do such work by the persons having control of such institution unless such work is done for the purpose only of supplying the needs and requirements of such institution.
This amendment seeks to deal with a somewhat similar point. It aims at bringing institutional workers within the scope of the Bill, unless they are clearly employed for the purpose only of supplying the needs and requirements of the institution. Is the Minister satisfied that this covers institutional workers?
Even in the case where they are employed for the purpose of supplying the needs and requirements of the institution, the Deputy's amendment would narrow things.
I am not too clear that they are covered at all.
They are, definitely. The persons employed in connection with an institution—persons who are not inmates, but who are employed under a contract of service, even for the purpose of supplying the needs and requirements of the institution—are covered by the Bill.
If the Minister thinks so, I am satisfied.
I think the Minister's point is that inmates are not covered?
There is a clause in the Conditions of Employment Act which covers inmates. Does the Minister not consider that inmates should also be covered in this instance?
Not in relation to this Bill. There arise, in connection with the Conditions of Employment Act, matters which are much wider in their scope than what is covered in this Bill, certain matters with regard to hours of work and the type of work. This Bill deals solely with annual holidays.
It not infrequently arises in the case of boards of health when a vacancy occurs, say for an attendant in the institution, that the job is given to an inmate who is capable of doing the work. Does the Minister think it wise, when he is fixing certain standards of employment for the ordinary employees, to exempt inmates who work in institutions from the restrictions that he would impose on ordinary employees?
We are not exempting inmates. The Deputy is possibly misled by the amendment. We are not exempting any employee in any capacity.
I understood the Minister to say that this would not apply to inmates, whereas the Conditions of Employment Act does apply.
I said that inmates of an institution are not employed, but if they are employed, then, to the extent that they are, this Bill covers them. Under the Conditions of Employment Act of 1936 we had to deal with inmates engaged in certain forms of industrial work. Certain points arose with regard to hours of work, conditions of employment, certain safety provisions, and so forth, which had to be applied to all persons, no matter whether they were under contract of service or not. Here we are dealing only with the holidays of employees. We are providing that persons employed under certain contracts of service would have certain rights. Inmates, in so far as they are not employees, are not affected. In so far as they are employees, they come under the terms of the Bill.
In practice, what happens not infrequently is that an inmate of a public institution is made, for instance, assistant porter, and given an allowance of 5/- or 10/- a week. Whether that constitutes a contract of service for the purpose of this Bill, I do not know, but suppose it does not, the fact that the public authority could enter into that kind of arrangement with an inmate and avoid the obligation to allow that inmate to take holidays with pay, whereas if they employed an ordinary employee they would be required to give holidays with pay, might act as an inducement to the local authority to retain the services of the inmate on this quasi contract rather than employ an outside person. I think that would be an undesirable thing. It is a matter the Minister can look into—I just mention it now. Sometimes you may have an inmate doing a job and being given an allowance instead of wages. That type of person ought to be brought specifically within the terms of the Bill.
I agree with the general observations, but if the Deputy refers to the definition of employee, I think he will find that it could not be widened any further.
The Minister says that the Bill will cover the case quoted by Deputy Dillon?
No case of employment, where the contract is expressed, implied, oral or in writing, is exempt.
If they say: "We will give you 5/- a week for certain work," that is a contract of service and is covered?
Amendment, by leave, withdrawn.
Section 1 agreed to.
SECTION 2.
the expression "domestic worker" means a worker who either—
(a) is entitled under his contract of service to free lodging either in his employer's house or elsewhere, or
(b) does work of a personal or domestic character in or about the dwelling-house of his employer;
the expression "five-day worker" means a worker who under his contract of service normally works for five days only in a week;
the expression "non-working day" means in relation to a five-day worker a day on which such worker does not under his contract of service normally work.
(3) The Minister may, whenever and so often as he thinks fit, by order declare that any particular class (defined in such manner and by reference to such things as the Minister thinks proper) of employed persons shall be an excluded class for the purposes of this section, and whenever any such order is made then so long as such order is in force, the class of employed persons to which such order relates shall be an excluded class for the purposes of this section.
(4) The Minister may revoke or amend any order made under this section (including this sub-section).
I move amendment No. 4:—
"In sub-section (1), page 4, line 5, before the word "lodging" to insert the words "board and".
In Section 2 the expression "domestic worker" means a worker who is entitled, under contract of service, to free lodging in his employer's house or elsewhere. It refers to a person doing certain work of a personal or domestic character. As it stands, the section will extend the category of domestic workers, in my opinion. For instance, if a workman has a cottage free from his employer under his contract of service, he becomes a domestic worker for the purpose of this section. The person might not be a domestic worker at all, but the fact that he occupies a free cottage on his employer's land is capable, in my opinion, of making him a domestic worker under this section. I hardly think that that is the intention of the Minister. It looks as if once you put an employee into the cottage you make him a domestic employee, and as such he is not entitled to holidays.
The Minister may say that as domestics they are entitled to 14 days, but the Minister knows that under other sections of the Bill you cannot get the 14 days unless you are in almost constant employment. I think the omission of the words "board and" in this section is going to enable a lot of people to be described as domestic workers who are not, in fact, domestic workers. There can be no purpose in drawing the section as it is unless it is intended to enable persons to be described as domestic workers merely because they are living in their employer's house.
I do not think the Deputy has fully appreciated what the effect of his amendment would mean. For the purpose of framing the administration of this Bill we have divided the workers into two classes and to these two classes we applied the terms domestic and non-domestic workers. That is purely for the purpose of clarification and not for the purpose of any special distinction except that we are to distinguish between the two classes by a reference to the conditions under which they were employed. The effect of the Deputy's amendment would be to provide that the worker, who was employed under conditions that secured for him lodgings only, would not get compensation in respect of that particular lodging during his holidays. As the Bill stands the worker who gets board and lodgings or lodgings only is entitled to compensation of a sort in respect of that board and lodging during the holiday period. If the Deputy's amendment went in, only the worker who got board and lodging would be entitled to get compensation. We must take it that the board and lodgings provided by the employer were taken into account when the wages, which the worker was to get, were fixed. The worker's wages were fixed lower because of that compensation paid. The Deputy's amendment is to restrict the payment of that compensation only in the case of the worker who gets board and lodgings and to exclude from the benefit of the compensation the workers who get lodging only. There is also the further problem that the workers whose conditions of employment secure for them board and lodgings or lodgings in the house of their employer might find it a great source of loss and personal inconvenience to leave the employer's residence for the holiday period. It might happen that that would be something that they would not wish to do. Consequently, we have made special provision for workers in that category. The inclusion of the terms board and lodging would restrict the compensation to a narrow class. I think the benefits of the clause should be extended to that class whether or not they get board.
But the Minister has not adverted to the case of the man who is normally entitled to holidays and is described as a domestic worker because he has free lodgings. That free lodgings may mean the tenancy of his employer's house and it may mean that as a domestic worker he is not entitled to holidays.
Yes, but the Deputy should deal with the problem which I mentioned. First of all can you, in every case, insist on that man taking his holidays and put him out of his lodgings; and if you do put him out of his lodgings must you compensate him for the loss? Those lodgings were taken into account when his wages were fixed. The term is a term applied to two classes of workers but 95 per cent. of those whom the Deputy has in mind will, in fact, be domestic workers. The problem in relation to all these workers who have these conditions of employment is the same, namely provision for the special circumstances in which lodgings are provided in order to ensure that compensation is to be paid if the lodgings are to be given up. This section is to provide an alternative.
Again I am afraid that the Minister has not adverted to the situation that arises where a person is a tenant of a residence in a cottage owned by his employer. The mere residence in that cottage where a person pays no rent makes that person a domestic worker. A domestic worker is entitled to no holidays. The Bill ought to ensure that mere residence in a cottage owned by an employer does not deprive the person of his right to public holidays to which as a non-domestic worker he is entitled.
What the Deputy means by a holiday is that the worker must not be allowed to work on that day. Here are workers who get payment in two forms, partly wages and partly free lodgings in dealing with these workers we must make special provisions. We cannot say that on St. Patrick's Day they will not be allowed to work.
Where does the Minister say that arises? I ask the Minister to remember that the whole family is living in that cottage.
In 99 cases out of 100 the lodging is in the dwellinghouse of the employer. It would be unreasonable to think that the employer would give a week's holiday to a person living in his own residence. That would be asking an undue concession. We have to make precisely the same conditions for the class of workers under the Shops Act. The same consideration arises.
I would not have submitted the amendment if this section limited the contract to free lodgings in the employer's house. I can appreciate the conditions with which the Minister was confronted. Then the word "elsewhere" arises. It seems to me that if the employer provides the worker with accommodation on his land, the providing of that accommodation makes the worker a domestic worker for the purpose of the section. Is it not possible for the Minister to meet the case I have put to him namely, not to provide that the occupation of a cottage on his employer's land or elsewhere will make the person a domestic worker for the purpose of the Act? I am with the Minister on the point that you cannot give a person holidays while he is in his employer's residence and walking about the place, asking somebody to get him his breakfast. I can quite understand that point. But the Minister is going much further when he says "elsewhere." What I want to ensure is that mere occupation of a cottage on the employer's land will not make the person a domestic worker.
What is the disadvantage? The Deputy has misread the Bill. The employer is entitled to give days of annual leave in lieu of public holidays. As far as public holidays are concerned, there is no difference between the domestic worker and the non-domestic worker.
There is a harder qualification.
That may be so, but the Bill deals with the circumstances of the two cases we are considering. We have to deal in the Bill with the general type of worker we have in mind. So far as public holidays are concerned, this Bill does not give a right to a holiday on a public holiday to anyone. It provides that an employer can substitute an additional day's annual leave for any worker whom he desires to have working for him on a public holiday, other than industrial workers, of course.
It is easier to qualify for the public holiday under the Bill, and, consequently, once you qualify, you can get the substitute leave, but you are depriving the person of qualifying for a public holiday under the section.
I would not say so. I should say that, having regard to the circumstance that free lodging is provided, the longer qualifying period is necessary, and it will probably work out quite fairly.
According to Deputy Norton, the agricultural labourer who has free board and lodging in a farmer's place becomes a domestic worker under the Bill.
Agricultural workers are not affected by the Bill at all.
But, according to the Deputy, when they get board and lodging, they become domestic workers.
Read the Bill. That is the answer to the Deputy.
Clearly, agricultural labourers are not in the Bill at all.
Amendment, by leave, withdrawn.
I move amendment No. 5:—
In sub-section (1), page 4, to delete lines 15 to 17 inclusive.
We are deleting all reference to five-day workers from the Bill. All the provisions of the Bill should apply alike to workers doing a short week, and this amendment removes the definition of the expression "five-day worker". If Deputies desire to discuss the change, I think they might do so on some of the subsequent amendments which deal with workers on a short week.
This is the first of a series of amendments?
The first of a series designed to delete any special reference to five-day workers.
The acceptance of this amendment will not prevent us having a full discussion on the other amendments which deal with the position?
It will not affect it in the least.
Amendment agreed to.
I move amendment No. 6:—
In sub-section (1), page 4, lines 18 and 19, to delete the word "five-day".
Amendment agreed to.
I move amendment No. 7:—
Before sub-section (3), page 4, to insert the following new sub-section:—
(3) A worker to whom the provisions of this Act apply who normally does work for two or more employers shall be deemed for the purposes of this Act and of the Act of 1936 to have completed eighteen hundred hours or such other number of hours as is mentioned in either of these Acts for the purpose of determining his title to annual leave if in any prescribed period the total number of hours during which he has worked for all such employers amount in the aggregate to eighteen hundred or such other number of hours as aforesaid.
This amendment was put down to deal with a situation which may arise under the Bill. It is necessary, in order to qualify for holidays, to have 1,800 hours' work, and a situation may arise in which a person may be employed by one employer for 1,000 hours, and by another for 800 hours. By reason of the fact that he has not rendered the 1,800 hours' service to one employer, although he is working as long as any other worker who is entitled to holidays, he may not, in fact, be entitled to holidays under the Bill. I agree that it is quite a difficult situation to meet, and I put this amendment in for the purpose of having the matter discussed here in the hope that the Minister, with the aid of his draftsman, can devise an amendment to meet such a situation. You have the case of workers employed in part-time employment and working a certain number of hours for one employer and a certain number of hours for another. They might be in regular employment with both employers and so employed for a long period of years, but it does not appear to me that they can get holidays because they do not qualify in respect of one employer in particular, and there is no means by which they can aggregate their total service for the purpose of qualifying.
The problem which the Deputy has in mind arose early in the preparation of the measure, but no satisfactory solution has been thought of, and I doubt very much if a satisfactory solution is possible at all. It would, in my opinion, be impossible to act on the proposal in the amendment for the simple reason that nobody will say who would pay in the circumstances contemplated. In the case of a worker who works for a number of different employers during the week— a charwoman, for instance, who works for a different employer every day of the week—it would be unreasonable to expect any one employer to pay for holidays. The position is, and, I am afraid, must remain, that unless a worker qualifies in respect of a single employer, he cannot get holidays at all. If there is any other solution which Deputies can suggest which is practicable, I am prepared to consider it, but I think they will have difficulty in devising one. The matter was the subject of prolonged consideration, and I came to the conclusion that there was no other solution of the problem possible.
I think that would apply to a great extent to transport workers, and particularly dockers who might be working for three different stevedores in the week, and might work well over 1,800 hours in the year. What would be their position?
They do not become entitled to holidays unless they qualify in respect of a single employer. A man can qualify who is working three days a week.
But they might work for three different employers.
I invite the Deputy to devote his attention to the problem and see if he can think of a better solution.
The State, by the absence of the provision of the kind I have endeavoured to make in my amendment, will be able to evade its responsibilities to quite a large number of its employees. The State employs, I think, 1,100 persons who are described as allowance deliverers in the Post Office who work not more than 18 hours per week. That represents 900 hours in 50 weeks. These persons may be employed for another 900 hours by an outside employer and they would qualify for holidays under the Bill, if their two periods of service were aggregated; but if they are not allowed to calculate their two periods of service, they get no holidays, and the State, which ought to be setting good example in a matter of this kind, will be in the position of employing a very large number of persons and giving them no holidays whatever.
Which employer should pay? The Deputy is merely trying to confuse matters by bringing in the State. Let him deal with the case of the charwoman who works for different employers. Which employer should pay in that case?
