I move that the Bill be recommitted for the purpose of taking amendments only.
Agreed.
Holidays (Employees) Bill, 1938—Recommittal.
If Deputy Dockrell has another point to make it might be made on amendment No. 1. If amendment No. 1 is carried, amendment No. 2 cannot be moved.
I move amendment No. 1:—
In page 4, Section 2 (1), to delete lines 3 to 8 inclusive, and substitute the following:—
the expression "domestic worker" means a person who—
(a) is a worker, and
(b) is not an industrial worker,
and
(c) either—
(i) is entitled under his contract of service to free lodgings either in his employer's house or elsewhere, or
(ii) does work of a personal or domestic nature in or about the dwelling-house of his employer;.
I think this amendment meets Deputy Dockrell's point. The amendment is designed to achieve two purposes. First, there was some doubt as to whether employees, excluded from the scope of this Bill under clauses (a) to (o) of the section, might not be brought under the Act under the definition of "domestic worker." The amendment clarifies that position by specifically excluding anybody who is not a worker: that is anybody mentioned in clauses (a) to (o). It has also been decided to clarify the position of industrial workers. They are now being specifically excluded from provisions of the Act relating to domestic workers. There is the remote possibility that some industrial workers are entitled to free lodging and who might, as a result, be entitled not merely to six public holidays by virtue of the relevant sections of the 1936 Act but to an additional 17 days' leave under the Bill.
The Minister has mentioned the point which I wish to raise. My point was, as the Minister says, that a person who is excluded might be turned into a domestic worker by the provision of lodging and be brought in. If the Minister tells me that that point is covered under this amendment, then I am quite satisfied.
It is.
Amendment No. 1 agreed to.
Amendment No. 2 not moved.
I move amendment No. 3:—
In page 4, Section 2 (1), to insert between lines 17 and 18 the following:—
the expression "a full day's pay" when used in relation to a worker means the amount payable to such worker under his contract of service in respect of a normal full working day.
I have got an amendment farther down on the Paper. It is amendment No. 25, which reads:—
In page 12, before Section 10 (3), to insert a new sub-section as follows:—
The expression "one day's pay" in the immediately preceding sub-section of this section shall be reckoned as one-sixth of the normal weekly wage (exclusive of pay for overtime and deductions for short time).
Deputy Dockrell had better wait until the Minister has moved amendment No.3.
Amendment No. 3 is consequential upon the principle of further amendments which appear on the Paper. It is necessary to insert this amendment by reason of the fact that these other amendments would be moved later. The purpose of these other amendments is to ensure that the worker would be paid for a public holiday even if that public holiday falls on a non-working day. This is a matter which we discussed here at great length when the Bill was before us on the Committee Stage. I finally decided, in all the circumstances of the case, that it would be better to provide that where a public holiday fell on a non-working day, the worker concerned would nevertheless get payment in respect of the public holiday. But the problem arose as to what should be given in the circumstances. I came to the conclusion that the worker ought to get a full day's pay for this day. That is what this amendment proposes.
I take it now we are discussing amendment No. 3 and amendment No. 25 together?
Deputy Dockrell may raise the point of amendment No. 25 in connection with this amendment.
There are several points that arise on this. First of all, there is, for instance, the worker who does six days' work on five days. We had a very full discussion on that on the last occasion on which this Bill was before us. It transpired then that there were several classes of workers who worked only five days. I am not seeking to bring in under this the point with regard to people who are working a short time. I think the question of the railway shop-workers was raised, and I am not in any sense referring to them. I am referring to a person who is doing six days' work on five days.
The Minister has repeatedly said that the object of the Conditions of Employment Act and presumably of this Bill is that a worker should not be penalised by being laid off on a holiday. In other words, he should get paid for his holidays. I think the Minister is going beyond that now, because the position is that the class of worker whom I wish to talk about is to get six days' pay for five days' work. Quite granted. But with regard to these six days' work I would wish to raise a point that if he gets paid for his holidays he is going to get seven days' pay in the week. I would submit to the Minister that that was never intended. That will raise a further crop of grievances. Apparently there is grave discontent when one body of workers finds itself in a more favoured position than the workers in another body, even where they are practically working in the same trade and under the same conditions. There are certain trades where one section of them work six days or possibly 48 or 44 hours a week altogether. On the other side, men work a five days' week. The position is that in one case they are going to get six days' pay and in the other case, they will get seven days' pay. There is another point that arises under this full days' pay. First of all, I take it that it is payment in lieu of a bank holiday, that there is also the question of payment in lieu of annual leave. I take it that this is intended to apply in lieu of annual leave. Will the Minister say if I am right?
It does not arise altogether. It only arises in connection with a bank holiday.
I would like to suggest that the Minister would, perhaps, set me right—where is the definition of this payment in lieu of annual leave? Perhaps the Minister can consider that while I am making the point that I wish to raise. When the Conditions of Employment Act was going through this House questions cropped up as to what a day's pay was. While there are some workers— I think they are rather the exception —who work a perfectly even week, namely, eight hours a day for six days, the usual procedure is to work 8½ hours for five days of the week. That would be 42½ hours altogether and then they work the remainder of the short day on Saturday.
