Dáil Éireann debate -
Thursday, 9 Feb 1939

Vol. 74 No. 2

Holidays (Employees) Bill, 1938—From the Seanad (in Committee).

Minister for Industry and Commerce (Mr. Lemass)

I am asking the Committee to agree with the Seanad in all the amendments inserted by the Seanad in the Holidays (Employees) Bill, 1938. Accordingly, I move that the Committee agree with the Seanad in amendment No. 1:—

Section 2. In sub-section (2), page 4, line 26, the word "owner" deleted and the word "occupier" substituted therefor.

This amendment effects a verbal change. The term "owner" of agricultural land was used in the definition section of the Bill, and the question was raised as to whether or not there might be some doubt as to the applicability of the measure in a case where land was occupied and used by some person other than the owner. In order to avoid that possibility, we have substituted the word "occupier" for "owner."

Mr. Dillon

The section which it is proposed to amend here is the section which defines persons who are to be included in the category of worker. I want to suggest to the Minister that some steps should be taken further to clarify this definition than is attempted in the amendment now before us.

Mr. Lemass

I submit, Sir, that we can only discuss the amendment.

Mr. Dillon

I know, but this is the amendment. This amendment is a clarifying amendment.

An Ceann Comhairle

The question before the House is whether the word "owner" is to be deleted and the word "occupier" substituted therefor.

Mr. Dillon

Precisely, Sir, and what the Minister is trying to do is to clarify, in the body of the Bill, the definitions of the Bill. I want to make the submission that this amendment is not sufficient for the purpose for which it is intended because, no matter how far you go in amending or developing this defining section, cases are going to arise continually, in practice, where the matter of definition is impossible for the average citizen, with the result that the Department finds that the most convenient way of doing what is attempted in this amendment is to prosecute someone, bring that person before the court, and get the district justice to make the definition, which may result in a conviction of the citizen.

An Ceann Comhairle

The question of definition does not arise here. Deputies are confined to accepting or rejecting the amendment now before the House.

Mr. Dillon

I am arguing, Sir, that the amendment is insufficient for the purpose for which it is intended.

An Ceann Comhairle

The Deputy has not tabled an amendment.

Mr. Dillon

I did not know there was such a procedure, Sir. I understood——

An Ceann Comhairle

The procedure with regard to amendments sent from the Seanad is that the Dáil may agree to, disagree with, or amend such amendments. Amendments tabled must, of course, arise out of the amendments made by the Seanad.

Mr. Dillon

I am proposing an administrative amendment. I am proposing a plan whereunder the amendment before the House may be made to work better, and that plan is that there should be established by the Minister in his Department some kind of bureau in connection with this matter.

An Ceann Comhairle

The Deputy may not at this stage debate the establishment of a bureau.

Mr. Dillon

I am proposing that this change should be made.

An Ceann Comhairle

Then, I may take it that the Deputy is opposing the amendment?

Mr. Dillon

Yes, but may I give reasons for my position? My reasons are that this amendment will not achieve the purpose for which it is intended unless it be accompanied by something which, apparently, the scope of the Bill does not permit. It could not achieve its purpose unless it were supported by some kind of bureau in the Minister's Department which would be authorised to apply this definition in individual cases. Individual cases may arise in which a person does not know whether the terms contained in this amendment refer to a particular individual in his peculiar circumstances or not. I object to the Department saying to a citizen who finds himself in that position: "You must go on, and if we think you are wrong we will prosecute you and let the district justice decide the case." My objection is that that might result in a citizen, who did not wish to break the law and who had never broken the law, being brought before the courts and convicted of a breach of the law, really for the purpose of clarifying this amendment for the benefit of the public at large. It does not much matter what ultimate meaning is attached to documents of this kind, provided that there is an ultimate appeal in the event of a citizen being at variance with the Minister, but what ought to exist is some tribunal to which the citizens can go and say: "Tell us what your view is. If that does not appear to be a hopeless intrusion on the rights of the individual, we are prepared to conform to the Departmental view of the law; if we do not agree with it, we want to take your decision as to the true meaning of that section to a judicial tribunal, by way of a case stated, and in that way get a decision of the courts as to the true meaning. What we do not want is that the matter should be decided by way of prosecution and conviction, if we, bona fide, have made a mistake.”