I think that is a difficulty all right, but it is not the same kind of difficulty as that I have just mentioned. Many of the persons I have referred to have been employed by the State for 20 years and will be probably continued in the employment of the State for another ten or 20 years. There is no question of interchangeability of employer so far as the State is concerned. They have long periods of service and are likely to have long periods of service in the future. There is a very difficult situation to be met and something should be done in cases of that kind to ensure that the State, at all events, would pay its proportion of its liability. They are not casual employees. The Post Office could tell you that they have some of them in employment for 20 years and hope to keep them for another 20 years. It ought to be possible to deal with such a situation and to put on the State the obligation of paying some proportion in respect of its employees. It could be done, I think, by a provision which would ensure that entitlement to pro rata holidays would be guaranteed or recognised in the cases of persons who had a certain minimum period of service with an employer, but it is quite unfair that a private employer must give 14 days' holidays to a worker if he employs him for 1,800 hours, and that the State can employ him for half that period and pay nothing.
So can a private employer.
In similar circumstances, yes, but I am quoting the case of the State with regular employees providing them with only part-time employment and doing that as a normal feature of its activities.
No obligation is being put on a private employer that is not being put on the State.
The Minister is missing the point. Take the case of an ordinary private employer. Let the Minister throw his mind over any industry he knows.
The dock labourers are as good an example as any.
That is a great hardship too, but there is much more interchangeability of employer on the docks than in the case I have quoted, and the Minister does not answer the case I have made by quoting the dock labourers. Here is a case where the State employs a substantial number of persons for 900 hours per year. It has been doing that since 1900, and many of these people have 20 or 30 years' service and will have more. It is easy to recognise them as normal employees of the State. No private employer employs part-time workers on the scale on which the State employs them. The State resorts to a disgraceful scale and appears to be hopelessly incompetent in dealing with the situation. We have got a position, therefore, where you have regular part-time employees in the service of the State, and I think it ought to be possible for the Minister to devise an amendment to this Bill whereby such employees would get a pro rata period of holidays in respect of their part-time employment with the State. If they can produce evidence of continuity of part-time employment with an outside employer, let them also get from that employer whatever they are entitled to, but the State ought not to be allowed to get away with circumstances under which the State may be able to ride away from its responsibilities in connection with a person in such circumstances as I have described. I recognise, of course, that there is difficulty in this connection, but I hold that that difficulty is not insurmountable, and I should like the Minister to undertake to examine the matter with a view to devising an amendment to meet the situation between this and the next stage of the Bill.
The matter has been very carefully examined, but I do not think there is any practical solution of the difficulty. If the Deputy thinks he can devise a solution, I should be glad to have him try his hand at it. There is provision for reducing the period by order if a case can be made for it, but I doubt very much if any reduction, which could be seriously contemplated, could be made for the person working 1,800 hours.
Supposing the worker has worked three days a week in the circumstances I mentioned before, which might average 1,800 hours, will he get any pro rata holiday?
Not unless he has done the 1,800 hours, as I said.
The Minister has expert draftsmen at his disposal who are quite capable of devising an amendment, I suggest, to meet this situation, and I should prefer that his draftsmen would assist him in producing an amendment to meet this case, subject to a minimum with the one employer.
We have power to do that in the Bill.
I think that when the Minister speaks of the possibility of reducing the qualifying period in the Bill, he is dealing with a different situation.
There is a safety valve in connection with the matter in sub-section (3) of Section 10, which says that the Minister may make regulations varying in respect of all or any particular class or classes of non-domestic workers, all or any of the periods of 1,800 hours, 300 hours or 150 hours mentioned in sub-sections (1) and (2) of Section 10 by substituting for such period or periods either such other number of hours or such number of days as the Minister thinks proper. Now, there is power to do it, accordingly.
But I think the Minister will agree that, when that section was put in, if he saw it before it was put in, his mind was running along the same lines that he indicated in connection with the Conditions of Employment Bill.
That section has been taken completely from the Bill.
I am sure the Minister is aware of the reason he gave for that section in the Conditions of Employment Bill, which was that you might be up against a situation whereby the working week might fall below 48 hours or 44 hours to 40 hours, and therefore the qualifying period for holidays is an inordinately high standard for people to attain if the working week is 40 hours.
They are still the reasons, and I think they justify me in saying that, although we can deal with a reduction to even 36 hours, I doubt if we can do so where the normal is 1,800 hours.
It is the normal so far as the individual employer is concerned.
But a worker might work 48 hours in a week, and a worker working 40 hours in that week may get holidays while the man working 48 hours regularly, in certain circumstances will not get them. I suggest that the Minister's draftsmen can meet the situation with regard to prescribing a minimum period of service with an employer so as to eliminate the difficulty of trying to meet the case of the casually employed charwoman and so on.
You do not have to amend the Bill. What you have to do is to draft an order under sub-section (3) of Section 10, but I warn the Deputy that I do not think it is practicable to do so.
Will the Minister undertake to introduce an amendment which will enable a regularly employed part-time worker, employed by two employers, to get a pro rata period of employment where his service in the aggregate to both employers would reach 1,800 hours? I see the difficulty in the case of a private employer, but that is no reason why the State should not grant the worker some holidays in respect of the work he does for the State. In effect, it means that the State will pocket what the man is entitled to. I am only trying to meet the normal situation. I am not trying to deal with an extraordinary situation. I recognise that there are difficulties, but I should like the Minister to try his hand at meeting the situation.
There are difficulties, but I should like the Deputy to try his hand also at meeting the situation.
I shall make an effort to do so if the Minister will also try his hand at it.
You must stick to your qualifying period.
Will the Minister undertake to look upon the matter sympathetically?
I am prepared to consider it, certainly.
Sympathy may be assumed in all cases.
Amendment No. 7, by leave, withdrawn.
I think amendments Nos. 8 and 9 might be argued together.
I move amendment No. 8:—
To delete sub-section (3).
This sub-section enables the Minister to declare that any class of employed persons shall be excluded from the provisions of the Act. That means that persons now normally entitled under the Act to holidays and annual leave may be deprived of these rights by an order of the Minister. We have got to bear in mind that in certain respects this Bill replaces certain provisions of the Conditions of Employment Act of 1936, and if a particular class of persons is excluded from this Bill that class will be also excluded from the provisions of the 1936 Act. I do not think that the Minister should have this power, and the Minister has not been very consistent or, I think, wise in the use of powers which have been given to him under similar legislation. For instance, he had powers under the Shops Hours and Trading Act to make orders and to revoke orders, and we all know the vacillating way in which these powers were used by the Minister recently. It was intended that there should not be Sunday trading, but there was an agitation over the matter just before the election and the Minister availed of his powers under the section to revoke the prohibition on Sunday trading. Then we have had another example in respect of the portion of the Act relating to holidays, where the Minister made another order effectively weakening the position of workers in respect of weekly half-holidays.
If we intend, as a general principle, to give workers the rights enshrined in the positive sections of this Bill, I think it is quite unfair to give the Minister power to revoke, not merely sections of this Bill, but of the previous Bill enacted in 1936. He ought not to be given powers of that kind, which might be used in a way, such as that in which they were used in connection with the Hours of Trading Act, that would inflict hardship on workers. It was intended to have prohibition on Sunday trading, and yet we have the Minister making an order permitting Sunday trading—and all done hurriedly and excitedly just in advance of an election. It is actions of that kind that raise questions as to the propriety of giving the Minister authority to use those powers in such a capricious manner, and I want in those two amendments to deprive the Minister of those powers, because I think the rights in the legislation should stand, and should not be changeable by the Minister as they may be if there is another agitation. We may, for instance, be confronted with a situation such as that envisaged by Deputy Gorey on the Second Stage, when he said:—
"Why give holidays to a domestic servant employed by a farmer's wife when the farmer's wife cannot get holidays?"
That point of view may develop, and it may generate into a storm. We may find that, although it is the intention of the Bill to give holidays to domestic servants, an agitation may develop, and the Minister elected by popular franchise, conscious of a possible loss of popularity, may be driven into a position in which he will use the power in this particular section to revoke the general intention of the Legislature to provide holidays for persons of that kind. The Minister is in a stronger position if he has not those powers. He can tell all the folk who generate those agitations that he has no power in the matter, that the Oireachtas passed legislation, and there it is. If those people knew that the Minister had no power of that kind they would realise that there is no purpose in generating such an agitation in the hope of getting the Minister on the run in this instance as they were able to get him on the run in the case of the hours of Sunday trading.
I do not think the Deputy chose a very good illustration. So far as the Shop Hours Act is concerned, I think we tried to move too fast in the matter of restricting Sunday trade. The Deputy is entirely wrong in suggesting that the conditions of employment of shop assistants were affected by the amendment of the provisions of that Act which the order made. The hours of work of shop assistants were restricted by another Act which has not been amended. I have no very strong recollection of any violent demand from members of the Labour Party for revocation of that order during the election. On the contrary many members of the Labour Party were canvassing votes on the grounds that the Government were introducing legislation contrary to the workers' interests. That applies not merely to the Labour Party but to every Party in the House other than the Government Party.
Including the Government Party?
I think that the example which the Deputy has given is a very strong argument in favour of the creation of safety valves of this kind in respect of this type of legislation, which is new legislation, the full effects of which we cannot appreciate in advance. We had a safety valve. When we found we had gone too fast we were able to go back, reconsider the position, and then move more cautiously. I think we should have the same power here. I want to suggest to the Deputy that there may be cases where the use of this power would be of benefit to the workers. We have had cases in the past where the workers could contend that the existing privileges which they enjoyed would be interfered with by the Bill, and who could ask on that account to be exempted from the Bill. If such a case did arise we should have power to deal with it. It is true that any Minister administering this Bill would have to take into account and act in accordance with the intentions of the Legislature in passing it. Clearly if the Dáil passes this Bill, and it becomes law, it is the intention of the Legislature that all workers of the classes covered by the Bill are to get annual leave, that is seven days' annual leave plus public holidays, or in the alternative 14 days' annual leave. That is what the Bill provides for, and the powers conferred by this section can only be operated where it is more in the interests of the workers affected that they should be excluded from the Bill than otherwise, although there may be special types of employment which cannot be easily defined and in respect of which those powers would also have to be used for exclusion purposes, such as the worker one hears of occasionally who is employed say at an annual fee of £1 to do certain minor duties of one kind or another, which might involve a couple of hours' work in the week or in a month. That type of employment might arise, and some exclusion may be necessary in respect of it, although it would be clearly impossible more minutely to define those workers by class.
How did that person get any benefit under this Bill?
I am merely justifying this section on the grounds that it is necessary to have a safety valve. If we can devise safety measures now and put them into the Bill I say we should do it, but we have to recognise—and experience justifies us in assuming— that cases will arise which have not been foreseen, and in respect of which those powers may have to be exercised. If we can foresee the difficulties now and safeguard against those difficulties by positive provisions in the Bill we should do it, but although we spent a very long time on this Bill and tried to make it as watertight as possible, I am satisfied that experience will show that the powers in this sub-section will have to be availed of in some cases, generally in the interests of the classes of workers who will find that existing privileges may be jeopardised if they were not excluded from the scope of the Bill.
Question put: "That the sub-section proposed to be deleted, stand."
The Committee divided: Tá, 66; Níl, 9.
Tá
- Allen, Denis.
- Bartley, Gerald.
- Beckett, James Walter.
- Beegan, Patrick.
- Benson, Ernest E.
- Boland, Gerald.
- Brady, Brian.
- Brady, Seán.
- Breathnach, Cormac.
- Breen, Daniel.
- Breslin, Cormac.
- Brodrick, Seán.
- Childers, Erskine H.
- Cole, John J.
- Coogan, Patrick.
- Corry, Martin J.
- Cosgrave, William T.
- Crowley, Tadhg.
- Derrig, Thomas.
- De Valera, Eamon.
- Dockrell, Henry M.
- Dowdall, Thomas P.
- Doyle, Peadar S.
- Esmonde, John L.
- Fagan, Charles.
- Flynn, John.
- Flynn, Stephen.
- Fogarty, Andrew.
- Friel, John.
- Fuller, Stephen.
- Giles, Patrick.
- Gorry, Patrick J.
- Harris, Thomas.
- Hogan, Daniel.
- Hughes, James.
- Humphreys, Francis.
- Kelly, James P.
- Kelly, Thomas.
- Killilea, Mark.
- Kissane, Eamon.
- Lemass, Seán F.
- Little, Patrick J.
- Lynch, Finian.
- McDevitt, Henry A.
- MacEntee, Seán.
- McFadden, Michael Og.
- Maguire, Ben.
- Meaney, Cornelius.
- Morrissey, Michael.
- Munnelly, John.
- O Briain, Donnchadh.
- O Ceallaigh, Seán T.
- O'Loghlen, Peter J.
- O'Reilly, Matthew.
- O'Rourke, Daniel.
- O'Sullivan, Ted.
- Rice, Brigid M.
- Ruttledge, Patrick J.
- Ryan, James.
- Sheridan, Michael.
- Smith, Patrick.
- Traynor, Oscar.
- Victory, James.
- Walsh, Laurence J.
- Walsh, Richard.
- Ward, Conn.
Níl
- Corish, Richard.
- Davin, William.
- Everett, James.
- Hickey, James.
- Hurley, Jeremiah.
- Keating, John.
- Keyes, Michael.
- McMenamin, Daniel.
- Norton, William.
Tellers:—Tá: Deputies Little and S mith; Níl: Deputies Keyes and Corish.
Question declared carried.
Amendment No. 9 not moved.
Question proposed: "That Section 2, as amended, stand part of the Bill."
In this section a worker is defined as " a person of the age of 14 years or upwards who is employed other than," and then you have a series of exceptions extending from paragraph (a) to paragraph (o). But it appears to me that after one has allowed for all these exceptions the apprentice in a country shop may be included. I want to know if it is intended to include him here.
Paragraph (c) excludes him, surely.
No, because he is specifically excluded from the Conditions of Employment Act as not being a person in receipt of wages. I raised that point with the Minister on the Conditions of Employment Act and it was agreed that an apprentice, resident in the house of his employer who was receiving board, lodging and perquisites but no wages, was not a worker within the terms of the Conditions of Employment Act because he was not in receipt of wages. He is, therefore, not saved by paragraph (c) and I want to know if it is intended to include him? If it is intended to include him, is he to be included as a worker or as a domestic worker— because paragraph (a) says—and there is obviously a mistake here because there are two paragraphs (a) in sub-section (1)—that:—
"the expression `domestic worker' means a worker who either is entitled under his contract of service to free lodging either at an employer's house or elsewhere, or".
I would suggest that an apprentice living in would be a domestic worker. We ought to clear our minds whether it is intended so to describe him or not.
That does not arise on the Deputy's point. The Deputy's point is whether a person who is a member of the staff, a worker who is not receiving wages, is within the scope of the Bill. I refer the Deputy to the terms of the Shops (Conditions of Employment) Act in which the expression "member of the staff" is defined. The same terms are used in this Bill. The term, as defined in the Act means—
"when used in relation to a shop, any person who does for the proprietor of such shop, any work which is wholly or mainly performed within or in the precincts of such shops, and is wholly or mainly in connection with the serving of customers, the receipt of orders or the dispatch of goods."