When the Act was going through the House there were two schools of thought as to what was to be the payment for a bank holiday, if and when it fell on a Saturday. There were not very many of them, but some people would prefer to let the tree lie as it falls. The position was that some people contended that if a bank holiday fell on a Saturday there should only be the shorter hours that would have been worked on that day. It has been generally accepted that a day's pay under that Act was the number of hours which the worker worked, divided by six. It seems to me that this amendment is going to cut right across that view. I would like to ask the Minister, when replying to these points, to make that position perfectly clear. There are two points that arise under this:— First of all, the five-day worker, or possibly less, who has worked a full week on a shorter number of days. If he is going to get a day's pay for the day on which he is not working I contend that he is then getting seven days' pay for six days' work. Now, there is the other point about the payment in lieu of annual leave, as to how far this will become the definition for the payment in lieu of annual leave. The practice up to this has been—and I contend it is a fair one—to divide the number of hours worked by six, and that was the standard number of hours to which the worker was entitled. Perhaps the Minister will make both points more clear.
There are two points in connection with this amendment. One of them would come more correctly on the amendment suggesting the removal of Section 7, but apparently the discussion is to take place on this amendment instead. The Minister stated that he was proposing to remove that section and that, therefore, if a holiday fell on a non-working day it would have to be paid for. When this was under discussion on the Committee Stage the Minister stated, in reply to Deputy Norton, that it was not established yet that the Conditions of Employment Act did, in fact, say that if the holiday fell on the short day it must be paid for. I should like to know whether the Minister has changed his mind in regard to the Conditions of Employment Act.
I do not think I used the expression "not established" in reference to the 1936 Act. The practice was to make payment in respect of a holiday when it fell on a non-working day. I suggested there was some doubt as to the exact meaning of the Act in that regard. There is no doubt it has been the practice to do so, even though the basis of the practice may be questioned.
It was not a universal practice.
The Minister did indicate that it was not established that it was necessary by that Act that it should be done, yet now, in introducing this amendment, he says the effect will be that they will have to be paid for. Has he reversed his view of the Conditions of Employment Act, or can he say whether there is anything in this Bill which says that if a holiday falls on a short day it must be paid for? In introducing that aspect of it, I think the Minister might have made more clear his reasons as to why anybody should receive seven days' pay, or the possibility of seven days' pay, for only five days' work. There does not seem to me to have been any argument advanced for that purpose. On another point that Deputy Dockrell raised about annual leave, the Minister says it is not effective. I should like to draw his attention to Section 10 (2) (c), paragraphs (i) (ii), in which it is stated that if a person leaves employment without having received annual leave, that person is to be paid at the rate of one day's pay in respect of certain stated periods set out in the paragraphs. I think the Minister will admit that this definition does have a bearing on the question of annual leave, in which case again it will be possible to get seven days' pay for six days' holidays.
I would like to know from the Deputies why they are objecting to a man working five days being paid for a holiday on the non-working day, when he is expected to work just the same as the man doing the work in six days. One class of worker is being paid £3 for a six-day week of 46 hours or 44 hours. Another class of worker is being paid the same wages for working five days. When the bank holiday falls, it means that the man working the six days will be working eight hours less for that week, and the man working the five days is working his 44 hours and yet he gets nothing as a result of the fact that the holiday falls on the non-working day. That is not justice to the man doing the five-day week and working the same number of hours as the man working six days who gets paid for the bank holiday.
I think the Deputy misunderstands the position. We are talking about a bank holiday falling, not in the five days on which he is working. If it falls on a working day, he is entitled to it. The point is that he will have got six days in the five days, and he will have another day's pay for a day he does not work.
The man working five days will work 44 hours. The man with the six-day week will work only 39 hours that week. The man working the 44 hours is entitled to pay for the extra hours he works.
That is precisely the point that arises. I will admit it is a difficult matter, one upon which I did not make up my mind easily, as Deputies are aware, because we are only dealing with this matter now on the Report Stage of the Bill after a very protracted discussion in Committee. It is not very easy to decide in which direction equity lies, but it is a fact that when a holiday falls upon a non-working day, which in the ordinary course is on a Saturday for a five-day week worker, the five-day week worker does a full week's work. The worker who is doing the same work for the same remuneration, but spread over six days instead of five, does not do the full week's work, and you put the six-day worker in the advantageous position if you adopt the Deputy's suggestion and, as it is suggested, you put the five-day worker in a disadvantageous position.
The position is that the majority of the holidays will fall upon working days, when the six-day week worker will still have to work upon the sixth day, whereas the five-day week worker will have to work only upon four days. I do not know that there is any foundation for the suggestion that this arrangement will cause discontent in industries where the two practices are adopted by different employers. So far as industries are concerned, it has been the practice up to now, although, as Deputy Dockrell said, it has not been uniformly the practice, to pay for holidays on a non-working day. So far as my information goes, employers have done so, and there is no evidence of discontent amongst the workers. I do not think, in so far as non-industrial workers are affected, that there will be any discontent there either. The Deputy's suggestion about the definition of a day's pay is inequitable. I think he will see that, because it would mean in the case of three, four or five-day workers substantially less than a day's pay, and I do not think that could be defended.
So far as annual holidays are concerned, the annual holidays are based on a week's pay, but where payment has to be made in lieu of holidays— that is, where the worker leaves his employment before holidays become due and is entitled to cesser payment in respect of two, three or four days —this definition is obligatory. I might have been disposed to have left the position differently if I could see a clear way through all the cases that would arise, that is, all the cases of workers who do less than six day's work in a week. I could not see a clear way, but there is clarity and simplicity in the alternative arrangement providing that payment will be made for holidays whether those holidays fall upon working or non-working days and, on the whole, I do not think that that is an inequitable arrangement. It does mean that some workers will get slightly more than a full week's wages in a week in which a holiday occurs when the holiday falls upon a non-working day and I do not know that that is altogether unfair having regard to the fact that this particular class of workers, because of the arrangement of the work, are doing more work in that week than the workers who work the more ordinary six-day week and who consequently get a reduced amount of work to do by reason of the advent of the public holiday. I think, on the whole, this is the more equitable arrangement and I am prepared to defend it on that ground.
