I move amendment No. 1:—
Before Section 3 to insert a new section as follows:—
3.—(1) Section 3 of the Principal Act is hereby amended by the deletion therefrom of the words "or any vehicle from which" and the words "or vehicle" wherever the latter words occur.
(2) The Principal Act (except Part VI thereof) shall extend to any vehicle in respect of which the following conditions are complied with, namely—
(a) the vehicle is being used, for the time being, wholly or mainly for the purposes of retail trade or business carried on therefrom,
(b) the vehicle travels from place to place for the purposes of such retail trade or business,
(c) such retail trade or business does not consist wholly or mainly of the selling of any one or more of the following commodities, namely, bread, flour confectionery, milk and ice-cream,
as if the vehicle were a shop and as if the person by whom such retail trade or business is carried on were the proprietor of that shop, and for the purposes of such extension the expression "member of the staff" where it occurs in the Principal Act, shall, notwithstanding anything contained in Section 2 of this Act, be construed, in its application to the vehicle, as meaning a person who travels on the vehicle and is employed (as driver or otherwise) for the purposes of such retail trade or business.
The original Section 3 excluded bread-van drivers, milk roundsmen, and ice-cream vendors retrospectively from the operation of the Principal Act. Since the Bill was drafted, in fact on the morning of the day on which we discussed the Second Reading of the Bill here, the final judgment of the Supreme Court was announced in the case of Martin versus Galbraith, in which a bread-van driver claimed to come under this section of the Principal Act. That judgment has completely altered the position as regards bread-van drivers, milk roundsmen and ice-cream vendors, and also in regard to sales from travelling shops proper. The judgment declared that the definition of a member of the staff required the employee to be working within the shop or in the precincts of the shop, and that in the case of the bread-van driver, Martin, most of his sales were effected at the house doors of his customers and were therefore not effected within the precincts of the van, which was deemed to be a shop under Section 3 of the Principal Act. The court therefore declared that Martin was not a member of the staff of a shop and was not within the scope of the Principal Act. That decision will apply to similar cases in which retail sales from a vehicle are transacted at a distance therefrom. It is now no longer necessary to exclude bread-van drivers retrospectively from the Principal Act, and the intention of the Principal Act has been restored by the judgment. It it clear, however, that if the travelling shop proper is to be brought within the scope of this legislation, a special definition of “member of the staff” must be laid down for the employees of such travelling shops. The amendment is designed to remedy the position created by the Supreme Court judgment, and to retain travelling shops within the scope of the legislation, while excluding vehicles and their staffs which are used wholly or mainly for the sale of any one or more of the commodities: bread, flour, confectionery, milk and ice-cream.
The amendment deletes the former Section 3 of the Bill. Sub-section (1) deletes references to vehicles from Section 3 of the Principal Act, which will in future deem places from which a retail trade is carried on to be a shop, but will not refer to vehicles. Sub-section (2) extends the Principal Act, excluding Part VI, dealing with the health and comfort of workers, to any vehicle used for the time being wholly or mainly for the purpose of retail trade or business carried on therefrom, if the vehicle moves from place to place for the purpose of such retail trade, and if such retail trade does not consist wholly or mainly of the retail sale of one or more of the commodities: bread, flour confectionery, milk and ice-cream. The amendment excludes from the scope of the Principal Act the van used solely for delivery purposes and the van used mainly for delivery and partly for retail sales. It will exclude the bread-van, the milkman's van and the ice-cream vendor's vehicle, but will bring within its scope the travelling shop proper, unless any of the latter shops are engaged wholly or mainly in the retail sale of the commodities already mentioned.
Sub-section (2) also contains a revised definition of "member of the staff" in the case of the employees connected with travelling shops. In future, any person who travels on a vehicle as defined in this amendment, or is employed as a driver or otherwise for the purpose of the retail trade carried on, will be a member of the staff of the vehicle and, as such, will be within the scope of this Bill and the Principal Act. In view of the decision of the Supreme Court that bread-van drivers are outside the scope of the Principal Act, it is not necessary to retain sub-section (2) of Section 3 which provided that court proceedings instituted prior to the date of the introduction of the Bill by bread-van drivers would not be affected by the terms of the present Bill. For this reason, it is no longer considered necessary to retain sub-sections (3) and (4) of Section 3 of the Bill, and I do not now propose to claim the power by order to exclude other vehicles carrying on a retail trade from the provisions of the Principal Act.