That is not industrial work. Then, in the middle of it, it is clearly stated—
"whether he does or does not receive wages for his services."
I think there is no ambiguity whatever about the scope of the term. If he is a member of the staff of the shop he is excluded from the Bill.
But he is covered by the other Act?
He is excluded because he is included in the other Act.
The Shops (Conditions of Employment) Act dealt with much more than holidays. This Bill deals with holidays.
There was another Act which dealt exclusively with wages.
Yes, and hours of opening.
Perhaps that was the Act under which he was excluded.
Section put and agreed to.
SECTION 3.
Question proposed: "That Section 3 stand part of the Bill."
Would the Minister indicate what are the general intentions in connection with mining work?
To the extent they are covered here. Certain classes of mining are excluded, but only certain classes. A person who is employed in extracting from a mine any substance other than coal, fireclay, slate, gypsum, stone or any prescribed substance, is excluded. A person who is engaged in mining coal or such substance is covered by the Bill. In fact, these are the only forms of mining carried on here at the moment. We have not automatically covered other forms of mining which are not being carried on but which may be carried on at some future date. We can only apply the Act to them when we have a full knowledge of the circumstances, but so far as any classes of mining work carried on in the country at present are concerned, the workers in them are covered by the Bill.
Are all existing types of mining covered by the section?
They are covered in so far as we have any knowledge of them. We have power to cover other forms of mining if there is any doubt.
You prescribe the substance, and then you cover them?
Section put and agreed to.
SECTION 4.
(2) Where a non-domestic worker who is a member of the Reserve Force of the Defence Forces of Ireland is absent from his employment for the purpose of attending and performing his duty as such member at any initial training, annual training, or test mobilisation, such non-domestic worker shall, for the purpose of reckoning any period of employment or of continuous employment within the meaning of this Act, be deemed to have been in his said employment during his said absence, and accordingly the period of his said absence shall for the purposes of this Act be reckoned in the said period of employment or continuous employment.
I move amendment No. 10:—
In sub-section (2), page 5, to delete the word "non-domestic" where it occurs in lines 45 and 49.
I cannot understand why this restrictive provision has been inserted in the section. Why restrict the operation of the Bill to non-domestic workers? Let us take the case of a hired workman who gets paid in lodging, or a man entitled to free lodging, for example, or a free cottage. Surely he should be entitled to the same concessions as a member of the Defence Forces who is a non-domestic worker, or is it intended that non-domestic workers should not join the Defence Forces?
I am prepared to consider that. I think there is a case for the Deputy's amendment but I should be glad to leave the question open for examination. As far as I can see at the moment there is no reason why the Deputy's amendment should not be accepted.
Amendment, by leave, withdrawn.
Section 4 ordered to stand part of the Bill.
SECTION 5.
(1) In this Act—
the expression "employment year" when used in relation to a worker means a period of three hundred and sixty-five days (including any day which is the 29th day of February) commencing on the day on which such worker last entered the employment in relation to which the expression is used or on any anniversary of that day;
the expression "the first half" when used in relation to an employment year of a domestic worker means a period of one hundred and eight-three days commencing on the first day of such employment year; the expression "the second half" when used in relation to an employment year of a domestic worker means so much of such employment year as is not included in the first half of such employment year; the expression "employment half-year" when used in relation to a domestic worker means a period which is either the first half or the second half of an employment year of such domestic worker.
Where a worker entered on employment on the 29th day of February he shall for the purposes of the interpretation of the definition of the expression "employment year" be deemed to have entered that employment on the next following day.
(2) Where—
(a) the ownership of any business, whether carried on for profit or gain or not, is transferred by act of the parties or by operation of law during the currency of an employment year of any worker who immediately before such transfer was employed by the person (in this sub-section referred to as the former employer) carrying on such business, and
(b) such worker continues after such transfer to be employed by the person (in this sub-section referred to as the new employer) to whom such business is transferred, the following provisions shall have effect, that is to say:—
(i) such worker shall, for the purposes of this Act (including sub-section (1) of this section), be deemed to have been in the employment of the new employer as on and from the beginning of such employment year;
(ii) if such worker has been granted before such transfer any whole holidays during such employment year, such whole holidays shall, for the purposes of this Act, be deemed to be granted by the new employer.
I move amendment No. 11:—
In sub-section (1), page 6, line 3, to delete the word "including" and substitute the word "excluding".
This is only a drafting amendment.
Amendment put and agreed to.
I move amendment No. 12:—
Sub-section (1), page 6, to delete lines 16 to 19, inclusive.
This amendment is consequential on an amendment that is to be moved later. We altered the arrangement in respect of the leave of domestic workers, consequently this expression "employment half-year" is not included in the new draft. There is no change being made in essénce but the simpler form that is being adopted involves the dropping of this expression.
Amendment put and agreed to.
I move amendment No. 13:—
In sub-section (2), page 6, lines 30 and 31, to delete the brackets and the words contained therein.
This is also a drafting amendment. The words and the brackets are not used elsewhere in the Bill.
Amendment put and agreed to.
Section 5, as amended, ordered to stand part of the Bill.
Section 6 ordered to stand part of the Bill.
SECTION 7.
(1) Subject to the provisions of this section, each day which is, by virtue of Section 7 of the Act of 1936, a public holiday, for the purposes of the Act of 1936, in respect of an industrial worker shall, for the purposes of this Act, be also a public holiday in respect of such worker.
(2) Whenever, in the case of a person who is an industrial worker and a five-day worker, an appointed holiday falls on a non-working day, the following provisions shall have effect, that is to say:—
(a) In case a day is substituted under Section 7 of the Act of 1936 for such appointed holiday and the day so substituted is a non-working day, the day so substituted shall for the purposes of this Act be deemed not to be a public holiday in respect of such person;
(b) in case no day is so substituted for such appointed holiday, such appointed holiday shall for the purposes of this Act be deemed not to be a public holiday in respect of such person.
(3) Whenever, in the case of a person who is an industrial worker and a five-day worker, an appointed holiday falls on a day, other than a non-working day, and a day, which is a non-working day, is substituted under Section 7 of the Act of 1936 for such appointed day, the day so substituted shall for the purposes of this Act be deemed not to be a public holiday in respect of such person.
(4) In the two next preceding subsections the expression "appointed holiday" means a day which is a public holiday by virtue of sub-section (1) or sub-section (2) of Section 7 of the Act of 1936.
(5) In this Act the expression "public holiday" when used in relation to an industrial worker shall be construed in accordance with the foregoing provisions of this section.
The decision on amendment No. 14 should govern amendment No. 21 and, possibly, amendment No. 16.
Amendments Nos. 14, 15, 16, 19 and 20 might be discussed together.
No. 14 to 20, if the House desires.
Nos. 19 and 20 are obviously dependent on Nos. 14 and 16. The Deputy may move amendment No. 14.
I move amendment No. 14:—
To delete sub-section (2).
I think the section which deals with the five-day worker is the one blemish in this Bill. It is certainly the one serious blemish in the Bill, because although this Bill is introduced for the purpose of providing holidays and allowances in lieu of holidays for certain classes of workers, when it comes to the five-day worker, the Bill is definitely reactionary when compared to the present position. The rights of the five-day workers are more definitely acknowledged, and more generously satisfied under the Conditions of Employment Act, 1936, than they will be when this Bill passes. The section dealing with the five-day worker is a very definite effort on the part of the State to take away from him rights which he has at present under the 1936 Conditions of Employment Act. The section deals, of course, with the five-day industrial workers. He is brought into this Bill, which generally deals with non-industrial workers, only for the purpose of depriving him of a right which he has at present. The section provides that where a public holiday falls on the off-day for such workers, it shall not be regarded as a public holiday for them.
Let us see how this provision will operate in practice. Take the case of railway shop-workers. They work a five-day week commencing, let us say, on Tuesday. Easter Monday, Whit Monday and the first Monday in August will not be public holidays for them if this Bill passes in its present form. Consequently, they will get no payment for Easter Monday, Whit Monday or the first Monday in August, although under our present legislation, passed less than two years ago, they are entitled to payment for these public holidays. The effect of this section will be that in future such workers will not be paid for these public holidays, and will not be entitled to days in lieu of them. I cannot understand what induced the Minister to include this section in the Bill unless he wants to indicate that, if you are going to have industrial workers on the basis of a five-day week, he is not going to give his imprimatur to that, and is going to impose hardship on the five-day week workers which were not imposed under the 1936 Act. If, for instance, trades unions, on the one hand, and employers, on the other, make an agreement by which the working week is spread over five days it has been the practice when a bank holiday fell in the week in which the worker was off—when it fell on the sixth day —for the worker to be paid, or to get a day in lieu of that day. That has been the accepted position up to now. Why should we not allow that position to continue?
The State is not generous in the provision which it makes for holidays. Under the 1936 Act, the worker has only a legal right to six days' holidays, and to six days in lieu of public holidays. That is not very generous provision for workers, considering that other people in the State get holidays in excess of that number. The holidays for workers are low enough at present. They are at the minimum, and we should not have this invasion of the rights which five-day industrial workers have had under the 1936 Act. I do not know whether any representations have been made to the Minister by employers to do this. If so, I think the Minister has been unduly sympathetic in listening to that kind of representation. He surely ought not to deprive industrial workers who work a five-day week of the rights which they have at present and which enable them to get the advantage which accrues to them, due to the particular manner in which their working week is spread over. I hope the Minister will not press this section: that he will recognise that to do so would be to weaken the provisions of the 1936 Act. In my opinion, he should not insert Section 7 in this Bill. I hope that on reconsideration of the matter he will indicate that he does not propose to insist on the insertion of this section. Frankly, the purpose of it is to take away a right which the five-day worker has at present. That, so far as I see, is the only purpose of amending the 1936 Act—to invade the existing rights which these workers enjoy and to worsen their position.
That is a matter on which the Deputy should not be too dogmatic. There is, at least, very grave doubt as to whether, under the 1936 Act, any five-day week worker, or anyone who works less than the normal working week, is entitled to payment in respect of a public holiday which falls on a non-working day.
That is quite possible, but whether, in fact, the law clearly gives them that right to payment is a question of doubt. Now, we are dealing here with a revision of the corresponding sections of the law in the Conditions of Employment Act, 1936, which deal with public holidays and annual leave. These sections are being repealed and re-enacted here with such amendments as experience has shown to be necessary in order to give full effect to the intentions of the 1936 Act. What was the intention of the 1936 Act? Prior to its enactment a very large number of workers in this country suffered a loss of wages by reason of the fact that a public holiday occurred in certain weeks of the year. In a week in which a public holiday occurred, they got less in wages than they got in an ordinary week, and it was felt to be undesirable to allow that position to continue. Therefore, the Act of 1936 provided that when a public holiday occurred, workers, who in consequence of the fact that the day was a holiday did not work, got, in respect of that week, a full week's pay. That is what the Act was intended to provide, and it may be that the Act did in fact provide that even though full advertence was not given to the unusual position of workers who worked less than six days in a week normally.
It is clear that the worker who works a five-day week is not affected by the fact that a public holiday occurs if the public holiday falls upon the sixth day upon which he does not work. He has not lost anything by the fact that it was a public holiday. He has got the amount of wages which he would have got if the public holiday had not occurred at all. Therefore, the five-day week worker was in precisely the same position as the 1936 Act put the six-day week worker. I am dealing now with workers working a full working week. There may be a special case to be made for workers who are temporarily on short time, and I do not want to confuse the issue by reference to their circumstances. The Deputy referred to railway-shopmen—the Inchicore workers. Their position is that they are working less than the normal working week by reason of the scarcity of work. That position occurs periodically in various industries where short time has to be worked for one cause or another. Some case could be made for a special provision in relation to these workers, but where it is the normal practice to work less than six days in the week—say five days or even four days—and where the worker gets for the four or five days' work his full week's wages, then that worker is clearly not entitled to get further payment in respect of public holidays when the public holiday falls on a non-working day. Otherwise, you would be putting him in a better position than that of other workers covered by the Bill. In the case of the six-day week worker, in the week in which a public holiday occurs he gets his six days' pay. The Deputy's interpretation of the 1936 Act seems to be that the five-day week worker in a week in which a public holiday occurs should get his full week's wages plus a day's pay.
I think the Minister is leaving out a very important consideration there, namely, that the six-day week worker gets his full week's pay for the five days worked.
The Minister said his full week's pay, but he has only worked five days that week.
I will admit that. The intention was to ensure that the public holiday should not mean a loss of earnings to the workers. We are providing for that, even though we are legislating to ensure that the five-day week worker does not get additional payment in respect of a public holiday falling on a non-working day. I submit for the consideration of Labour Deputies certain considerations which might be kept in mind in this regard. I do not know to what extent they regard the institution of a five-day week desirable. If they do regard it as desirable, it is obviously not wise to make it unprofitable for employers to resort to a five-day week. Clearly, when we instituted a 44-hour week in particular industries and prescribed by order in 1936, that the maximum number of hours would be 44, it was open to an employer to work 44 hours, either by means of a five-day week, or a six-day week. He could have a shorter working day for six days, or a longer working day for five days. There are many who think that the five-day is the better one. If we adopt. Deputy Norton's suggestion in the amendment, we are putting an employer in the position that if he decides to work five days instead of six days, he is going to have to pay an extra day's pay upon every occasion that a public holiday falls upon a non-working day.
But no more than at present.
I do not agree. It has to be recognised in practice that the situation does not often arise. In the ordinary way workers are employed six days in the week, but the sixth day is Saturday, and it is rarely that a public holiday falls on a Saturday. There are only one or two of the public holidays movable, and they only fall on Saturday once in seven years. The problem is not as serious as was suggested. Many of the public holidays are fixed for Mondays, and would not affect the position of a great majority of the workers. Some holidays, like St. Patrick's Day, fall on different days of the week, and once in seven years would fall on Saturday. Therefore, workers working from Monday to Friday would be only affected once in seven years. There arises for consideration the question whether one class of workers working ordinarily five days are in a better position than those working six days. I am prepared to admit that there are special considerations which apply in the case of workers temporarily on short time. That is a special problem. In the case of workers getting a full week's wages, I do not think they can complain if they get a full week's wages in the case of any day a public holiday falls on a non-working day. These are considerations that arise here. If the possibility arose, and was fully adverted to when the 1936 Act was framed, I think no one would have questioned the equity of making special provision for five-day workers. The only point Deputy Norton questioned was that, in so far as the employers have interpreted it as putting them under an obligation to pay for public holidays, they have paid, and that we are taking from these workers something which they got. When we come to revise the Act, and revert to the fact that there is an obligation to pay these workers, which might easily be removed by a decision of the courts, it is better to set out what we designed to do. We designed to ensure this, and no more, that workers would not lose money any week in which a public holiday occurs by reason of the fact that they had not worked.