Mr. Lemass

I submit, Sir, that this has nothing to do with the motion before the House.

Mr. Dillon

On the contrary, I submit that it has. Let us suppose that I am an owner, and that I do not know whether that means an occupier or not. I say to myself: "If it means occupier, then I know that I cannot do such-and-such a thing, but if it does not mean that, then I proceed to do certain things on that assumption," and then I am prosecuted by the Department because they say that it does mean occupier. The result is that I may be convicted, but I never was in a position to find out what the word did mean or include. I want the Minister to permit me to say: "Does that include occupier?" If he says "yes," then I can say: "Well, let us have a case stated before the district justice," and then I can go to the court, but I do not want to go there as a defendant so that, if the case goes against me, I may be convicted. I am not raising this matter in any controversial spirit. I am putting it to the Minister that this would be a great convenience to every citizen of the State and would avoid the extremely unpleasant experience of being convicted for a breach of the law which I did not intend to commit.

An Ceann Comhairle

The Deputy had an opportunity, when this Bill was going through the House, of suggesting the setting up of the bureau which he now desires to see established. It is too late now to advocate such change, as the Minister has no power under the Bill to set up such a bureau.

Mr. Dillon

I submit, Sir, that the Minister has power, administratively, to declare what is the meaning of an Act. He can appoint an officer and then allow the citizen who disagrees to move in the courts for a declaration that the Department is wrong. That is all I want, but apparently it cannot be given to me.

Question put and agreed to.

Mr. Lemass

I move that the Committee agree with the Seanad in amendment No. 2:—

Section 2. In sub-section (2), page 4—

(a) in line 43, after the word "farming" the words "poultry farming, market gardening," inserted;

(b) in line 45, the words "a market garden or" deleted.

During the discussion on the Bill in the Seanad a question arose as to whether workers employed either in a poultry farm or in a market garden should or should not be regarded as "agricultural workers" for the purposes of the Bill. As the Bill left the Dáil such workers were outside the definition of "agricultural workers" and consequently were included within the scope of the measure. This amendment inserted in the Seanad excludes these workers from the scope of the measure by including them within the definition of "agricultural workers." As we framed the measure on the basis of dealing only with those workers whose wages are not regulated under the Agricultural Wages Act, I think the amendment is one that should be accepted. It is in accordance with the general scheme of the Bill. Besides there is no doubt that these workers are within the scope of agricultural workers in the Agricultural Wages Act.

Mr. Dillon

I put it again to the Minister that this amendment does not sufficiently clarify the situation and that still it may be necessary to clear the mind on certain facts which leave unanswered innumerable queries that may arise and as to whether they come within the meaning of sub-section (3) of Section 2. I think a much more satisfactory way would be to appoint an officer of the Minister's Department who would say whether an individual work or job is comprised in this Bill or to leave it open to the individual who may be prosecuted to apply to the court for a declaration that the Minister is wrong. Why the Minister does not do that instead of providing sheaves of amendments to meet the case I cannot imagine.

Mr. Lemass

Because this has nothing to do with any other amendment.

Mr. Dillon

It has, but the Minister has been too pigheaded. This amendment will clarify nothing.

Mr. Lemass

It clarifies everything.

Mr. Dillon

No. My point is that you could go on talking and have 40 pages of amendments passed and in the end find you are in doubt about certain workers. The simplest thing would be to set up an individual who would give his decision and if necessary let the court pass its judgment on that. Then if the Minister finds the Act is not working let him bring in amending legislation.

An Ceann Comhairle

The Deputy had an opportunity of bringing in amendments on the other stages.

Mr. Dillon

I am mentioning it now because I want to protest against this sort of amendment.

Question put and agreed to.

Mr. Lemass

I move that the Committee agree with the Seanad in amendment No. 3:—

Section 5. In sub-section (2), page 6, line 33, after the word "section" but within the brackets the following words inserted: "but excluding Section 9 (which relates to rights of non-domestic workers in respect of public holidays) of this Act in respect of any public holidays previous to such transfer."