I do not think the Minister has really answered the points I raised. He first of all refers to a five-day week worker, in the case where a bank holiday falls on one of the five days on which he was working. There has been no contention that he should not be paid for that. I refute that suggestion if the Minister has got that into his mind. The point is that for a five-day worker—and for all I know there may be four-day workers— my contention is that the Minister says that the spirit of the Act is that that worker should not be penalised. In this case he is getting an advantage, I contend. That is my contention as regards the five-day worker who has worked a full week in the five days and where a bank holiday falls on a non-working day. My contention is that he is being given an advantage over his fellows and an advantage which, according to the Minister's own words, he was not intended to enjoy. The next point—and the Minister does not answer it—is about the definition of a day's pay. My contention is that if it is for a six-day worker I want to divide the week's wages by six, and that for a five-day worker I presume it has to be divided by five, but the Minister has not answered that. The Minister will recollect perfectly well the discussion on the Conditions of Employment Act, in regard to the two sets of people who wanted, where a bank holiday fell on a Saturday, to pay a man the shorter hours, and the Minister contended that that was unfair and he defined a day's pay as the number of hours worked divided by the number of days which he worked it on, namely, six. That is the commonest and, in most cases, the only instance that will be arising. My contention is that that was given in return for doing away with the short payment where the bank holiday fell on a Saturday. My contention is that the practice has been up to this to divide the number of hours worked by the number of days worked. That, I think, was the universal practice, and the Minister is now doing away with that. He is giving something over and above what they would have earned previously, and, in my contention, what they are entitled to. They are entitled to one-sixth of the week that they work, namely, their normal week. The Minister, apparently, is going to give them something more than that. Where they work five longer days and one short day, he is going to give them a longer day's pay. My contention is that that is not in conformity with the spirit which was worked out under the Conditions of Employment Act, and it is introducing a new principle. In any case, I would like the Minister to say, so that it may be put beyond yea or nay, if that is going to be the case, and to make it quite clear if this day's pay is payment in lieu of annual leave or whether it is only for the bank holiday.
If the Deputy's intention in amendment No. 25 was to limit its operation to six-day workers only and to provide, in the case of five-day workers, that a day's payment will be reckoned as one-fifth of the week's wages, then I do not think there is any difference between his amendment and mine. They both have the same effect. I do not think the Deputy is correct in saying it was the practice under the 1936 Act that a week's pay was divided by six to determine what a day's pay was. If that was done I do not think it was correct. Under the provisions of that Act as it stands the workers should get the pay of the day on which the holiday falls but we have got now to deal with a problem the extent of which was not fully realised when the 1936 Act was being framed, that is, the problem constituted by the existence of a number of workers who work a full normal week in five instead of six days. I am not clear that the Deputy is objecting to this arrangement, under which payment is made in respect of a public holiday falling upon a non-working day or is urging that that is going to cause a difference in the treatment of two classes of workers which will arouse discontent between them. I do not think that that latter objection can be regarded as valid, first of all, having regard to the fact that the public holiday, will, in the ordinary course fall upon a non-working day. Only some of the public holidays are moveable and rarely will a holiday fall upon a non-working day. A holiday will fall on Saturday only once in seven years. The great majority of the public holidays will fall upon days which will be working days for both five and six-day workers, and a simple calculation in respect of any normal working week will show that that operates to the very slight advantage of the five-day week worker. Take the position of the five day week worker in the case where the holiday falls upon a Saturday. He does his full working week. The six-day week worker does ordinarily five hours less work and the Deputy's proposal is that, despite that fact, the five-day week worker should get no more than the six-day week worker although he has done the full normal working week as against the six-day week worker who has got a holiday from work.
Yes, but then he has got more pay because he has got a full day's pay for it.
He works eight hours longer.
He does not.
Take the case of a worker whose working week is 45 hours. Let us take two workers. One does nine hours a day for five days; the other eight for five days and five on the short day. When the holiday falls on Monday the five-day week worker will work 36 hours in that week, and the other six-day week worker will work 37, but so far as the amount of money they get is concerned there is no difference. The holiday falling upon a working day is slightly to the advantage of the five-day week worker. On the odd occasion when the holiday falls upon a non-working day, it may be held to be slightly to the advantage of the six-day worker and, on the whole, the thing balances out, if we provide that whether the holiday falls upon a working or non-working day payment will be made in respect of it. I do not say it is mathematically correct or a perfect arrangement, but it is at least a clear arrangement and, on the whole, not an inequitable arrangement. In any event, it gets over the immense difficulty which is created by the fact that workers are employed for less than six days a week by reason of slackness of work and, as in the case of the railway shopmen, these workers might be losing all the holidays in the year by reason of the fact that the day upon which they do not work, due to slackness, may be a Monday. In the case of the railway shopmen it is a Monday, and I do not see any way of meeting their case other than by the comparatively simple arrangement of making the same provision for all classes of workers.
The Minister has not answered the point as to the full day's pay. Is this only to apply in lieu of a bank holiday?
It applies in respect of bank holiday payment. It applies also in respect of cesser payment, that is, payment to a worker in lieu of holidays, not payment for holidays. As the Deputy knows, after six months' work, a worker is entitled to payment for three days—and he is entitled to get three full days' pay, as defined here. We are making that clear by another amendment in the Bill.