Who is asking to have the Act amended?
I am not suggesting that anyone asked to have it amended. It was the duty of my Department to watch closely the working of this Act, and to note flaws which experience shows exist, and to record them for action when the appropriate time came. This is the appropriate time for dealing with clauses in the Act concerning public holidays and annual leave. We are now re-enacting these clauses with certain amendments, and clearing up difficulties which have been discovered. We may have to come here with another Bill to remedy the other parts of that measure. Deputies will note that most of the defects remedied are defects which operated to the detriment of the workers concerned. In this particular case it is of no advantage to the workers to give them the right to something it was not intended they should get, as in that way it might be an illusion. I submit that Deputies should approach this matter, not in the way that Deputy Norton has approached it, that here is something workers got by accident, and that we should not take it. Deputies should approach it on the grounds, whether, having regard to the general intentions of the measure, the limited benefit conferred on a section of workers should be continued and they should get better treatment than others.
In 1936 the Minister laid down the specific grounds on which holidays would be given, 1,800 hours being the basis for a 48-hour week. The Minister cannot suggest that we should depart from that basis now. He agreed that certain circumstances might arise but the principle was to stand. Since then workers have been enjoying certain holidays under the Act, and no complaint, as far as I know, has been made by employers. For the first time I heard to-day that it is doubtful if in law these workers are entitled to payment in certain circumstances. They have been paid and that was not challenged. It was the feeling of the House when the Act was passed that six days' annual leave should be given as holidays, plus six days' public holidays. It was felt that that was a reasonable amount of holidays for industrial workers who had to put in the qualifying period of 1,800 hours. Is not this an attempt by the Minister to worsen their position by lessening the number of holidays? Again, for men who are working five days a week it would be difficult to find out whether they work normally for five days. Deputy Norton spoke of one section that works abnormally, the railway-men. They are working five days. They are going to lose the three days' holidays of which Deputy Norton spoke —Easter Monday, Whit Monday and the first Monday in August. These three Mondays are taken.
Because they are not working on Mondays. It is not confined to the Inchicore workers. It is applicable to workers in Limerick, Cork and other places.
I am prepared to admit that there is a special case for workers working less than the full period.
There are three holidays in that that I should mention, Christmas Day, St. Stephen's Day and St. Patrick's Day. It is not once in seven years the question will arise. There is a definite loss of three days' pay.
I submit that the Deputy is not treating the Dáil fairly when discussing the problem with regard to a special class of workers. If the railway shop workers were working full-time they would not be affected by the change. They are part of the problem merely because they are working temporarily less than the normal working week. I agree that they are a special case, if possible, for some special provision regarding public holidays. I want Deputies to deal with the class of workers—and they are only a limited class—who might ordinarily be working only the normal five-day week.
I suggest that their conditions of service are not five days, but that they have been working for a long period only five days. They are entitled to work six days a week and are glad to work it if they can get it. Their conditions of service entitle them to six days but, because of continued depression, they have been working five days over a number of years, For a long time the section I belong to have been working only four days— from 1925 on—and it was argued in the House here in connection with that that those people ought not to be penalised further, that they were suffering enough because of industrial depression. We are coming back now under this Act, called a Holidays Act, the effect of which is to take holidays from somebody who has got them already. I cannot see the logic of the Minister's argument in connection with it. He has some particular section of workers in his mind whom I cannot determine, but in regard to the normal workers, I know that the majority of people working five days in the country are working abnormally, apart from the railway. Deputy Dockrell has given another instance of the worker who works five days for the convenience of himself and his employer, going a long distance, and they spread their work over five rather than six days, but that does not mean that he is not a six-day worker. We might have more light on the subject if the Minister would indicate clearly who are the particular workers he has in mind.
The Deputy knows there are many factories, for instance, in Dublin, who ordinarily close for the whole day on Saturday. That practice has been developing rather than retarding and may become the normal practice.
If we are going to get any further amelioration in regard to shortening of hours in order to make provisions for the unemployed we will have to have another Act. We will have to have another Act to make the five-day week some people are working at the present time the normal working week. We should get a shorter working week and hope for it. The Minister is running in advance of himself and we will have to keep on chopping holidays, although we decided in the 1936 Act that 12 days' annual leave—with the six public holidays— was reasonable recreation period for industrial workers. I suggest that there has been no case made by employers or anybody else to warrant this early intervention to the derogation and detriment of the workers who benefited under that Act. There has been no demand for it, and the Minister ought to be very slow in taking with the right hand what he has given with the left such a short time ago.
The Minister told us on this section, when we asked who were the authors of the amendment, that, although the employers, who have been paying, have not complained, and although the workers, who have been getting the benefit of the Act, have not complained, his Department felt bound to step in and suggest an amendment of the Act in such a way as to deprive workers of rights which they have at present. That is an amazing attitude for any Department of Industry and Commerce to take up. The employers did not complain; the workers did not complain; both are satisfied with the provisions of the 1936 Act. I could understand if it was the Department of Finance, but the Department of Industry and Commerce, of all Departments, which ought to be concerned with promoting high standards of social legislation, comes along and tells the Minister, "This is too generous. You are doing something here you should not do," and now we get an amending Bill of this kind, the purpose of which is to deprive workers of rights they have at present. If there has been no complaint from the employer and no complaint from the worker I cannot understand by what process of reasoning the Department of Industry and Commerce, which ought to be concerned with raising standards, comes along to suggest a worsening of the position of the five-day worker under this Bill. That is a role in which I did not expect to see the Department of Industry and Commerce, which is under the Minister's control. Apparently, one's expectations can often be doomed to disappointment in that regard. Certainly it does not at all square with the Minister's speeches at Geneva on this question or on social legislation generally.
The Minister told us that one of the reasons for not wanting to give the five-day worker payment for the bank holiday for his off-day is that that would possibly retard employment for the five-day week. I do not believe that is likely to happen at all. An employer considering the question of changing over from a six-day week to a five-day week will bear in mind the fact that he is liable now to pay his worker a day's pay for a bank holiday which falls in the six working days, and if he changes over to the five-day week, he will realise he is still carrying that responsibility. That type of argument has never before been used as a reason for not changing over to the five-day week. Every enlightened employer in this country, and in Britain, America, and New Zealand, who has felt bound to air his views on the question of the five-day week, has acknowledged that it has been an instantaneous success, and that enormous benefits have accrued in the improved standard of health and improved output in the places where it was resorted to. Ministers of State, notably in New Zealand and in the United States, have given public utterance to their approbation of the five-day working week in the benefits which it makes available to the workers, and the consequential beneficial reactions on their family, on industry, and on the State generally. I think that the movement towards the five-day week is not likely to be impeded by the puny type of argument that, if you change over to five days, in some week you will have to pay a worker for a bank holiday on which he does not work. I think the sheer momentum of economic events will overcome tiny little difficulties of that kind, on the issue of whether it is desirable economically and socially to change from a six-day to a five-day working week.
But, apart from these major considerations which arise when approaching the problem of whether the six-day or five-day week is the better economically and socially, let us get down to an examination of the intrinsic merits of the Bill which the Minister is asking the House to adopt. Under the 1936 Act, a worker who worked for six days, let us say, who was being paid at the rate of £3 a week, received £3 even though he only worked five days. Normally he was liable to work six days for £3, but if a bank holiday fell in that week on a Saturday, he got £3 that week for working five days. Therefore, he got a definite gain under the Act of one day's pay for a day he did not work. For the six-day worker there was a gain of one day's pay. Now let us state that, so that we can see what is the gain for the six-day worker, and then change over to the five-day worker. The five-day working week has often been accomplished by spreading over five days work which would normally be spread over six days. It is just a matter of adjustment of hours and adjustment of the factory technique. In many cases it does not mean that the worker works less than he would if he were working six days, and in many cases it does not matter to the worker from the point of view of his output whether he is working five or six days per week; his relative output is the same. When you are thinking of the matter, therefore, you must think more of output and organisation than you do merely of days in the calendar. Even if we were to ignore that consideration, let us state the case of the five-day worker at present. This worker gets, let us say, £3 for five days' work, and, on the sixth day, if it is a bank holiday, he gets paid as well for that bank holiday. But what does the five-day worker get in that case? He merely gains one day in a particular week. If he is paid at 10/- per day, the six-day worker has a gain of 10/-, inasmuch as he gets £3 for five days' work. If the five-day worker has, let us say, £3 for the five days' work, in that particular case the worker gets a gain of one day's pay for the bank holiday on which he did not work. But, relatively, the position of the six-day worker and the five-day worker is essentially the same. What is going to happen under this amendment is that the Minister is going to definitely discriminate against the five-day worker.
The six-day worker in the week in which the bank holiday falls will get, let us say, wages of £3 for five days' work and will thus gain payment for one day, but the five-day worker will get the same week's wages for the five-day week and he would be giving the same normal output and there is going to be no gain in his case; he will be worse off than the six-day worker. I think it might pay workers under this Bill to get back to the six-day week in order to avoid the penalty which the Minister is imposing on them. I think the Minister is definitely putting the five-day worker in an unfair position compared with the six-day worker. I do not think it is quite correct to say that this can only happen in certain years. Deputy Keyes has quoted the notorious case of railway-shopmen who have been on a five-day week for years. If the statement made recently by the railway company before the Railway Wages Board is correct, it looks as if the shopmen will spend the rest of their lives on a five-day week.
That is a very serious problem for them. They are going to be deprived very definitely of any advantage. They are going to be the class hardest hit. They are not in receipt of a full week's wages for a five-day week, and on top of that they will be deprived under this Bill of rights which have been given them under the 1936 Act. Deputy Keyes tells us that they will suffer heavily under this Bill. The Minister may say that it is impossible for an employer to substitute a Catholic holiday for a public holiday unless in a certain cycle of years, but I suggest that there are loopholes opened up under this measure for employers to substitute Catholic holidays for public holidays so as to avoid their responsibilities.
They cannot substitute a non-working day for a working day.
Where it is possible to substitute the Catholic holiday for the public holiday the worker is likely to lose.
That is provided for in the Bill.
If the Minister examines the Bill further he will see the possibilities to which I have referred. There is no demand by anybody, excepting the Department, for this amending legislation. I think the Minister ought to leave well enough alone. He is setting out to introduce amending legislation that nobody wants. If there is any doubt in regard to existing legislation, let the courts decide. Nobody has expressed any doubts except the Department and nobody has suggested amending legislation except the Department. There is absolutely no reason for asking the House to amend the 1936 Act in a way that affects provisions of that Act very seriously. This will have a grave effect on a substantial section of railwaymen.
The five-day workers I have in mind work 45 hours in the week. We have another group working 47 hours in a six-day week. If Christmas Day, Saint Stephen's Day, or St. Patrick's Day falls on a Saturday, the five-day workers will still work 45 hours and the other men will work only 39 hours. In that position the five-day workers will be victimised.
We set out to ensure that the worker would not lose wages by reason of the fact that a public holiday on which he was not allowed to work occurred. The five-day worker does not lose any wages. The six-day worker working 47 hours would lose wages if we did not legislate to secure for him payment for the public holiday. We are out to secure a normal week's wages. The six-day worker will be in a position, in a week when a public holiday occurs, to get a full week's wages. Deputy Norton wants to put the five-day worker in a position in which he would get a week's wages plus a day's pay, which is more than the six-day worker would get.
The position is that there would be one set of men working 45 hours a week and that would mean six hours longer than the other section, who would normally work 47 but, because of the holiday, would work only 39.
That is an argument and I am not prepared to deny the force of the argument. I submit that Deputies are losing sight of what we set out to do by placing undue importance on certain aspects. We set out to protect people against loss. We may have given to certain workers something more than we intended. Deputy Norton is proposing to take it back from them, although the employers have not complained about giving it to them.
There is a very serious doubt in mind as to whether we would proceed with this Bill as it stands at all or not. That doubt does not, I must say, arise as to the equity of the proposal in relation to the class of workers whom I have in mind, those who ordinarily work four or five days in the week and get a full week's wages for doing so. The doubt is in relation to the class of workers Deputy Keyes has referred to, the workers already hit by temporary circumstances in industry and who are not getting the full week's work, men working five days and getting only five-sixths of a week's pay in consequence. I think there will be a very substantial practical difficulty in securing for such workers payment in respect of a public holiday that falls on a non-working day and, at the same time, not securing that benefit for the other more normal classes of workers I have referred to. Therefore, it may be that we will have to drop this provision because of the practical difficulty which I have referred to, which prevents the finding of an equitable solution. That being so, I would rather err in favour of securing the benefit for the workers on a five-day week than in the other direction.
This situation might be met in another way. It might be met by prescribing a longer number of hours to be worked in the qualifying period. Deputies will have noticed that in this Bill we are moving in the other direction. We are making the number of hours less because we have found individual employers who could take advantage of the existing law to avoid the payment of holiday pay to their workers. The only way to check that evasion was by moving in the other direction. The consequence is that we are bringing within the class of workers entitled to payment in respect of public holidays workers who are doing substantially less than five or four days' work, even workers doing less than three days. That is rather a serious thing to contemplate, because as the normal working week goes down, the burden of providing holiday pay is increased upon the employer. There is this to be said in respect of the class of workers working a short week by reason of depression in industry, or some similar cause, that the employers of these workers will find it most difficult to make the extra payments. If trade is good, and workers are employed fulltime, the burden of the extra payment for holidays is lighter than in the case of industries which are depressed and in which full output cannot be made.
It is very hard to balance the equities in the position. My inclination at the moment is to resist the amendment with a view to leaving it possible to attempt to divide into two classes those workers who work less than a six-day week, the two classes being those who are losing nothing by working five days and those who are working five days by reason of industrial depression or some similar cause which has prevented them working their normal working week. I do not want to make this a contentious matter because it is something concerning which I have myself very grave doubts. I am not even certain that I fully appreciate the effect that the section, as it stands, will have. I have given the matter very careful consideration, and I have some apprehension that the section may have, in practice, a somewhat different effect from what was intended. Therefore it was my intention to have it reconsidered in any event, because it was difficult to follow and may give rise to unusual interpretations if cases were taken to the court for decision. I, therefore, suggest that the Deputy should agree to leave this debate stand over. He can keep his amendment on the Order Paper and get a decision on his amendment if he chooses. I may have an amendment which would in part or in whole meet it.
Very well, I agree to that—to allow the amendment stand over and also the other inter-dependent amendments.
