There are some amendments down to this Bill about which I have doubts. However, I am giving the Deputies who put down the amendments the benefit of the doubt.
Conditions of Employment Bill, 1944—Committee.
Section 1 agreed to.
SECTION 2.
I move amendment No. 1:—
Before sub-section (2) to insert the following new sub-section:—
(2) Sub-section (1) of Section 3 of the Principal Act is hereby amended by the addition to paragraph (e) of the following words, that is to say "including the operation of lighting and extinguishing streets lamps maintained by a local authority where such work is done by persons who are the whole-time employees of such local authority employed to perform such work."
The grounds on which I move this amendment were indicated on Second Reading. It appears to us that it was intended that certain categories of workers should be covered by the provisions of the original Act but that, for certain reasons, they were not brought within the framework of that Act. This is an attempt to remedy that omission. (Amendment read.) It is my submission that, inasmuch as the Principal Act specifically includes under the definition of “industrial work” the work performed by local authorities, it is invidious and unfair to this particular section of the employees of local authorities that they should be excluded from the benefits of the provisions of that Act. I think that advantage should be taken of the present occasion, when the original Act is being amended, to have them specifically included, and that will be effected if this amendment be adopted. In clause 3 of the Principal Act, where the forms of agricultural work are defined, it is laid down that work done for or in connection with a local authority is industrial work. In the actual interpretation of that Act, certain doubts have arisen as to the applicability of that section to the class of workers covered by this amendment —lamp-lighters. A similar question arose in regard to another section of workers, and was contested in the courts.
I cannot understand why this particular class—lamp-lighters—should not be brought within the scope of the Principal Act. The reason given by the Minister on Second Reading was that certain difficulties might arise in regard to the hours of work of these men. While that difficulty may present itself, it is merely, a drafting difficulty which is implicity in the task of drafting any Act which sets out to remove grievances of a complicated nature. Inasmuch as the Principal Act does distinguish between two main classes of workers— those on ordinary, daily work and those on shift work—and makes special provisions in the case of shift workers, I cannot see any reason why, if this amendment were accepted, the necessary consequential amendments in the Principal Act could not be drafted and included in the present Bill so as to permit of the inclusion of this class of workers—lamp-lighters— on a basis somewhat similar to that of shift workers. These consequential amendments would follow from the adoption of this amendment.
It will be agreed that the men who do the electric lighting of our city under the Electricity Supply Board are within the Act and this amendment merely affects those men engaged in lamp lighting. On occasions, they do material, industrial work. If a lamp has gone out and needs to be refurbished, these men, who are practical men, have to get to the inner workings of the lamp and apply their knowledge and technique to its correction. I should be glad if the Minister could see his way to include these men. They have long hours. They go out on different shifts but their work is in nowise different from that of the men engaged in connection with safety lamps in the street. These may have to go down at all hours of the night and correct them. That is done by electrical workers or men associated with electrical workers. Then we have the case of the gas workers. I do not think that you could argue that, where you have two different classes of workers providing the lighting service for the community, there should be discrimination. I do not think there would be any difficulty in drafting an amendment if the Minister appreciated the position.
I do not think that Deputy Larkin (Junior) was correct in saying that certain categories of workers, intended to be covered by the 1936 Act, were found, in the event, not to be covered, and that it is necessary to remedy that position. So far as I know, no category of workers intended to be covered by that Act is uncovered. The 1936 Act was intended to be one of a series. That fact is sometimes lost sight of. The Government accepted the position that it was responsible for imposing by law minimum conditions of employment in respect of all those who work for wages. It recognised, however, that the conditions of employment of various classes of workers required different treatment, that you could not have the same code of law for industrial workers as for shop workers, that you could not have the same code for shop workers and transport workers or for transport workers and domestic workers. The 1936 Act dealt with industrial workers. Subsequently, shop workers were the subject of legislation, and the much more intricate problems connected with transport and other classes of workers were being considered when the programme was interrupted by the emergency. It was decided not to proceed with the programme until something approaching normal conditions had been restored. Now, I think it is very undesirable to attempt to include within the scope of an Act designed to protect the conditions of industrial workers those who are not industrial workers. Their circumstances are different, and the form of legislation designed to secure protection for them must be different. I think that these workers are within the class that we describe as domestic workers. That term may be a bit confusing, but it serves.
Mr. Larkin
Surely they are public service workers.
They are not industrial workers. Neither is it correct for Deputy Larkin to say that these particular individuals have long hours. They have, in fact, a 44-hour week which is less than the maximum prescribed in the 1936 Act. So far as I know the only difference which would arise if they were brought within the scope of the 1936 Act is that instead of three and a half hours on a Sunday they would work three hours. If they worked three and a half hours on a Sunday they would be entitled under the 1936 Act to 24 hours continuous rest. Therefore, if they were brought within the scope of the Act the only alteration in their conditions of employment which the Dublin Corporation would have to impose, in the case of these workers, would be to reduce the duration of their work on Sundays from three and a half hours to three hours.