In the case of the annual leave, however, that is determined on the basis of his week's pay, not so many full days' pay.
But, as far as my knowledge goes, the cesser payment was always considered to be a sixth of a week's work. I should like to submit to the Minister that he is in introducing a new principle. I suggest that he can look into the matter between now and the next Stage, and I think he will find that has been the practice.
If it were the practice, I do not know that it was legal. I think that, clearly, the intention should be to provide a day's pay, which is the payment a worker would get on a normal working day.
Yes, but very often a worker works longer in order to make up for the short hours on Saturday.
In the case of a six-day week worker it is less than a day's pay.
I suggest that that has been the practice, and I do not see why the Minister should alter the existing practice. He can look into it and see whether or not my information is correct.
The Deputy may say that it is the existing practice in certain cases, but I am by no means clear that it is the existing law.
I take it that the effect will be that, in the event of a five-day worker ceasing work after ten months, he will receive the same.
Such worker will get five full days' pay.
That is the intention?
Yes.
Amendment No. 3 agreed to.
I move amendment No. 4:—
In page 5, section 4 (2), lines 45 and 49, to delete the word "non-domestic".
This gives effect to Deputy Norton's proposal on the Committee Stage that the sub-section should apply equally to domestic and non-domestic workers. I do not think there is any reason why it should not apply to both classes.
Amendment No. 4 agreed to.
I move amendment No. 5:—
In page 6, line 29, Section 5 (2), to delete the word "business" and substitute the word "ownership."
That is a mere verbal change which is considered desirable for legal reasons.
Amendment agreed to.
I move amendment No. 6:—
In page 6, Section 5 (2), to delete lines 37 to 41 inclusive, and substitute the following:—
"(ii) if such worker has been allowed before such transfer annual leave or, in case such worker is a domestic worker, annual leave or semi-annual leave during such employment year, such annual leave or semi-annual leave shall, for the purposes of this Act, be deemed to have been allowed by the new employer."
The sub-section here deals with the case where the ownership of a business is transferred. Under sub-section (2), paragraph (b), sub-paragraph (ii) the new owner would be held liable for any failure of the former owner to comply with the public holiday provisions of the Act. This is considered an unfair arrangement, as the new owner might conceivably be liable to prosecution for what another person failed to do. It might be impracticable also to comply with the requirements of the Act in regard to the grant of days in lieu of public holidays. Consequently, the clause is being amended to ensure that it will apply only to annual or semi-annual leave.
Amendment agreed to.
The following four amendments, Nos. 7, 8, 9 and 10, I think, can be taken together, as they deal with the same point, and accordingly I move amendments Nos. 7, 8, 9 and 10:—
In page 6, Section 7 (1), line 48, to delete the words, "Subject to the provisions of this section".
In page 6, line 52, to insert at the end of the Section 7 (1) the words, "and in this Act the expression ‘public holiday' when used in relation to an industrial worker shall be construed accordingly".
In page 7, lines 1 to 25 inclusive, section 7, to delete sub-sections (2) to (5).
In page 7, lines 44 to 50, to delete Section 8 (3).
As I say, these four amendments might be taken together. They are the principal amendments giving effect to the proposal that a worker shall be paid for a public holiday even if it falls on a non-working day. The purpose of the amendments is to take out all the provisions which set out that public holidays falling on non-working days are not to be regarded as public holidays at all and makes the consequent verbal alterations in Section 7 (1). In future there will be only one sub-section in Section 7, instead of five.
Amendments Nos. 7, 8, 9 and 10 agreed to.
I move amendment No. 10a:—
In page 8, Section 8 (4), between lines 15 and 16, to insert the following:—
For the purposes of this sub-section each of the following days shall be a Church holiday, that is to say:—
(i) the 1st day of January, except when it falls on a Sunday,
(ii) the 6th day of January, except when it falls on a Sunday,
(iii) Ascension Thursday,
(iv) the Feast of Corpus Christi,
(v) the 29th day of June, except when it falls on a Sunday,
(vi) the 15th day of August, except when it falls on a Sunday,
(vii) the 8th day of December, except when it falls on a Sunday.
This is the sub-section dealing with the substitution of Church holidays.
I take it that the question of the calendar year has gone now under this amendment—that is that the following January can be substituted as it was before?
Yes.
Amendment No. 10a agreed to.
I move amendment No. 10b:—
In page 8, before Section 8 (5), to insert the following new sub-section:—
(5) A railway company which employs any person who is a non-domestic worker and is not an industrial worker may also substitute for Easter Monday the previous Good Friday by giving to such person not less than fourteen days before such Good Friday notice of its intention to effect such substitution and whenever any such notice is given such Good Friday shall in respect of such person be a public holiday for the purposes of this Act instead of such Easter Monday.
This is an amendment designed to meet the position of the railway companies where it has been the practice under agreements between railway companies and their employees to allow the substitution of Good Friday for Easter Monday. Under existing agreements, railway employees are entitled to two public holidays, Easter Monday being one of them, but this provides for the substitution of Good Friday. In fact, we are adding another holiday, to wit, Good Friday, so that the companies can continue the practice of substituting Good Friday for Easter Monday where desired.
You mean that a railway company can get a worker to work on Easter Monday if he gets Good Friday also.
Yes. Alternatively, he would have to get the 6th January. The Bill permits a Church holiday to be substituted for a public holiday. It is considered desirable not to change the existing arrangements in connection with railway companies. Alternatively the next holiday would be the 6th January.
Amendment No. 10b agreed to.
I move amendment No. 10c:—
In page 8, to delete Section 8 (5).