There are amendments in my name which will be moved in any event. The term "five-day worker" must go out because there are such things as four-day workers. The same provision applies to them.
I take it that Deputy Norton withdraws his amendment?
Yes, and the other amendments in my name up to 21.
I move the following amendments:—
In sub-section (2), page 7, line 2, to delete the words "and a five-day worker".
In sub-section (3), page 7, line 15, to delete the words "and a five-day worker".
In sub-section (3), page 7, line 18, to delete the words "appointed day" and substitute the words "appointed holiday".
Amendments agreed to.
Section 7, as amended, agreed to.
SECTION 8.
(3) Whenever, in the case of a person who is a non-domestic worker and a five-day worker but is not an industrial worker, a day, which is by virtue of the preceding provisions of this section, a public holiday falls on a non-working day, such day shall be deemed for the purposes of this Act (including the subsequent provisions of this section) not to be a public holiday in respect of such person.
(5) Each day (unless it falls on a Sunday or, in the case of a five-day worker, on a non-working day) mentioned in this sub-section shall be a Church holiday for the purposes of the next preceding sub-section, that is to say:—
(a) the 1st day of January,
(b) the 6th day of January,
(c) Ascension Thursday,
(d) the Feast of Corpus Christi,
(e) the 29th day of June,
(f) the 15th day of August,
(g) the 8th day of December.
Amendment No. 21 not moved.
I move amendment No. 22:—
In sub-section (3), page 7, line 46, to delete the words "and a five-day worker".
Amendment agreed to.
I move amendment No. 23:—
In sub-section (5), page 8, line 17, to delete the words "five-day worker" and substitute the words "worker who does not under his contract of service normally work for seven days in each week."
Amendment agreed to.
On Section 8, I want to draw attention to the fact that in line 7, page 8, there is a reference to paragraph (a). That should be a reference to paragraph (b). That is a printer's error. I move that it be amended to paragraph (b).
Agreed to.
Section 8, as amended, agreed to.
SECTION 9.
(1) Where—
(a) a non-domestic worker is in the employment of a person on a public holiday, and
(b) such worker has worked for such person for not less than one hundred and fifty hours at any time during the period of five weeks immediately preceding such public holiday,
the following provisions shall have effect, that is to say:—
(i) if such worker has been allowed (whether in compliance with sub-section (1) of Section 49 of the Act of 1936 or otherwise) by such person a whole holiday on such public holiday, such person shall pay to such worker in respect of such public holiday one day's pay;
(ii) if such worker has worked on such public holiday for such person and such worker has not received pay in respect of work so done on such public holiday at a rate not less than the amount payable under his contract of service in respect of a normal full working day increased by twenty-five per cent., then—
(I) if such worker remains in the employment of such person for a period of one month after such public holiday, such person shall allow to such worker a whole holiday on a working day within such period and shall pay to such worker in respect of such whole holiday one day's pay,
(II) if either such worker remains in such employment for such period and the provisions of the next preceding clause are not complied with in respect of such worker or, such worker ceases to be in such employment before the expiration of such period and has not been allowed a whole holiday on some working day between such public holiday and such cesser and been paid in respect of such whole holiday one day's pay, such person shall, upon the expiration of such period or the cesser of such employment (whichever first happens), pay to such worker, in addition to any wages then due him, a sum equivalent to one day's pay.
In this sub-section the expression "working day" in relation to a worker means a day which is a weekday and is not a public holiday nor a day within which any part of a period of twenty-four consecutive hours of rest allowed to such worker under any other enactment falls, nor, in case such worker is a five-day worker, a non-working day.
(2) Where—
(a) a non-domestic worker in the employment of a person has worked for such person for not less than one hundred and fifty hours at any time during the period of five weeks immediately preceding a public holiday, and
(b) the services of such worker with such person are terminated by such person before such public holiday,
such person shall pay to such worker, in addition to any wages due upon such termination, one day's pay.
(3) Where—
(a) a non-domestic worker in the employment of a person has worked for such person for not less than one hundred and fifty hours at any time during the period of five weeks immediately preceding an appointed holiday;
(b) a day (in this sub-section referred to as the substituted day) is substituted, in case such worker is an industrial worker, under Section 7 of the Act of 1936, or, in any other case, under the next preceding section of this Act, for such appointed holiday, and
(c) the substituted day falls after such appointed holiday, and
(d) the services of such worker with such person are terminated by such person before the substituted day,
such person shall pay to such worker, in addition to any wages due upon such termination, one day's pay.
In this sub-section the expression "appointed holiday" means—
(a) in relation to a person who is an industrial worker, a day which is a public holiday by virtue of sub-section (1) or sub-section (2) of Section 7 of the Act of 1936 and is also, if such person is a five-day worker, a day which is not a non-working day;
(b) in relation to a person who is not an industrial worker, a day which is a public holiday by virtue of sub-section (1) or sub-section (2) of the next preceding section of this Act and is also, if such person is a five-day worker, a day which is not a non-working day.
(4) The Minister may, whenever and so often as he so thinks proper, make regulations varying in respect of all or any particular class or classes (defined in such manner and by reference to such things as the Minister thinks proper) of non-domestic workers the period of 150 hours mentioned in sub-sections (1), (2) and (3) of this section by substituting for such period either such other number of hours or such number of days as the Minister thinks proper, and whenever any such regulations are in force the said sub-sections shall have effect, in respect of the non-domestic workers or the class or classes of non-domestic workers to which such regulations apply, as if the said period was varied in the manner stated in such regulations.
(5) In the application of the four next preceding sub-sections to workers who are under the age of 18 years, the period of 120 hours shall be substituted for the period of 150 hours, and the said four next preceding sub-sections shall have effect in relation to such workers accordingly.
(6) Where a non-domestic worker is during any employment year of such worker granted by his employer a number of consecutive whole holidays in excess (which excess is in this section referred to as extra holidays) of seven and is paid by his employer in respect of each day of extra holidays a day's pay, the following provisions shall have effect, that is to say:—
(a) if six or more extra whole holidays are granted, such worker shall be deemed for the purposes of this section to have been allowed by such employer a whole holiday on each public holiday falling within such employment year;
(b) if less than six extra holidays are granted, such employer may, at the time at which he gives such worker notice of his intention to grant the said consecutive whole holidays, also give to such worker notice in writing stating—
(i) if five extra holidays are granted, that such extra holidays are in lieu of a whole holiday on each of such five public holidays (falling within such employment period) as such employer may select and specify in such notice,
(ii) if four extra holidays are granted, that such extra holidays are in lieu of a whole holiday on each of such four holidays (falling within such employment period) as such employer may select and specify in such notice,
(iii) if three extra holidays are granted, that such extra holidays are in lieu of a whole holiday on each of such three public holidays (falling within such employment period) as such employer may select and specify in such notice,
(iv) if two extra holidays are granted, that such extra holidays are in lieu of a whole holiday on each of such two public holidays (falling within such employment period) as such employer may select and specify in such notice,
(v) if one extra holiday is granted, that such extra holiday is in lieu of a whole holiday on such public holiday (falling within such employment period) as such employer may select and specify in such notice,
and in any such case, such worker shall be deemed for the purposes of this section to have been allowed a whole holiday on each such public holiday or on the public holiday specified in such notice.
(7) If any person who is required by clause (1) of paragraph (ii) of sub-section (1) of this section to allow a non-domestic worker a whole holiday on some day within a month after a public holiday fails, neglects or refuses to comply with such requirement, the following provisions shall have effect, that is to say:—
(a) such person shall be guilty of an offence under this section, and shall be liable on summary conviction thereof to the penalties mentioned in the Schedule to this Act, and
(b) proceedings for such offence shall not be instituted until the expiration of the employment year of such worker within which such public holiday falls or the cesser of his employment (whichever first happens).
There is an amendment, amendment No. 24, in my name, It reads:—
Before Section 9 to insert a new section as follows:—
Notwithstanding anything in this Act, except where a worker is working short time, whenever an employer pays a worker a normal week's wage (exclusive of pay for overtime and deductions for short time) for any week and the worker does no work on any public holiday which falls within such week the employer shall be deemed to have allowed the worker a whole holiday on such public holiday and to have paid the worker for such public holiday.
I take it that this amendment is really on the lines of what we have been debating.
Yes, it is pretty much the same point.
Does the Minister want me to let it stand over?
Yes. But I thought the Deputy might have in mind another point about the necessity of defining what constitutes a day's pay. I do not think we should do that. If the Deputy were dealing with the point of making special provision for five-day workers I would prefer it would stand over. But if he is dealing with the question of what constitutes a day's pay for a worker, it would be as well we should deal with it now. It is impossible to give a satisfactory definition of what constitutes a day's pay. We define a day's pay as what a worker would have got if he worked upon that day.
I do not want to get into a discussion if we are not going to go through with it. I have an amendment down about a six-day worker—what a day's pay is with reference to a six-day worker. I think that is amendment No. 40 under Section 10.
The Deputy might consider whether his point has not been met by the official amendments to Section 9.
Amendment No. 24 not moved.
I move amendment No. 25:—
In sub-section (1), to delete from and including line 42, in page 8, to the end of the sub-section and substitute the following:—
"public holiday, and
(c) such worker has been allowed (whether in compliance with sub-section (1) of Section 49 of the Act of 1936 or otherwise) by such person a whole holiday on such public holiday,
such person shall pay to such worker in respect of such public holiday one day's pay."
Section 9 (1) proved to be a very cumbersome sub-section. Sub-section (1) is very difficult to construe. It has been divided into two. This is the first of the new amendments. It makes one sub-section out of Section 9 (1), paragraphs (a) and (b) and (i). It should be noted that the view has been expressed that the worker is now allowed a holiday on a day he normally does not work. That view was expressed here. It follows from that, that the person who does not normally work a day on which a public holiday falls will not be paid if he is off——
What is the relationship between that and the five-day worker?
The position of the five-day worker should not be affected by this at all.
It could be affected by the language the Minister used. If a man does not work on a bank holiday and gets paid at the present time can he get paid under the amendment on the language used by the Minister in supporting it?
If the worker does not work on the day, he is not allowed a holiday.
He is at present. With the five-day workers that would not hold with the purpose of the previous discussion. I want to know what the effect of this will be.
The opinion accepted here is that a person who does not ordinarily work on a day on which a public holiday falls should not be paid if he is off on that day.
What does "pay" mean in that respect? Does it mean that he can get a day in lieu?
In respect of a public holiday, one of three things can happen: the worker can get a public holiday and be paid for it; he can get a day in lieu; or he can be obliged to work on a public holiday for extra pay. I think that covers all the possibilities of the position.
I am still doubtful as to the effect of this amendment, as it is, on the Bill.
It is not an amendment; it does not alter the Bill.
Am I right in saying that it is a rearrangement?
It is a rearrangement of the section. It is not an alteration and it does not alter the meaning in any way.
Is the effect of it to put us on the same footing in respect of this as in the case of the Conditions of Employment Act of 1936?
Exactly. That section, however, was cumbersome and very difficult to interpret, and purely for the purpose of clarity it has been rearranged, divided into two parts, and made clearer by that division. At least, I have been assured that it has been made clearer.
Is that the only meaning of the amendment—a clarification of the position?
The only purpose of the amendment is to rearrange the section without altering its meaning.
Because it looks suspiciously simple.
I would not say it is either suspicious or simple.
Acting on the assumption that sub-section (2) of Section 7, as amended, carries on into the Act, how does that compare now with sub-section (1) of Section 9 as amended? Sub-section (2) says that if a public holiday falls on a non-working day, the day is deemed not to be a public holiday. I take it that the object of that is not that it shall not count as a public holiday, because the Conditions of Employment Act says they must have a holiday on certain days, but that, for the purpose of pay, it shall not count as a holiday. Now this sub-section, as amended, to my mind, reverses that and says that they have to be paid.
I am told that the effect is to ensure that on a non-working day, a person cannot be allowed a holiday.
Surely that is directly in conflict with Section 7? If what the Minister says is correct, all the argument we have had from Deputy Norton and Deputy Keyes does not arise.
There arises the question which we have been discussing on Section 7 as to whether a five-day week worker should be paid for a public holiday at all, if it falls on a non-working day.
What does that now mean? I thought we were clear five minutes ago, but now we are as muddled as ever. If the Minister will explain it, I will listen attentively.
The Deputy can examine it at his leisure, but I can assure him that it does not alter the purpose of Section 9.
Amendment agreed to.
I move amendment No. 26:—
Before sub-section (2) to insert a new sub-section as follows:—
(2) Where—
(a) a non-domestic worker is in the employment of a person on a public holiday, and
(b) such worker has worked for such person for not less than 150 hours at any time during the period of five weeks immediately preceding such public holiday, and
(c) such worker has worked on such holiday for such person, and
(d) such worker has not received pay in respect of work done on such public holiday at a rate not less than the amount payable under his contract of service in respect of a normal full working day increased by 25 per cent,
the following provisions shall have effect, that is to say:—
(e) if such worker remains in the employment of such person for a period of one month after such public holiday, then—
(i) such person shall allow to such worker a whole holiday on a working day within such period and shall, if he so allows such holiday, pay to such worker in respect thereof one day's pay,
(ii) if such person fails so to allow such worker such whole holiday, such person shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to the penalties mentioned in the Schedule to this Act, and shall (whether proceedings for such offence have or have not been taken) pay to such worker one day's pay in respect of such public holiday, but proceedings for such offence or to recover such day's pay shall not be instituted until the expiration of the employment year of such worker within which such public holiday falls or the cesser of his employment (whichever first happens);
(f) if such worker ceases to be in the employment of such person before the expiration of such period and has not been allowed a whole holiday on some working day between such public holiday and such cesser and been paid one day's pay in respect of such whole holiday, such person shall upon such cesser pay to such worker, in addition to any wages then due him, a sum equivalent to one day's pay.
In this sub-section the expression "working day" in relation to a worker means a day which is a week day and is not a public holiday nor a day within which any part of a period of 24 consecutive hours of rest allowed to such worker under any other enactment falls, nor a non-working day.
This is the other half of the amendment. It deals with the case of a worker who works on a public holiday and re-enacts, in different words, the provisions of Section 9 in relation to such workers. It sets out that where a worker works on a public holiday and does not get the 25 per cent. increase in wages, but has worked 150 hours in the preceding five weeks, he shall get a day in lieu within the month. It deals also with the case of a worker whose employment ceases within the month of a public holiday and provides that he shall get a day's pay. I mentioned the three possibilities—payment for a public holiday, substitution of a day in lieu, or extra day because he has to work— and this section deals with two of them.