The sub-section deals with the case of a business transferred from one owner to another and it states where the worker is deemed after the transfer to be employed by the new owner, he will be deemed to be in the employment of the new owner as and from the beginning of such employment there. The purpose of the amendment is to exclude the new owner's carried-over liability in respect of the transferred worker in relation to annual or semi-annual leave. The new employer will not be liable in respect of public holidays which occurred during that part of the year during which the worker was in the employment of the previous owner. I agreed to the amendment because it does not seem equitable that the new owner should be liable for what the former owner had done and he certainly should not be liable to prosecution in such a case.

Question put and agreed to.

Mr. Lemass

I move that the Committee agree with the Seanad in amendments Nos. 4, 5 and 6 which stand together:—

4. Section 9. In sub-section (7), page 10, line 29, after the word "days" the words "or short days" inserted.

5. Section 9. In sub-section (8), page 11, line 15, the words "In this section" deleted and the following words substituted therefor:—

"In this section—

the expression `short day' means in relation to a worker a day on which such worker under his contract of service normally works for less than a full day";

6. Section 9. In sub-section (8), page 11, lines 24 and 25 deleted and the following substituted therefor:—

"(iv) a short day."

The three have only one purpose. It was discovered under sub-section (7) of Section 9 that the employer might not be able to give these consecutive days in lieu of public holidays if a short day occurred in the worker's week. A working day is defined as a day on which the worker has worked not less than a full day.

Mr. Hickey

In the case of a man who has worked a five-day week will the fact that the bank holiday falls on a non-working day mean that he is not to be paid?

Mr. Lemass

That has nothing to do with this case. It is to meet a case where instead of giving six working holidays, the employer decides to give six consecutive days' leave. As the Bill stands he could not do that, because "a short day" would not be a working day as a working day is defined. This is to remedy that defect.

Question put and agreed to.

Mr. Lemass

I move that the Committee agree with the Seanad in amendment No. 7:—

Section 10. In sub-section (7), page 12, lines 58 and 59, the words "In the case of a non-domestic worker Sunday shall be reckoned as a day of annual leave, but" deleted.

This is a drafting amendment. Under the Bill it was provided that Sunday shall be reckoned as a day of annual leave. The deletion of these words means that Sunday would not be reckoned as a day of annual leave. In a more recent examination of the Bill it was found that sub-section (6) is sufficient to make Sunday a day of annual leave; consequently, Sunday is a day of annual leave without specifically mentioning the matter.

Mr. Dillon

Does that mean that if you are required by the Act to give a man seven days' leave and you let him go on Saturday night and take him back on a Sunday you are depriving him of the benefit——

Mr. Lemass

Sunday is included.

Mr. Dillon

Has that been made the standard in all these employment cases?

Mr. Lemass

We have repealed the holiday provisions of the 1936 Act. These are wiped out altogether. The Shops Act provides them annual leave on a somewhat different basis.

Question put and agreed to.

Mr. Lemass

I move that the Committee agree with the Seanad in amendment No. 8:—

Section 12. In sub-section (6), page 15, line 46, after the word "first" the words "half or such second" inserted.

Sub-section (6) of Section 12 deals with the case of domestic workers and their pay in lieu of holidays on the cessation of the employment. Under (c) of (6) you have provided for the case where the domestic worker leaves her employment at the end of the second half of the year having worked for less than 150 days in the first half of the year.

Question put and agreed to.

Mr. Lemass

I move that the Committee agree with the Seanad in amendment No. 9:—

Section 12. In sub-section (6), page 15, lines 51 and 53, the word "first" deleted where it occurs and the word "second" substituted therefor.

This deals with the same class of case as the previous amendment. It has the effect of relating the cesser pay payable to the domestic worker to the particular half year in which she qualified for semi-annual leave. It is only right that the cesser pay should be applicable to the second half.

Mr. Dillon

And every citizen of this State is supposed to know this Act backward.

Question put and agreed to.

Mr. Lemass

I move that the Committee agree with the Seanad in amendment No. 10 which reads:—

Section 12. Sub-section (9) deleted.

This is consequential on an earlier amendment.

Question put and agreed to.

Mr. Lemass

I move that the Committee agree with the Seanad in amendment No. 11:—

Section 17. In sub-section (1), page 19, line 10, the word "part" deleted and the word "party" substituted therefor.

That is a drafting amendment.

Question put and agreed to.

Agreement with amendments reported.

Question—"That the Dáil agree with the Committee"—put and agreed to.

Ordered: That the Seanad be notified accordingly.