This is a verbal change.
Amendment No. 10c agreed to.
I move amendment No. 10d:—
In page 8, line 28, Section 8 (6), before the word "of" to insert the following " or in sub-section (5) "
That is also a verbal change.
Amendment agreed to.
I move amendment No. 11:—
In page 8, Section 9 (1), to delete lines 44 to 49 inclusive, and substitute the following:—
(c) either—
(i) 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, or
(ii) such public holiday falls on a non-working day and such worker does not work for such person on such public holiday,
such person shall, subject however to the provisions of sub-section (7) of this section, pay to such worker in respect of such public holiday a sum equivalent to a full day's pay.
The whole of sub-section (1) of Section 9 deals with the case of a non-domestic worker who does not work on a public holiday. It provides that if the worker has the necessary qualifications, that is, 150 hours work during the preceding five weeks, he will be paid the equivalent of a full day's pay for that day. The worker will get this pay even if the public holiday falls on a non-working day.
Amendment agreed to.
I move amendment No. 12:—
In page 9, Section 9 (2), to delete lines 10 to 48 inclusive, and substitute the following:—
(d) such worker has not received in respect of such public holiday a full day's pay increased by 25 per cent.,
the following provisions shall, subject however to the provisions of sub-section (7) of this section, have effect, that is to say:—
(e) if such worker does not cease to be in the employment of such person before the expiration of one month after such public holiday, then—
(i) such person shall allow to such worker a whole holiday on a working day before such expiration and shall, if he so allows such whole holiday, pay to such worker in respect thereof a sum equivalent to a full 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 in respect of such public holiday a sum equivalent to a full day's pay, but proceedings for such offence or to recover such sum shall not be instituted until the expiration of the employment year of such worker within which such public holiday falls, or, in case such worker has been allowed annual leave, the expiration of such annual leave, 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 month and has not been allowed a whole holiday on such working day between such public holiday and such cesser and been paid in respect of such whole holiday a sum equivalent to a full day's pay, such person shall upon such cesser pay to such worker, in addition to any wages then due him, a sum equivalent to a full day's pay.
Sub-section 9 deals with the case of a non-domestic worker who has the necessary qualifications for public holiday privileges but who works on such a day. It provides that if the worker has not received, in respect of that public holiday, a full day's pay increased by 25 per cent., he will get a day in lieu within a month on a working day with a full day's pay. The wording of the first part of the old clause (e) is altered because some doubt existed as to whether the provision would apply if the worker remained in the employment for longer than a month. The only material alteration in the whole of the new clause (e) is in sub-clause (ii). Deputy Norton argued on the Committee Stage that postponing the proceedings until the end of a worker's employment year was too long. There is something to be said for his point of view, and the new amendment now provides that proceedings can be taken after the worker had got his annual leave if he does not get the day or days in lieu of public holidays. Clause (f) is the same as the old clause (f) except that the draftsman now uses the expression "full day's pay" instead of "one day's pay." The clause grants such payment to a worker whose employment ceases within a month of a public holiday upon which he has worked.
Amendment agreed to.
I move amendment No. 13:—
In page 9, section 9 (3), to delete lines 57 and 58 and substitute the words, "such person shall upon such termination, but subject however to the provisions of sub-section (7) of this section, pay to such worker, in addition to any wages then due him, a sum equivalent to a full days' pay."
This sub-section, that is to say, sub-section (3), provides for the payment of a worker who has done 150 hours' work in five weeks preceding a public holiday, but whose services are terminated before that holiday. There is no material change in the sub-section as it stands, but the amendment, by virtue of the reference to sub-section (7), safeguards the employer if he has arranged to tack on days to annual leave in lieu of public holidays.
Amendment agreed to.
I move amendment No. 14:—
In page 10, section 9 (4), to delete lines 15 and 16 and substitute the words, "such person shall upon such termination, but subject however to the provisions of sub-section (7) of this section, pay to this worker, in addition to any wages then due him, a sum equivalent to a full day's pay".
The amendment proposed corresponds exactly to amendment No. 13, and applies in the case where a Church holiday is substituted for a public holiday.
Amendment agreed to.
I move amendment No. 15:—
In page 10, Section 9 (4), to delete in lines 22 and 26 the words, "and is not a non-working day".
Under the sub-section as it stands no payment need be made to a worker if his employment ceases between the date of a public holiday falling on a non-working day and a substituted Church holiday, for the reason that a public holiday falling on a non-working day does not count as a public holiday. Now throughout the Bill a public holiday counts even if it does fall on a non-working day. Therefore, to be consistent, this amendment provides that a worker shall be paid if his employment terminates between a public holiday—even though it falls on a non-working day—and a substituted Church holiday.
You are putting a substituted Church holiday on the same basis as a public holiday?
Yes.
Amendment agreed to.
I move amendment No. 16:—
In page 10, Section 9 (6), line 40, to insert after the word "who" the words "are industrial workers and".
On the Committee Stage the lower working qualification for annual leave in respect of young persons under 18 years of age was confined to those who are industrial workers. It follows that similar provisions should be made here in respect of public holiday qualification, and that is the purpose of the amendment.
Amendment agreed to.
I move amendment No. 17:—
In page 10, Section 9 (7), line 48, to insert after the word "employer" the words "on a working day or working days".
This amendment ensures that where days are tacked on to annual leave in lieu of public holidays they shall be given on working days.
Amendment agreed to.