Mr. Larkin
They have to do two spells of work on a Sunday.
Two spells of one and three-quarter hours each. I do not want to be taken as saying that there is not some case for reconsidering the position of these workers. I have not examined it for the purpose of determining whether there is or is not, but I do propose to resist the attempt to deal with whatever problem is there by dragging these workers within the scope of the 1936 Act, an Act which was designed to deal solely with the case of industrial workers.
I pointed out, on the Second Reading of this Bill, that this legislation was designed to create minimum conditions of employment enforceable by law, and that there was, of course, nothing which prevented better conditions being secured by negotiation or by the willingness of employers to afford better conditions. It seems to me that, instead of trying to deal with this class of worker to which the 1936 Act was not intended to apply, by an amendment of this kind to that Act, that the employing authority should be approached.
Mr. Larkin
How can you exclude him? There are only about a dozen of them, and they are doing public service duties. What can you do by negotiation?
The class of worker which comes within the scope of the 1936 Act is not decided by reference to the person who employs him. The same employer may employ industrial workers, shop workers, agricultural workers and transport workers. The definition was drawn up in relation to the class of work done, and not to the class of person who gave the employment. Conceivably the Dublin Corporation has workers of every class. I imagine they are mostly industrial workers who come within the scope of the 1936 Act. Even a farmer may employ a worker on industrial work. If so that worker will be entitled to all the protection which the 1936 Act gives. Similarly, an industrialist might employ a farm worker who would be outside the scope of the Act. While that is so we must not try to deal with the employment of non-industrial workers by bringing them within the scope of the 1936 Act. I appreciate, of course, that these men have some grievance. Some representations have been made to me with reference to their grievances, but I do not think that this is the way to remedy them. Representations with regard to them might perhaps be made to the local authority. I should say that it is intended that this series of Acts will be continued, and that the problem of other classes of workers, not now protected, will be considered. Legislation affording them protection, similar in principle if not similar in kind to that which the 1936 Act gives to industrial workers, will be introduced. I would, therefore, urge on Deputies the desirability of leaving these non-industrial workers to await the protection of their conditions of employment by legislation.
Mr. Larkin
I do not know what category you can put these men into except that of industrial workers.
I think they are in the same category as watchmen and others of that type.
Mr. Larkin
No; they do industrial work.
If they do, then they come within the Act.
Mr. Larkin
That is the difficulty, that we cannot get that interpretation.
I think the interpretation is against you.
While we may agree that the main purpose of the Principal Act was to deal with industrial workers, that, I submit, depends completely on the definition of industrial work and of industrial workers. I think the Minister will agree that the definitions contained in the Principal Act are not in any way exhaustive either as regards industrial work or industrial undertakings and to that extent there is, if you like, room for certain improvements so as to give a clear definition of what is an industrial worker. There is this to be borne in mind. In the Principal Act you have first of all a definition of industrial worker. Then you define industrial work by setting down general clauses in connection with cleaning, repair, etc., which deal with a whole series of different trades in industries. That seems to me to show clearly that both the Minister and those who drafted the Act recognised the difficulties that were there. If we are going to take the position that a lamp-lighter, caretaker or a watchman is not an industrial worker, how are we going to justify the section in the Principal Act which says that the work done in connection with the cleaning of an industrial undertaking is industrial work? A watchman in an industrial undertaking has to perform a certain amount of industrial work. It is recognised that watchmen carry out certain work which, I think, everyone will accept as industrial work, such as stoking up fires and activities of that kind. In view of that, I submit that when the Principal Act was being drafted there were those difficulties so far as the definitions were concerned. The position is that those difficulties have been allowed to continue.
The suggestion has been made by the Minister that we might get them remedied by going to the local authority. The local authority is likely to stand on its legal rights, so that there would be nothing left to the trade union but to go to court and perhaps incur very heavy legal costs. If it was not the intention to include lamp-lighters under the Principal Act, at any rate it was intended, by the general definition, to cover certain groups of work performed for the local authority. I submit that within that general definition there may be industrial and non-industrial workers. Therefore, I say, lamp-lighters should be given the benefit of that definition.
There are two points on which I would like to correct the Deputy, first of all with regard to the particular form of the definition section in the Principal Act. It was not intended that that should be restrictive in any way. We recognised the impracticability of getting a completely satisfactory definition of industrial work, and so the Act was framed, leaving it by implication to the courts to decide what was or what was not industrial work. In order to minimise litigation, we did set out in the body of the Act all the activities that were on the face of them industrial work and in relation to these activities we removed the question from the discreation of the courts. Deputy Larkin (Junior) referred to the cost that might fall on a trade union if it went to the courts to have the position clarified. I do not think that they need incur any costs. Up to the present all the cases taken to the courts for the purpose of clarifying the definition have been taken by the Attorney-General, and in every instance where a prima facie case can be put forward that there is a doubt, I can assure the House action will be taken in the courts to get that doubt removed. There has been quite a number of these actions, which have resulted in a clarification of the position.