Sub-section (e) of this amendment provides that if an employer fails to allow a day in lieu of a public holiday to a non-domestic worker within a month after such public holiday, proceedings may be instituted against the employer. The relevant portion of the sub-section says:—
but proceedings for such offence or to recover such day's pay shall not be instituted until the expiration of the employment year of such worker within which such public holiday falls or the cesser of his employment.
Suppose a non-domestic worker works on a public holiday in January. A month passes and the employer offers no day in lieu and shows no disposition to pay the worker for the day. The Departmental inspectors discover, in March, that the employer has transgressed the Act. He may admit in cross-examination that he has no intention of taking any notice of the Act, and say that he thinks it unfair and that there was no mandate to pass the Act. Is the position to be that until the end of the year no proceedings will be instituted against the employer?
You must have it that way. Remember that it is open to that employer either to give that public holiday or to substitute instead an additional day's annual leave at any time during the employment year. Clearly you cannot say whether an employer intended to defy the Act or to observe it until the employment year has concluded. If the worker leaves that employment in the interval cesser pay must be given.
It is a very clumsy way of dealing with the offence.
I agree, but it is a necessary consequence of the provision which enables an additional day's annual leave to be substituted for a public holiday.
Suppose there is a public holiday in January and a non-domestic worker works on that holiday. He gets no day in lieu within the month and no payment for the day's work. Let us assume then that that person goes on holidays in July and no additional day's pay is added. If the employer chooses to give such holidays as have accrued in the middle of the employment year and not at the end of it, or if there is an intimation from him that he will not pay and does not intend to pay, can proceedings then be instituted or must you wait for either of two things, a cesser of employment or the end of the employment year?
I think you must wait until the law is broken, until the employer has put himself in the position that he could not carry out the law, or any of the alternatives which the law provides. Clearly you cannot prosecute until he has got into that position. If, however, there is an alternative open you cannot prosecute successfully.
It is a very clumsy way of dealing with it.
You are going to have prosecutions initiated 11 months after the offence.
In the other case, when you proceed to prosecute, he will say. "The law allows me an alternative and I intend to avail of it." In such a case he could never be convicted.
I think he could, by tightening things up. You will be prosecuting him 11 months after the offence was committed. He may say that he is going to put things right, but if he does not put things right, you may be prosecuting him in respect of an 11 months' old offence.
Amendment agreed to.
I move amendment No. 27:—
In sub-section (3) (a), page 9, line 47, to delete the following "holiday;" and substitute the following "holiday, and".
This is a drafting amendment.
Amendment No. 27 agreed to.
Amendment No. 28 not moved.
I move amendment No. 29:—
In sub-section (3) (a), page 10, lines 6 and 7, to delete the words "is also, if such person is a five-day worker, a day which".
This also is a drafting amendment.
Amendment No. 29 agreed to.
Amendment No. 30 not moved.
I move amendment No. 31:—
In sub-section (3) (b), page 10, lines 11 and 12, to delete the words "is also, if such person is a five-day worker, a day which".
Amendment No. 31 agreed to.
I move amendment No. 32:—
In sub-section (4), page 10, line 18, to delete "and (3)" and substitute "(3) and (4)".
This is a consequential amendment.
Amendment No. 32 agreed to.
I move amendment No. 33:—
In sub-section (5), page 10, line 25, to delete the word "four" and substitute the word "five".
This also is consequential.
Amendment No. 33 agreed to.
I suggest that a further change is required there, in line 28, and that the word "five" should be substituted for "four" there also.
Yes. I shall have that attended to.
I move amendment No. 34:—
In sub-section (6), page 10, to delete lines 32 to 46 inclusive, and substitute the following:—
year of such worker allowed by his employer annual leave under the next following section and is, in addition to, and immediately following, such annual leave, allowed by such employer a number of whole holidays (in this section referred to as extra holidays) which if more than one are consecutive or would but for the intervention of non-working days (if any) be consecutive, the following provisions shall have effect that is to say:—
(a) if six or more extra holidays are allowed and such worker is paid by such employer a day's pay in respect of six of such extra holidays, neither sub-section (2) nor sub-section (3) nor sub-section (4) of this section shall apply as regards such worker in respect of any public holiday falling within such employment year;
(b) if less than six extra holidays are allowed and such worker is paid by such employer a day's pay in respect of each day of such extra holidays, such employer may, at the time at which he gives such worker notice of his intention to allow such annual leave, also give to such worker notice in writing stating—
This is a redrafting of sub-section (6). It does not alter the original position except verbally, subject to making it clear that a day which has been tacked on to annual leave in lieu of a public holiday cannot be given on a non-working day. There is a verbal change I want to make in the second line of paragraph (a). It is just a verbal change, and is to insert the words "each of" before the word "six".
In connection with this amendment the expression used is "a non-domestic worker", which includes an industrial worker. Am I to understand, therefore, that it is open to any firm to give all their employees a fortnight's holidays in the year and remain open on public holidays?
No. Certain classes of industrial workers are prohibited from being employed on public holidays under the 1936 Act, and that provision remains.
This Bill does not override that prohibition?
No. This Bill does not override the prohibition.
The suggested verbal amendment is that the words "each of" shall be inserted in the second line of paragraph (a) before the word "six".
Amendment No. 34, as so amended, agreed to.
I move amendments Nos. 35, 36 and 37, which are consequential:
In sub-section (6), to delete the word "granted" where it occurs in page 10, in lines 47, 52, and 57, and in page 11, in lines 1 and 6, and substitute the word "allowed".
In sub-section (6), to delete the word "period" where it occurs in page 10, in lines 50, 55, and 60, and in page 11, in lines 4 and 8, and substitute the word "year".
In sub-section (6), page 11, to delete lines 11 to 14 inclusive, and substitute the following:—
"and in any such case neither sub-section (2) nor sub-section (3) nor sub-section (4) of this section shall apply as regards such worker in respect of any public holiday specified in such notice."
Amendments Nos. 35, 36 and 37 agreed to.
I move amendment No. 38:—
To delete sub-section (7).
Amendment No. 38 agreed to.
Section 9, as amended, agreed to.
SECTION 10.
(1) Every person who employes a non-domestic worker shall, in every employment year of such non-domestic worker during which he has been continuously in the employment of such person and has worked in such employment for not less than eighteen hundred hours, allow at such time as such person thinks fit to such worker seven consecutive whole holidays (in this Act referred to as annual leave).
(2) Where—
(a) a non-domestic worker employed by a person ceases, at any time other than the end of an employment year of such worker, to be in the employment of such person, and
(b) such worker has been in the employment of such person during not less than one month in such employment year and has worked not less than one hundred and fifty hours in such month, and
(c) such person has not allowed such worker before such cesser annual leave in respect of the portion of such employment year during which he was so employed, such person shall pay to such worker at each cesser—
(i) one day's pay in respect of the first month in the said portion of such employment year during which he has worked for not less than 150 hours, and
(ii) one day's pay in respect of each period (including the said first month) of two months in the said portion of such employment year during which he has worked for not less than 300 hours.
(3) The Minister may, whenever and so often as he so thinks proper, make regulations varying in respect of all or any particular class or classes (defined in such manner and by reference to such things as the Minister thinks proper) of non-domestic workers all or any of the periods of 1,800 hours, 300 hours, or 150 hours mentioned in sub-sections (1) and (2) of this section by substituting for such period or periods either such other number of hours or such number of days as the Minister thinks proper, and whenever any such regulations are in force the said sub-sections shall have effect, in respect of the non-domestic workers or the class or classes of non-domestic workers to which such regulations apply, as if the said period or such of them as are affected by such regulations were varied in the manner stated in such regulations.
(4) In the application of this section to workers who are under the age of 18 years—
(a) the period of 1,500 hours shall be substituted in sub-sections (1) and (3) for 1,800 hours, and
(b) the several periods of 250 hours and 120 hours shall respectively be substituted in sub-sections (2) and (3) for the several periods of 300 hours and 150 hours and this section shall have effect in relation to such workers accordingly.
(5) In the case of a non-domestic worker Sunday shall be reckoned as a day of annual leave, but no day which is a public holiday nor a day on which such non-domestic worker is allowed, in pursuance of the immediately preceding section of this Act, a whole holiday shall be reckoned as a day of annual leave, but if any such day intervenes, between days of annual leave, such days shall be deemed to be consecutive notwithstanding such intervention.
(6) This section shall apply to the employment year current at the commencement of this Act of every person who is a non-domestic worker at such commencement, and this section shall have effect in respect of such employment year and such person as if this section had been in force at the beginning of such employment year, but subject to the modifications that—
(a) if such employment year expires within one month after such commencement, the employer of such person shall be deemed to have complied with this section if he allows to such person not later than three months after the expiration of such employment year, such annual leave as such person may be entitled to under this section in respect of such employment period, and
(b) if such employer has before such commencement allowed to such person in such employment year one or more whole holidays which would be annual leave for the purposes of this section but for the fact that such whole holidays were less than seven or were not consecutive or were both less than seven and not consecutive, the said whole holidays so allowed shall be deemed to be annual leave for the purposes of this section and such person shall only be entitled in respect of such employment year to such number (if any) of consecutive whole holidays after such commencement as is equal to the number (if any) of days by which the number of whole holidays so allowed is less than seven.
(7) if the employer of a non-domestic worker fails to allow annual leave to such worker in accordance with this section such employer shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to the penalties mentioned in the Schedule to this Act.
(8) Where a person who employs a non-domestic worker proposes to grant such non-domestic worker annual leave in pursuance of this section—
(a) such person shall not later than fourteen days before the day on which such annual leave is to commence give notice of his intention to grant such annual leave and of the day on which it will begin;
(b) if such person fails to comply with paragraph (a) of this sub-section, such person shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to a fine not exceeding five pounds.
(9) If the employer of a non-domestic worker allows to such worker in any employment year a period of annual leave earlier than the last seven days (being days which are reckonable as days of annual leave for the purposes of this section) of such employment year and such worker leaves the employment of such employer before the termination of such employment year, such employer shall not be entitled in respect of such allowance of annual leave to reduce the period of notice required for terminating such employment, nor the pay nor other emoluments to which such worker may be entitled at the time of leaving such employment.
I move amendment No. 39:—
In sub-section (2), page 12, line 6, to delete the word "including" and substitute the word "excluding".
This is rectifying a printing mistake.
My reading of sub-section (2) is that there is only one day's pay where the worker works two months?
Amendment No. 39 agreed to.
With regard to amendment No. 40, in the name of Deputy Dockrell, as five-day workers are not specifically mentioned in the Bill, I take it the Deputy will agree that his amendment is not necessary.
Amendment No. 40 not moved.
I move amendment No. 41:—
In sub-section (4), page 12, line 24, to insert after the word "who" the words "are industrial workers and".
The sub-section, as it stands, reduces the qualification in respect of workers under 18 years of age. The amendment confines that provision to workers who are industrial workers. In effect, it re-enacts the relevant provision of the 1936 Act. Workers brought within the scope of the Bill, who are not industrial workers, have not their hours of work determined by statute.
Amendment No. 41 agreed to.
I move amendment No. 42:—
Before sub-section (5) to insert the following new sub-section:—
(5) Where any non-working day or any two or more consecutive non-working days falls or fall immediately before or immediately after a day on which an employer has allowed a non-domestic worker a whole holiday, such non-working day or each of such consecutive non-working days (as the case may be) shall be deemed for the purposes of this section to be a day on which such employer has allowed such worker a whole holiday.
This is a new sub-section. It relates to annual leave only. The legal view appears to be that an employer cannot allow a worker a holiday on a day when normally a worker does not work. A worker doing normal work on a four-day week would get two days' annual leave in a second week. Non-working days must now be counted as holidays. The worker will not lose by this because, under Section 13, he will get a normal week's pay. He gets no pay for the non-working day.
Amendment No. 42 agreed to.
I move amendment No. 43:—
In sub-section (7), page 13, to delete lines 11 to 15 inclusive, and substitute the following:—
annual leave to such worker in respect of an employment year of such worker in accordance with this section, the following provisions shall have effect, that is to say:—
(a) such employer shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to the penalties mentioned in the Schedule to this Act;
(b) such employer shall (whether proceedings have or have not been taken under paragraph (a) of this section) pay to such worker a sum equivalent to the amount which, under the provisions of this Act relating to payments in respect of annual leave, and semi-annual leave, he would have been liable to pay to such worker if he had in fact allowed such worker such annual leave and such annual leave had been allowed during the last seven days of such employment year.
The existing sub-section (7) is being deleted. That sub-section made it an offence for an employer not to allow annual leave, but there was no means by which the worker could get paid in respect of such leave. The new sub-section ensures that he can get paid for annual leave.
Amendment No. 43 agreed to.
Section 10, as amended, agreed to.
I take it that that will not affect my subsequent amendment on the same subject. I am referring to an amendment which I have down to Section 12, dealing with sub-section (3).
At the moment we are dealing with Section 10.
I take it the Deputy is referring to amendment No. 45?
That is a different matter altogether, and is not affected by the amendment I have just moved.
Section 11 agreed to.
SECTION 12.
(1) Every person who employs a domestic worker shall, in every complete employment half-year of such domestic worker during which such domestic worker has been continuously in the employment of such person, and has worked in such employment for not less than 150 days, allow at such time as such person thinks fit to such domestic worker seven consecutive whole holidays (in this Act referred to as semi-annual leave).
(2) Where a person allows to a domestic worker at any time during any employment year of such domestic worker 14 consecutive whole holidays, such person shall, for the purposes of sub-section (1) of this section be deemed to have allowed to such domestic worker, during each of the employment half-years which comprise such employment year, semi-annual leave.
(3) Where
(a) a domestic worker is employed by a person under a contract of service which includes board and lodging, and
(b) such person has given to such worker notice of intention to grant such worker whole holidays during a period commencing on a specified day and ending either on the sixth or the thirteenth day after such specified day, and
(c) such worker, with the consent of such person, remains at work with such person during such period,
such person shall, if in addition to wages, he pays to such worker, in respect of each day included in such period a sum equal to one day's wages be deemed to have allowed to such worker whole holidays on each of the days falling within such period.
(4) Where—
(a) a domestic worker ceases to be in the employment of a person during the currency of the first half of an employment year of such worker, and
(b) such worker has worked in such employment for not less than 150 days in such first half, and
(c) such worker has not been allowed before such cesser semi-annual leave in respect of the portion of such first half during which such worker was so employed,
such person shall pay to such worker at such cesser a sum equivalent to seven days' pay.