I move amendment No. 18:—
In page 10, Section 9 (7), lines 54 and 55, to delete the words "a day's pay in respect of each of six of such extra holidays neither" and substitute the words "in respect of each of six of such extra holidays, a sum equivalent to a full day's pay, neither sub-section (1) nor".
This is a drafting amendment. Instead of providing expressly that a man shall get a day's pay, he will now get the equivalent of a full day's pay.
Amendment agreed to.
I move amendment No. 19:—
In page 11, Section 9 (7), lines 2 and 3, to delete the words "a day's pay in respect of each day of such extra holidays" and substitute the words "in respect of each day of the extra holidays so allowed, a sum equivalent to a full day's pay".
This amendment is the same as the previous one.
Amendment agreed to.
I move amendment No. 20:—
In page 11, Section 9 (7), to delete the words "a whole holiday on" where they occur in lines 8, 13, 18, 23, and 28, and substitute the words "his rights in respect of".
This is also a drafting amendment. The old sub-section gave extra holidays in lieu of the holidays which should have been given on public holidays, but the Bill gives a worker other rights, that is, rights to payment for public holidays on the cesser of his employment. Consequently, throughout clause (b) the word "rights" is inserted.
Amendment agreed to.
I move amendment No. 21:—
In page 11, Section 9 (7), line 32, to insert after the word "neither" the following "sub-section (1) nor".
This is purely a drafting amendment.
Amendment agreed to.
I move amendment No. 22:—
In page 11, before Section 9 (8), to insert the following new sub-section:—
(8) In this section the expression "working day" means in relation to a worker a day which—
(a) is a week-day, and
(b) is not—
(i) a public holiday, or
(ii) a day within which any period of twenty-four consecutive hours of rest required to be allowed to such worker under any other enactment falls, or
(iii) a non-working day, or
(iv) a day on which such worker under his contract of service normally works for less than a full day.
This is a new sub-section, and defines the expression "working day". This definition appeared in the Bill as passed on Committee, but is now being amended in one respect, namely, that a short day is not to be reckoned as a working day for the day or days in lieu of public holidays. It means, in effect, that if a worker gets a day in lieu of a public holiday he must get it on a whole day. It will be remembered that the Bill is providing for a whole day's pay for public holidays and day in lieu, and the proposal here is that it shall also be a whole day off.
There is, I think, provision that an extra week's holiday may be given in lieu of the public holidays. Does this cut across it? Supposing the worker concerned is a five-day worker, and that he got the following week as a holiday. That will actually be only five working days under this amendment. Does that mean that a day out of the following week will have to be given to make up the six days?
I will look into that matter.
There is a further point about the six full working days. After all, you cannot have a worker contending that Saturday must be a dies non?
Oh, no.
Is the short day a working day under this?
No—that is for the purpose of days in lieu of public holidays.
Then, how are you to give six days? Even if he is a six-day worker, you cannot give six days in succession without breaking into another week.
Take the first Monday in August, where it is the practice to give the first Monday in August, and a week. Are you going to leave it that Saturday cannot be counted in that period? That would be absurd.
There may be some need for considering a case where all the public holidays are tacked on to annual leave.
Or where there is a cycle running to a week, you must allow one of those days to be a Saturday. I can quite understand your desire not to let the employer say that the odd day is always going to be a Saturday, but where there is a cycle I think you will have to say that Saturday is not excepted.
I will look into that point.
If a man's annual week's holiday falls on a bank holiday week, he gets a day extra?
That is provided for.
Does this definition affect a week? I do not at the moment know if there is a definition of a week's holiday. Does it have to constitute a specified number of working days?
We are dealing now with days in lieu of public holidays.
I know, but a man has to get a week's holiday?
This does not affect it. A week's holiday is a week anyway.
Amendment agreed to.
I move amendment No. 23, Section 10:—
In page 11, before sub-section 10 (2), to insert the following new sub-section:—
"(2) Where a non-domestic worker is allowed annual leave the employer of such worker shall pay to such worker in respect of such annual leave—
(a) in case the ordinary remuneration of such worker is wholly calculated by reference to time, a sum equivalent to the amount (exclusive of pay for overtime) which such worker received from such employer as salary or wages in respect of the work preceding such annual leave during which such worker worked the normal number of hours on the normal maximum number of days under his contract of service, and
(b) in any other case, a sum equivalent to the amount of his average weekly earnings (exclusive of pay for overtime) for the six months immediately preceding such annual leave if he has been so long employed by such employer but if not, then for any less period during which he has been employed by such employer".
Under the Bill as it stands a special section, that is Section 13, sets out the payments to be made in respect of annual leave and semi-annual leave of all classes of workers. For convenience, this section is now being deleted, and the provision relating to non-domestic workers is being inserted in Section 10, which section deals with the annual leave of such workers. The actual provisions of this amendment differ in no way from the original provisions.
I suggest that the first line of the amendment on page 5 should read "in respect of the week" and not "in respect of the work".
It is a printer's error. I will see that it is corrected.
Amendment, as amended, agreed.
I move amendment No. 24:—
In page 12, Section 10 (2), lines 5 and 9, to delete the words "one day's pay" where they occur, and in lines 8 and 12 to insert after the word "hours" in each case the words "a sum equivalent to a full day's pay".
This is purely verbal.
Question put and agreed to.
Amendment No. 25 not moved.
I move amendment No. 26:—
In page 12, Section 10 (5), line 43, to insert after the word "shall" the following, "if such worker does not work thereon for such employer".
Question put and agreed to.
I move amendments Nos. 27, 28 and 29:—
In page 13, Section 10 (8), to delete lines 30 and 31 and substitute the following, "sub-section (2) of this section, he would have".
In page 14, Section 12 (1), line 7, to delete the word "section" and substitute the words "Act also".
In page 14, Section 12 (2), line 9, to delete the word "section" and substitute the word "Act".
Question put and agreed to.
I move amendment No. 30:—
In page 14, before Section 12 (3), to insert the following new sub-section:—
(3) Where a domestic worker is allowed annual leave or semi-annual leave, the employer of such worker shall pay to such worker in respect of such annual leave or semi-annual leave a sum equivalent to the amount which such worker received from such employer as salary or wages in respect of—
(a) in case such worker is allowed annual leave, the two consecutive weeks preceding such annual leave during which such worker worked the normal number of hours on the maximum number of days under his contract of service,
(b) in case such worker is allowed semi-annual leave, the week preceding such semi-annual leave during which such worker worked the normal number of hours on the maximum number of days under such contract.
This amendment corresponds to amendment No. 23. As indicated in connection with amendment No. 36, the section relating to payment for leave in Section 13 is now being related to its appropriate sections. This one provides for payment for the leave of domestic workers.
Question put and agreed to.
I move amendment No. 31:—
In page 14, Section 12 (3), to delete lines 19 to 22 inclusive, and substitute the following, "to allow to such worker annual leave or semi-annual leave during a particular period, and".
This is a drafting amendment, and relates to the sub-section which permits employers to give double wages to domestic workers in lieu of annual leave. It merely clarifies the position that domestic workers are entitled to annual or semi-annual leave, but not to public holidays.
Question put and agreed to.
I move amendment No. 32:—
In page 14, Section 12, lines 38 and 39 and lines 56 and 57, in page 15, lines 9 and 10, lines 23, 24 and 25, and in page 16, lines 25 and 26, to delete the words "the provisions of this Act relating to payments in respect of annual leave and semi-annual leave," where they so occur in the said section, and substitute the words "sub-section (3) of this section,".
Question put and agreed to.
I move amendment No. 33:—
In page 15, Section 12 (7), line 44, to delete the word "non-domestic" and substitute the word "domestic"
Question put and agreed to.
I move amendment No. 34:—
In page 15, Section 12 (7), to delete all words from the word "for", line 46, to the word "deemed", line 47, and substitute the following, "if such worker does not work thereon for such employer, be deemed for the purposes of this section".
Question put and agreed to.
I move amendment No. 35:—
In page 16, before Section 13, to insert a new section as follows:—
Whenever a person allows a domestic worker a whole holiday with pay on any public holiday such person shall be entitled to reduce by one the number of whole holidays annual leave or semi-annual leave to be allowed to such worker or if such worker ceases to be in the employment of such person before being allowed such annual leave or semi-annual leave to reduce by one the number of days' pay due to such worker in lieu of annual leave or semi-annual leave.
This is designed to give greater flexibility. There are certain places where, instead of being busy on a holiday, they may be slack, even in private houses, and the idea is that where there is a bank holiday, and the conditions are favourable, to allow that holiday to the worker, and to deduct it from the extra annual leave given by reason of not getting the bank holiday. I suggest that in a number of cases this proposal would be appreciated by workers, where it could be given with the consent of both parties.
I am afraid I could not agree to accept the amendment for a number of reasons, including the question of enforcement. It has been decided not to take cognisance of individual day's leave granted to a domestic worker. The minimum time in respect of which a domestic worker could make any claim is a week, and any suggestion of making a deduction of odd days from that would prove most objectionable, and would complicate the Bill. Moreover, if the amendment were accepted the whole idea of semi-annual leave might go by the board, as it could happen that a domestic worker would have as many as five public holidays in a half year.
I think the Minister is correct in not accepting the amendment. At the seaside domestic workers would be penalised.
I suggest that it could be done only by mutual arrangement. I was certainly not thinking of a worker being allowed to run out of a place at the busiest season, or of an employer deciding to put a worker out if it suited him. My idea was that on public holidays, when they are slack, business houses could close down the same as the surrounding houses. This is really forcing people, more or less, to keep open when there is no trade to be done. The Minister referred to odd days, but I had no idea of giving casual holidays. I referred to bank holidays.
I see the Deputy's point. It would be objectionable from many points of view, and would certainly make enforcement much more difficult, if such an arrangement were made. There is, of course, no suggestion of compelling business houses doing no business on public holidays to keep open, or to employ domestic workers. What we are proposing is that the day's leave granted to workers by the closing of shops will be deducted from the annual leave.
The Minister spoke about the enforcement of the Bill, but he has just passed something in relation to that. He may argue that this is not on all-fours, when it is really only an extension of the principle. As far as enforcement is concerned in regard to domestic workers, I suggest that that could only be done on exact information being given. It should be given when one party is dissatisfied, or considers that he has been done out of his rights.
The position we will be in is that people are employed in a temporary capacity during the tourist season, and they would find that they would be penalised very much.
How do you mean penalised?
I am not in a position to answer that.
Amendment put and declared lost.
I move amendment No. 36:—
In page 16, lines 46 to 65, and in page 17, lines 1 to 10, to delete Section 13.
This is the section that provides for payment on annual and semi-annual leave. It is now deleted, as its provisions have been related directly to the section granting leave to domestic and non-domestic workers respectively.
Question put and agreed to.
I move amendment No. 37:—
In page 17, Section 14 (1), to delete lines 12 to 19 inclusive, and substitute the following:—
"(a) a worker is allowed by his employer annual leave or semi-annual leave, and
(b) such worker was, immediately before such annual leave or semi-annual leave, 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 annual leave or semi-annual leave, pay to such worker, in respect of any day falling within such annual leave or semi-annual leave during".