(5) Where—
(a) a domestic worker has been continuously in the employment of a person during the first half of an employment year of such worker and became entitled to but has not been allowed semi-annual leave in respect of such first half, and
(b) such domestic worker ceases to be in the employment of such person during the currency of the second half of such employment year,
the following provisions shall, if such worker has not before such cesser been allowed fourteen whole holidays in respect of such employment year, have effect, that is to say:—
(i) in case such worker has worked less than one hundred and fifty days in such second half, such person shall pay to such worker at such cesser seven days' pay,
(ii) in case such worker has worked for not less than one hundred and fifty days in such second half, such person shall pay to such worker at such cesser fourteen days' pay,
(6) Where—
(a) a domestic worker has been continuously in the employment of a person during the first half of an employment year of such worker but did not become entitled to semi-annual leave in respect of such first half, and
(b) such worker ceases to be in the employment of such person during the currency of the second half of such employment year, and
(c) such worker has worked in such employment for not less than 150 days in such second half, and
(d) such worker has not been allowed before such cesser semi-annual leave in respect of the portion of such second half, during which such worker was so employed,
such person shall pay to such worker at such cesser a sum equivalent to seven days' pay.
(7) The Minister may, whenever and so often as he so thinks proper, make regulations varying, in respect of domestic workers, the period of 150 days mentioned in sub-sections (1), (4), (5) and (6) of this section by substituting for such period such other number of days as the Minister thinks proper, and whenever any such regulations are in force the said sub-sections shall have effect, in respect of domestic workers, as if the said period of 150 days was varied in the manner stated in such regulations.
(8) In the case of a domestic worker Sunday shall be reckoned as a day of leave.
(9) This section shall apply to the employment half-year current at the commencement of this Act of every person who is a domestic worker at such commencement, and this section shall have effect in respect of such employment half-year and such person as if this section had been in force at the beginning of such employment half-year, but subject to the modifications that—
(a) if such employment half-year expires within one month after such commencement, the employer of such person shall be deemed to have complied with sub-section (1) of this section if he allows to such person, not later than three months after the expiration of such employment half-year, such semi-annual leave as such person may be entitled to under this section in respect of such employment half-year, and
(b) if such employer has before such commencement allowed to such person in such employment half-year one or more whole holidays which would be semi-annual leave for the purposes of this section but for the fact that such whole holidays were less than seven or were not consecutive or were both less than seven and not consecutive the said whole holidays so allowed shall be deemed to be semi-annual leave for the purposes of this section and such person shall only be entitled in respect of such employment half-year to such number (if any) consecutive whole holidays after such commencement as is equal to the number (if any) of days by which the number of whole holidays so allowed is less than seven.
(10) If any person fails to allow to any domestic worker employed by him semi-annual leave in accordance with this section such person shall be guilty of an offence under this sub-section and shall be liable on summary conviction to the penalties mentioned in the Schedule to this Act.
(11) Where—
(a) the employer of a domestic worker who is entitled to semi-annual leave during the first half of an employment year of such domestic worker, fails to grant such semi-annual leave during such first half-year, and
(b) such worker continues in such employment after the expiration of such first half,
proceedings for an offence under this section based on such failure shall not be instituted against such employer until the cesser of such employment or the expiration of such employment year (whichever is the earlier).
(12) Where a person who employs a domestic worker proposes to grant such domestic worker any whole holidays in pursuance of this section—
(a) such person shall not later than 14 days before the day on which such whole holidays are to commence, give notice of his intention to grant such whole holidays, and of the day on which they will begin;
(b) if such person fails to comply with paragraph (a) of this sub-section, such person shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to a fine not exceeding £5.
(13) For the purposes of this section a domestic worker shall be deemed to have worked in the employment of a particular person on any day on which such domestic worker has been available for service at such person's request for a period of two or more hours.
I move amendment No. 44:—
In sub-section (1), line 44, to delete all words after the word "shall" to the end of the section, page 16, line 20, and substitute the words:—
"in every employment year of such domestic worker during which such domestic worker has been continuously in the employment of such person and has worked in such employment for not less than three hundred days, allow at such time as such person thinks fit to such domestic worker fourteen consecutive whole holidays (in this section referred to as annual leave).
(2) Where a person allows to a domestic worker in his employment seven consecutive whole holidays (in this section referred to as semi-annual leave) in the first half of an employment year of such domestic worker and also allows to such domestic worker semi-annual leave in the second half of such employment year, the provisions of sub-section (1) shall not apply as regards such domestic worker in respect of such employment year.
(3) Where—
(a) a domestic worker is employed by a person under a contract of service which includes lodgings, and
(b) such person has given to such worker notice of intention to grant such worker whole holidays during a period commencing on a specified day and ending either on the sixth or the 13th day after such specified day, and
(c) such worker, with the consent of such person, remains at work with such person during such period.
such person shall, if, in addition to the wages for that period, he pays to such worker a sum equal to the amount of such wages, be deemed to have allowed to such worker a whole holiday on each of the days falling within such period.
(4) Where—
(a) a domestic worker ceases to be in the employment of a person during the currency of the first half of an employment year of such worker, and
(b) such worker has worked in such employment for not less than 150 days in such first half, and
(c) such worker has not before such cesser been allowed during such first half either annual leave or semi-annual leave,
such person shall pay to such worker at such cesser a sum equivalent to the amount which, under the provisions of this Act relating to payments in respect of annual leave and semi-annual leave, he would have been liable to pay to such worker if he had in fact allowed such worker semi-annual leave during such first half and such semi-annual leave had been allowed during the seven days preceding such cesser.
(5) Where a domestic worker ceases to be in the employment of a person during the currency of the second half of an employment year of such worker, and such worker has not before such cesser been allowed either annual leave in respect of such employment year, or semi-annual leave in respect of both the first half of such employment year and such second half, the following provisions shall have effect, that is to say:—
(a) if such worker has worked in such employment for not less than 150 days in such first half, and also for not less than 150 days in such second half, such person shall on such cesser pay to such worker a sum equivalent to the amount which, under the provisions of this Act relating to payments in respect of annual leave and semi-annual leave, he would have been liable to pay to such worker if he had in fact allowed such worker such annual leave, and such annual leave had been allowed during the 14 days preceding such cesser;
(b) if—
(i) such worker has worked in such employment for not less than 150 days in such first half, but for less than 150 days in such second half, and
(ii) such worker has before such cesser not been allowed semi-annual leave during such first half,
such person shall pay to such worker on such cesser a sum equivalent to the amount which, under the provisions of this Act relating to payments in respect of annual leave and semi-annual leave, he would have been liable to pay to such worker if he had in fact allowed such worker semi-annual leave during such first half and such semi-annual leave had been allowed during the last seven days of such first half:
(c) if—
(i) such worker has worked in such employment for less than 150 days in such first half, but for not less than 150 days in such second half, and
(ii) such worker has not been allowed before such cesser semi-annual leave during such first half,
such person shall pay to such worker on such cesser a sum equivalent to the amount which, under the provisions of this Act relating to payments in respect of annual leave and semi-annual leave, he would have been liable to pay to such worker if he had in fact allowed such worker semi-annual leave during such first half and such semi-annual leave had been allowed during the last seven days of such first half.
(6) The Minister may, whenever and so often as he so thinks proper, make regulations varying in respect of all or any particular class or classes (defined in such manner and by reference to such things as the Minister thinks proper) of domestic workers all or any of the periods of 300 days or 150 days mentioned in sub-sections (1), (3), (4) and (5) of this section by substituting for such period or periods such other number of days as the Minister thinks proper, and whenever any such regulations are in force the said sub-sections shall have effect, in respect of the domestic workers or the class or classes of domestic workers to which such regulations apply, as if the said period or such of them as are affected by such regulations were varied in the manner stated in such regulations.
(7) Where any non-working day or any two or more consecutive non-working days falls or fall immediately before or after a day on which an employer has allowed a non-domestic worker a whole holiday, such non-working day or each of such consecutive non-working days (as the case may be) shall, for the purposes of this section, be deemed to be a day on which such employer has allowed such worker a whole holiday.
(8) In the case of a domestic worker Sunday shall be reckoned as a day of leave.
(9) This section shall apply to the employment year current at the commencement of this Act of every person who is a domestic worker at such commencement, and this section shall have effect in respect of such employment year and such person as if this section had been in force at the beginning of such employment year but subject to the modifications that—
(a) if such employment year expires within one month after such commencement, the employer of such person shall be deemed to have complied with sub-section (1) of this section if he allows to such person, not later than three months after the expiration of such employment year, such annual leave as such person may be entitled to under this section in respect of such employment year, and
(b) if such employer has before such commencement allowed to such person in such employment year one or more whole holidays which would be annual leave for the purposes of this section but for the fact that such whole holidays were less than fourteen or were not consecutive or were both less than fourteen and not consecutive the said whole holidays so allowed shall be deemed to be annual leave for the purposes of this section and such person shall only be entitled in respect of such employment year to such number (if any) consecutive whole holidays after such commencement as is equal to the number (if any) of days by which the number of whole holidays so allowed is less than fourteen.
(10) If the employer of a domestic worker fails to allow annual leave to such worker in respect of an employment year of such worker in accordance with this section, the following provisions shall have effect, that is to say:—
(a) such employer shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to the penalties mentioned in the Schedule to this Act;
(b) such employer shall (whether proceedings have or have not been taken under paragraph (a) of this sub-section) pay to such worker a sum equivalent to the amount which, under the provisions of this Act relating to payments in respect of annual leave and semi-annual leave, he would have been liable to pay to such worker if he had in fact allowed such worker such annual leave and such annual leave had been allowed during the last 14 days of such employment year.
(11) Where a person who employs a domestic worker proposes to grant such domestic worker any whole holidays in pursuance of this section—
(a) such person shall not later than 14 days before the day on which such whole holidays are to commence give notice of his intention to grant such whole holidays and of the day on which they will begin;
(b) if such person fails to comply with paragraph (a) of this sub-section, such person shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to a fine not exceeding £5.
(12) For the purposes of this section a domestic worker shall be deemed to have worked in the employment of a particular person on any day on which such domestic worker has been available for service at such person's request for a period of two or more hours.
The whole of the section is deleted and a new section is substituted. The principle underlying the original section is that a domestic worker shall get seven days' holidays in each half year, with the option given to the employer of granting 14 consecutive days in respect of a whole year. The amendment adopts the principle of 14 days' holiday in the worker's employment year, with the option of giving seven days in respect of each half-year. In practice the two systems will work in the same way for the employer and the worker, but we think that this is an improvement on the original section of the Bill.
In the second line of the amendment I think "line 20" should be line "21".
It should be "21". That is clear.
Amendment, as amended, agreed to.
I move amendment No. 45:—
To delete sub-section (3).
Sub-section (3) provides that where a domestic worker is employed by a person on a contract of service which includes board and lodging, and such employer has given notice to such worker of his intention to grant such worker holidays during a certain period, then such worker may, with the consent of the employer, remain at work during that period of holiday, provided that in respect of every day the worker remains at work the worker will get an extra day's pay. In other words, we set out in this Bill to provide holidays for domestic and non-domestic workers, and in the section we propose to enact a provision whereby, if a person is given double pay for the period of holidays, no holidays whatever need be provided.
With the consent of the worker.
Yes. That is a particularly pernicious section. You can understand the way in which it will operate. An employer may say to a worker: "I cannot allow you to go on holidays for a fortnight, as it would seriously inconvenience me," and a timid worker, perhaps a maid working on her own, nervous as to what the consequence of saying "no" will be, may say: "Very well, I will consent to forgo my holidays if I get double pay for the period of the holidays."
I think that is cutting at the whole principle underlying the Bill. What you are doing is, you are giving that person 54 weeks' wages for 52 weeks' work. That is all you are doing. If you think holidays are desirable, you should insist on that person getting holidays. There is no case at all for giving a person 54 weeks' wages for 52 weeks' work. You might say to the person, "You ought to have more wages for the 52 weeks," but there is no case for giving 54 weeks' wages for 52 weeks' work while the person remains at work. If we are passing a Bill described as a Holidays Bill and it is advantageous to promote legislation whereby persons will get holidays, we should insist on their getting holidays. There is no reason for making this extra provision at all.
I would rather approach the whole problem of holidays from the point of view of insisting that the worker must take holidays and not allow a worker to compromise himself or herself by accepting an arrangement to take pay in lieu of holidays. In an earlier Bill we provided that it shall not be lawful for any industrial worker during any period of annual leave to do, for reward, any industrial work. If we go to the extent of proscribing the right of an industrial worker to do, let us say, a half day's work for wages during the period of his holidays, and if we think that offends so seriously against the principle of compelling him to take his holidays, why do we, with our eyes open, provide that a domestic servant may cancel her whole holidays once she gets double pay for the period? A situation may arise by which a maid for reasons of her own, may decline to take holidays year after year. You are not passing a Bill in that case to give holidays at all, but to give her an extra two weeks' pay in the year. It is not a Holidays Bill. It may be described as a Wages Bill, but it is not a Holidays Bill.
I think the scheme of allowing a worker to cancel holidays for a cash payment is cutting at the whole principle of providing holidays for workers and is contrary to all the provisions which we made in the Conditions of Employment Act. If a number of workers are allowed to compound their rights in this fashion, it is taking from the case that it is desirable to provide holidays for workers. I think the Minister is saving up for himself a storm which may develop from certain sections in this Bill by his admission in this section that there is no need to provide holidays for workers at all, and that all you have to do is to give extra pay. I do not know what case can be made for the section, but I certainly think it is a complete contradiction of the whole principle of the Bill.
I do not think this is a very satisfactory arrangement, but it is the only one I can think of to deal with the particular problem of a domestic servant who has no home to go to. I do not know what the Deputy's solution is for that type of worker. It is easy for the Deputy to say that we should insist on the worker taking a holiday. But the employer of the domestic worker who has no home and no place to spend a holiday would be put in a rather peculiar position if bound by law to say: "Your holidays start to-morrow; you must get out for fourteen days; I know the amount that I am going to pay you for wages and board and lodging will not provide a decent lodging for the period; I know you are not going to get that lodging free, but you have to make the best of it."
Some provision must be made to deal with that particular case. That case will happen and does exist to the knowledge of Deputies. Therefore, an arrangement must be made to enable that domestic servant, who cannot in fact take holidays in the circumstances of her life, to remain at work. But, at the same time, we want to institute some safeguard which will prevent an employer taking advantage of that arrangement to deprive, by pressure of one kind or another, a domestic servant of her holiday period. Therefore, we put in this provision, that if the worker consents and wants that arrangement she can remain at work; but if she does, the employer must pay double wages. That ensures the consent of the worker, in the first instance, and is a very direct inducement to the employer not to put pressure on the worker to secure consent in the other instance. However, possibly the Deputy may be able to suggest some better arrangement and, if he does, I am prepared to consider it.