Section 14 relates to the accommodation payable to domestic workers in respect of board and lodgings. It is not intended that domestic workers who were allowed a free day on a public holiday by their employers would get the accommodation pay as well. Consequently such payment will be reserved for the annual and semi-annual leave.
Question put and agreed to.
I move amendment No. 38:—
In page 18, Section 17 (1), lines 31 and 32, to delete the words "if so required by the occupier of such house".
This amendment gives effect to a suggestion made by Deputy Dillon on the Committee Stage, that an inspector calling at a private dwelling house must present his certificate to the employer.
Question put and agreed to.
I move amendment No. 39:—
In page 18, before Section 18, to insert a new section as follows:—
(1) Where a contract for the execution of any work was entered into before the commencement of this Act and is at such commencement not fully carried out, and the person liable under such contract to execute such work claims either or both of the following things, that is to say:—
(a) that, by reason of the obligations imposed on employers by this Act, a limitation of time contained in such contract for the doing of any particular thing has become unreasonable and should be extended, or
(b) that, by reason of the said obligations, any particular price or other payment fixed by such contract has become unreasonable and should be increased,
then and in every such case, such claim shall, in default of agreement between the parties concerned, be referred, on the demand of any such party, to arbitration under this section.
(2) Where a claim is referred under this section to arbitration, the following provisions shall have effect, that is to say:—
(a) such arbitration shall be heard and determined by one arbitrator who, in default of agreement between the parties concerned, shall be appointed by the Minister on the application of any such party;
(b) in the case of a claim for the extension of a limitation of time, the arbitrator shall determine whether such extension should or should not be made and (if he determines that such extension should be made) the amount of such extension;
(c) in the case of a claim for the increase of a price or other payment, the arbitrator shall determine whether such increase should or should not be made and (if he determines that such increase should be made) the amount of such increase;
(d) the arbitrator shall be paid such fee for acting as arbitrator as shall, in default of agreement, be fixed by the Minister, and such fee and all other general costs and expenses of the arbitration shall be paid by such one or more of the parties to the arbitration and, if by more than one of such parties, in such proportions as the arbitrator shall direct;
(e) the arbitrator shall determine how the costs and expenses incurred by each of the parties to the arbitration of or incidental to appearing and being heard thereat shall be borne;
(f) if the arbitrator determines that a limitation of time should be extended or that a price should be increased, the arbitrator shall amend the contract which is the subject of the arbitration in such manner as he shall think proper in order to give effect to such determination;
(g) the determination of the arbitrator shall be final and conclusive and shall be binding on all parties concerned.
This gives effect to Deputy Dockrell's proposal on the Committee Stage in relation to the variation of existing contracts.
Amendment agreed to.
I move amendment No. 40:—
In page 19, before Section 20, to insert a new section as follows:—
Where a person is charged with any offence under any section of this Act, it shall be a good defence to such charge for such person to prove to the satisfaction of the Court before which such offence is tried that the alleged contravention of such section was rendered necessary or reasonably proper by the actual occurrence or the threat or reasonable anticipation of fire, flood, storm, violence, a breakdown of plant or machinery, or any other emergency.
This is in conformity with similar provision in other Acts, and I take it the Minister is sympathetic towards it.
I am prepared to accept the amendment.
Amendment agreed to.
Question proposed: "That the Bill, as amended, be received for final consideration."
I should like to refer back to Section 8——
I was going to propose that we might take the Report Stage on another day. I should like to have an opportunity, if it can be arranged, to have the Bill printed with these amendments, and to have an opportunity of considering it in that form before finally disposing of it on Report, because it may be that further amendment will be found necessary for the purpose of clarification and to avoid ambiguity. In the case of legislation of this kind, we have always found it desirable to have another look at it. If we dispose of the Report Stage now, the opportunity for amendment, in this House at any rate, will have passed. If we now deal with the Recommital Stage of the Bill and the amendments, we could leave the Report Stage over for another day.
That will not prevent discussion of details on the Report Stage?
No; it gives further opportunity for amendment if the necessity should arise.
On Report, discussion will only arise on amendments before the House?
Exactly. It is not proposed to recommit the Bill again.
And discussion can be raised on particular points on Report?
Only on amendments. We are dealing with amendments only now.
I agree with the Minister that there might be some point arising on Report which a Deputy would want to discuss or have clarified, and I think it would be a pity for the Minister to say that we cannot discuss an individual item.
I am not responsible for the rules of the House, and the rules of the House say that on Report amendments may be moved, but discussion is limited to the amendments. It would be out of order to discuss a section to which no amendment was proposed, but we can discuss any amendment, and it is open to Deputies, as well as to the Minister, to move amendments on that Stage.
My point was in connection with sub-section (4) of section 8. I raised the question with the Minister as to whether his amendment did away with the question of the calendar year, and he said it did. On examining the matter further, however, I do not think it does. The point is, that under the amendment it is possible to substitute the 1st January for another holiday, but it must be, according to this, in the same calendar year. Supposing it was desired to substitute 1st January for St. Stephen's Day: under this it cannot be done, because it is not in the same calendar year. I do not think the expression "calendar year" appears in the Conditions of Employment Act.
I will look into the point. I think there is a reason for keeping "calendar year" there, but I should like to examine it further before discussing it with the Deputy.
Report Stage ordered for Wednesday, 30th November.
The Dáil adjourned at 9.45 p.m. until 3 o'clock on Wednesday, 30th November.