I submit that there is a problem there which we cannot leave alone. If we are going to provide for annual leave for domestic servants we must deal with the particular problem with regard to the type of servant who has no home, or does not want to go home for some reason, and who cannot take a holiday in the sense that she can rent a room or go to the seaside or provide board and lodgings for herself outside her employer's house on the amount of money at her disposal. Something must be done for that particular type of worker if we are going to include them in the Bill at all. This is the only arrangement that has occurred to me, to say that such worker need not take a holiday, but in order to prevent her being put in the position of being forced by her employer to give her consent we insert this provision for double wages as a deterrent to the employer in that particular way. I am prepared to consider any alternative arrangement which the Deputy can suggest.
I think what the Minister says carries great weight as the difficulty does exist. There is, however, the other side of the picture. In so far as this Bill is designed to operate effectively, it is directed against the house which has not been in the habit of giving domestic servants any holidays at all. In the vast majority of well-run houses, domestic servants do get holidays. This Bill is designed to get at the house where they do not receive holidays. I apprehend that in such a house, if the option is left to the servant of remaining at work and receiving additional pay, she will, in fact, get neither holidays nor pay and it will be perfectly impossible to secure that she gets either one or the other.
I am reluctant to suggest that the Government should be poking its nose into everybody's domestic circle. Nevertheless, it occurs to me that a somewhat analogous position arose in connection with one of the Conditions of Employment Acts. It was there pointed out that there were certain persons who could only get certain types of casual work owing to their special circumstances. They were entitled to apply to the Minister for a certificate exempting them from the provisions of the Act so that they could work under somewhat different conditions from an ordinary able-bodied person. If they had that certificate, their employer was excused from certain concessions which he was required to give to the ordinary able-bodied worker. I do not know whether it would be administratively possible to arrange that, if a domestic servant wished to avail of the provision of taking double pay instead of holidays, she should apply to the Minister for Industry and Commerce and get an analogous certificate entitling her to do so. That would provide the Ministry with an opportunity of inquiring into the question as to whether a girl was without any home really to which she could go or whether it would be hardship to require her to take holidays. An inquiry having been made, she would be furnished with a certificate, and no difficulty would arise. If an inquiry has to be made every year, I think it would give rise to a very undesirable situation, inasmuch as a household would be continually trespassed upon by Government inspectors. I make that suggestion as one way out of the difficulty.
The big difficulty is that we estimate there are about 90,000 domestic servants who will be affected by the Bill, and if a substantial proportion of them wanted to get a certificate, it would require very elaborate machinery to operate that system.
I can see a case where a domestic servant employed in Dublin whose home was in Cork might say, "I cannot go home to Cork, because the travelling expenses will absorb all the money." But the same domestic servant employed in Cork would not be in that position. You would have to relate your decision to the particular circumstances of the moment.
I admit that the fact that there are 90,000 persons engaged in domestic service will give rise to some difficulty, at first. Until the Bill has been some time in operation, you would have an immense volume of work to determine the facts arising in each application but after the first impact of regulating the situation in the early stages of the administration of the Act, the number of applications coming forward would be very small. It would not be a recurrent problem. The big problem would occur when the Bill was first brought into force. After that, the number of applications coming in should not exceed 100 or 150 in 12 months. That, of course, is only one way out of the difficulty but I think it does provide a way which would guard against evils from both sides. I make the suggestion for the consideration of the Minister.
I would not be in favour of trying to get certificates in a number of cases. It has been suggested that certain servants would be browbeaten and such people might possibly be compelled to accept their employer's view. Even in such cases, I think if the matter were followed up, the employer would be induced to see that the servant did get her holidays. One other point which makes me rather agree with the Minister's view is this. In the case of a certain number of domestics, if they return to their own homes their conditions would be much worse than if they remained in service. On that account, I think probably a certain percentage of domestics would be anxious for one reason or another to remain at work. The proportion would probably be even higher than the Minister suggests. I agree with Deputy Norton that the ideal arrangement is that they should take their holidays. They would be the better for them in every respect. At the same time I think that no matter what Act you are administering, so far as you can make the provisions fall in with the ideas of people generally, you will find the Act can be administered more easily and will give greater satisfaction.
I have merely stated the problem. The particular solution which I submitted has nothing to recommend it except that it may work— I mean work without difficulty. It puts the obligation of making the decision on the worker herself. She has to decide whether she is going to take advantage of the provisions of the Bill or not, and it therefore reduces to a minimum the administrative action that would be necessary for the purpose of enforcement. In the ordinary course, I should imagine the Department of Industry and Commerce will not act to enforce the provisions of this Bill in relation to domestic servants except on complaint being received. It would be impossible to contemplate our proceeding towards enforcement of the provisions of the Bill to the same extent as is necessary in connection with the enforcement of the provisions of the Unemployment Insurance Act where you have inspectors on the road going into every employment, inspecting records and so forth.
Of course, domestic servants are not covered by that Act, but I presume some similar arrangement is made by the Department of Local Government and Public Health in connection with the enforcement of the National Health Insurance Act. It will be impossible to enforce this Act in that way. It would involve a huge organisation and, what Deputy Dillon has rightly objected to, Government interference with private domestic arrangements. Therefore, we have provided that an inspector under the Bill will have no right to enter into a residence or make any inquiries unless the Minister has certified that he has good reason to believe that an offence has been committed. That in effect means, unless the Minister has received complaints, sufficiently specific, in his opinion or in the opinion of his officer who will be dealing with the matter, to justify action. Therefore, we have got to rely on this section of the Act being enforced by the workers themselves, by the workers taking measures to see that they get their rights. The particular arrangement which I have suggested of dealing with the difficulty of a domestic servant who does not want to leave the residence of her employer for the purpose of holidays conforms to that general idea. If Deputies can suggest a more effective system I am prepared to consider it. I do not care for the system myself. The only thing it has to recommend it is its simplicity and the probability that it may work effectively.
The Minister is very innocent if he thinks that the workers will be able to insist on the enforcement of this particular sub-section. I could understand that suggestion coming from the Minister if the workers concerned were organised and had some driving force behind them, but, being an unorganised body, I do not see any force in that kind of argument.
In the course of time, I should imagine that the number of cases of evasion will be very few.
In my opinion the overwhelming majority of the 90,000 domestic servants that are supposed to be in this State will, when they get holidays, go to their own homes. I disagree entirely with Deputy Dockrell when he thinks that, simply because the home of a domestic servant is not as good as the place where she is working, she is not likely to go home on holidays under legislation of this kind.
I did not say that. I said they would not go home in all cases.
I think that in the future as in the past, no matter what may be put into the section, the domestic servant will go to her own home on holidays, and will there have an enjoyable holiday.
But suppose she has no home.
I would be glad if the Minister would deal with that point, and tell us from the information which, I am sure, he has at his disposal, what percentage of domestic servants have no home to go to.
I have not the remotest idea, but I know from my own personal experience, and from the experience of friends, that there are domestic servants in that position.
I was prompted to intervene in this debate by the remark made by the Minister as to the insistence on the part of domestic servants on the enforcement of this particular section. That, I am afraid, will not come about until they are organised, and have some driving force behind them to save them from victimisation.
I think that this provision in the Bill is by no means satisfactory. It will open the way to widespread abuses and to evasion of the whole Act. I know there is a difficult situation to be met, but I am not sure that in the method chosen in this section we are trying to meet it in the most satisfactory way. We are providing that if the employer pays the maid double pay for the period of the holidays, then he or she is deemed to have complied with the Act.
No. The Deputy must not skip over the essential part of the Bill, namely that if the maid so desires she can get this.
If the employer pays the maid double wages for the period of the holidays he or she is deemed to have complied with the Act—that is, once he or she gets the maid to say that she is satisfied to take that. Surely, we all know what happens in the case of domestic servants. Young girls come out of institutions—timid, quiet, fearsome, unprotesting girls— and go into domestic service. An employer sees himself or herself up against the possibility of the maid going away on a fortnight's holidays, and of being seriously inconvenienced during her absence. He or she will say to the maid: "If you insist on going away for this fortnight's holidays I am afraid I will have to dismiss you beforehand, and get in somebody who will agree to take extra wages in lieu of the holidays."
If the employer takes that line, the maid will, rather than be thrown out of employment and of having the trouble of looking for another situation, consent to that course, even though she does not like it. Having got the maid's consent under economic, or any other type of pressure, the employer is held to have discharged his responsibilities once he or she pays the maid two weeks' wages. One of the additional difficulties caused under this section is that you are putting a premium on the maid's consent by giving her double pay if she does consent. I think the section might work better if you were to say to the maid that if she consents to work during the holidays the employer has the right not to pay her for a fortnight.
If the Deputy moves an amendment on those lines I am prepared to argue it.
Will the Minister accept it?
I will not promise, but I am prepared to argue it. I do not like this arrangement any more than the Deputy. Some arrangement has got to be made, and until a better alternative is submitted I am wedded to this.
I think it would be better to put the obligation on the employer to give the maid holidays. There is no use in giving the maid an extra two weeks' pay in lieu of holidays because by not accepting the holidays she is indicating that she does not want holidays. There is no case for neutralising the desire for holidays by giving her the extra payment. I think that in this section you are opening the door wide to an evasion of the provisions of the Act. Although it is administratively difficult, I do think there is something in the point made by Deputy Dillon: that employers who want to avail of this arrangement should be compelled to get a certificate of approval from the Department of Industry and Commerce, and that it should be made difficult for them to get it in these cases. If employers knew that there were difficulties to be encountered before they could get a certificate and be immune from prosecution, I think they would be less likely to avail of this section. I think it would be much better to insist that every maid has a right to her holidays and that she must take them.
And if she does not, put her out.
I would appeal to the Deputy to restrain his Australasian impetuosity. He has come back bubbling over with enthusiasm. It would be probably better to insist that the employer must grant holidays and provide some inexpensive court of appeal before which the employer must give reasons why he did not allow the maid on holidays —to make it a defence before some inexpensive court of appeal that the maid consented to forego her holidays in circumstances which made it impossible for her to avail of them. One can readily understand the position of a maid who has got no home to go to. Rather than be turned out, she will agree to accept the extra wages. I think that this provision is likely to lead to a wholesale evasion of the Act. It would be better, I think, to insist that there should be a certificate of approval before the holidays can be nullified by the double payment of wages.
I am not prepared to accept an amendment merely to delete the provision without something being substituted for it.
I suggest to the Minister that he should try to devise a more satisfactory section himself.
I do not think it is possible to do so. I have spent more time on it than the Deputy.
Will the Minister make another effort?
If the Deputy submits an amendment I am prepared to consider it.
What about Deputy Dillon's alternative?
Well, it may have something to recommend it. The administrative difficulties and costs would be too great.
This is a measure to make people do the right thing.
In relation to domestic servants we must keep before us the fact that the workers themselves will have to assert their rights.
In a case of this kind, where you are dealing with single girls, their position will be hopelessly ineffective.
In the case of domestic servants in the towns there is the position at the moment, one which is likely to continue for a time, that the demand exceeds the supply. Most domestic servants are in the position of being able to look forward with confidence to fresh employment if they lose the positions they have at the moment. They are not in the completely dependent position that Deputy Norton suggests—in the cities at all events.
I think the Minister should give some consideration to the manner in which the worker consents
I would like to have something from the Deputy.
The Minister should not make it too difficult to get over this matter. I am satisfied that 50 per cent. of the domestic servants have not homes to go to. A very large percentage come from institutions, convents and orphanages, and if it is made compulsory on employers to pay these people double wages, or some other alternative, it will simply mean pushing these girls out on the roads. That will be the ultimate effect. I do not think we should do anything to make that possible, even for only 10 per cent. of those concerned. This is a very serious question. If we force employers to put even 10 per cent. of domestic servants out on the roads—because that is what it will amount to, owing to a great deal of red tape that will have to be gone through—we will be adopting a very dangerous principle. I think the Minister's scheme is the best one to meet the situation, and he should be very slow to change the section.
I will not change it unless I can get a better alternative. We cannot leave the position simply by deleting the sub-section. I would not agree to that.
The Minister has statistics in his Department which give valuable information. Surely he made inquiries before inserting a provision like this in the Bill as to the number of people, as some Deputies suggest, that is likely to be driven on to the roads, if employers do not want to do the right thing. Has the Minister any idea of the percentage?
I would be rather surprised if the figures are what Deputy MacEoin suggested. The majority of the maids or domestic servants around Dublin come from the country and from fairly good home surroundings. No matter what their home surroundings may have been in the past, they will always find better health by leaving the place they are working to go home for holidays. I should like to see proper provision made in that respect.
There are many cases where girls work with other girls who have homes to which they can go.
That is the primary purpose of the Bill.
Is it intended to administer this Bill by ordinary or by special inspectors?
By special inspectors. There are special provisions relating to inspectors with regard to domestic householders.
There might be some little safeguard provided for the worker, when consenting to this arrangement, such as requiring consent to be freely given in the presence of some other person, not the employer. For instance, the local sergeant of the Gárda, the parish priest or curate might be asked to act. It should be intimated generally that the desire was that the worker should have holidays, and that such a medium of avoiding the granting of holidays should not be availed of in cases where workers had not a home to go to but that they should be encouraged to take holidays.
I would not agree to bring in the sergeant of the Gárda.
Would not the National Health Insurance inspectors act?
That is so. Some system of that kind might be devised. I do not know what Deputy Norton has in mind.
I want to avoid a possibility of the employer having to say whether consent was given or not.
In cities and towns the demand for domestic servants exceeds the supply, and I think the prospect of a domestic being intimidated in that way is very remote. I do not deny that there will be cases, but I hold that any domestic servant leaving employment has little difficulty in finding other employment.
Surely the Minister knows that there is exploitation of girls from institutions who cannot get employment.
For the first year. That is all. After the first year they demand their rights.
Amendment by leave withdrawn.
Section 12, as amended, agreed to.
Section 13 agreed to.
SECTION 14.
(1) Where—
(a) a worker is allowed by his employer under this Act a number of consecutive whole holidays, and
(b) such worker was, immediately before the commencement of such holidays, entitled as part of his remuneration to accommodation,
such employer shall, in addition to any sum payable to such worker under this Act in respect of such holidays, pay to such worker, in respect of any day falling within such holidays during which he does not receive accommodation, in case such worker is employed in a county borough or the borough of Dun Laoghaire, the sum of one shilling or, in any other case, the sum of seven-pence.
I move amendment No. 46:—
In sub-section (1), page 17, to delete all words after the word "accommodation", line 7, to the end of the sub-section and substitute "the sum of one shilling and nine-pence".
As we are not likely to finish the discussion on this amendment before 6.30, perhaps it could be left over.
Progress reported. The Committee to sit again at 7.30.