The Minister is no doubt aware of the action taken by Reddy and others against the Dublin Corporation under the penal sections of the Act and the High Court declined to hear it, because the judge considered that he had not the power to hear it. They then applied to the Supreme Court and that court threw it out as well. Eventually the trade union appealed to the Minister. I think the Minister is slightly incorrect in saying that these actions were taken for interpretation purposes. The courts declined to deal with the case on the ground that they had no jurisdiction under the Act to hear it. The union appealed to the Minister to prosecute. The penal section of the Act says that a prosecution for any offence may be brought at the suit of the Minister, but the Department was doubtful whether an offence had been committed. The position was that the parties concerned were unable to bring a prosecution. The facts were presented to the Department of Industry and Commerce, but they declined to bring a prosecution because they did not consider an offence had been committed.
It was intended that the normal practice would be that proceedings would be instituted by the Minister. In the case the Deputy referred to there was, subsequent to certain action in the court, an application made to me that I should prosecute the employer concerned. I was advised by the law officers that such action was not likely to succeed as, on the face of it, the persons concerned did not come within the scope of the Act.
Mr. Larkin
Through our conversations, and also through correspondence with the Minister's Department, we know you have been extremely careful never at any time to give an interpretation, but we have found officers of the Department who have taken it on themselves to give an interpretation. The case we are arguing to-day is such a plain case that it does not require to be brought to the court for the purpose of interpretation. It is simply a matter of common acceptance. I cannot distinguish between a man dealing with electric lights and the other type of lamp-lighter. The man dealing with electricity is in the Act, but the man dealing with gas appliances for the lighting of the city is outside it. It seems an absurdity, and I suggest the Minister should reconsider the matter. There are only 12 or 20 men affected. They are working along with men who receive the benefits that the Government were good enough to extend to them under the Act. The whole thing creates a certain amount of irritation. You say that some day you hope to give them all these social benefits. Why not start now?
It would be a bad principle to bring non-industrial workers under the Act.
Mr. Larkin
It is merely the application of a principle which you have already accepted.
Abnormal conditions have prevented the completion of the legislative programme, and I do not think we should attempt to deal with isolated cases by bringing them under the terms of legislation that was not designed to deal with them, nor do I think there is any special urgency in the case of the lamp-lighters, because the variations in the conditions of their employment which would result in their inclusion would be very slight indeed.
Amendment, by leave, withdrawn.
I move amendment No. 2:—
Before sub-section (2) to insert the following new sub-section:—
(3) Sub-section (1) of Section 3 of the Principal Act is hereby amended by the insertion before paragraph (n) of the following new paragraph, that is to say,
(n) Caretakers continuously employed by a local authority for more than eight hours in the day and for more than 48 hours in the week;
In substance, this amendment is somewhat similar to amendment No. 1, except for this point, that there is an urgent need of the type of caretakers who are referred to in the amendment being given the benefit of the Act in so far as they work a seven-day week and they can obtain considerable improvements in their conditions of employment if the Act is extended to them. I can see there are more difficulties from the point of view of the Minister in this instance than exist in the case of lamp-lighters, but there are certain points which strengthen our case. Caretakers, in addition to supervising buildings, have also to clean them and attend to the grounds around them. They have to inspect the condition of the buildings and are responsible for immediate repairs to sewers, manholes, gulleys, and must remedy stoppages in the sewerage system. In the case of anything serious, the matter has to be reported to the regular staffs, who then intervene to remedy whatever is wrong. The caretakers supervise and regulate the time clocks and the lighting of the building. They really have a multiplicity of duties, which go far beyond the range usually regarded as being the duties of a caretaker.
This is an effort to improve the lot of workers who undoubtedly work exceptionally arduous hours. Not only are they on duty seven days of the week, but formerly they were on duty for 24 hours each day and, if they want to go away for a brief space of time, they have to make a special request for permission to leave. That, I think, is objectionable; it is a thing to which no workers should submit.
If we take into account the number of hours per day and the number of days per week, we will realise how intolerable the position is from the point of view of the caretaker. There is little more that can be said in support of this amendment than what has been said in relation to the previous one from the point of view of trying to clarify and make more definite the position of these workers under the Act. I submit that, while the principle of the main Act is quite clear, it is apparent that certain defects exist, and we should now take advantage of this opportunity to remedy any weaknesses which have become apparent. I suggest it is unfair to deny to special categories of workers the benefits of the Act. I have in mind more particularly at the moment such workers as caretakers continuously employed by local authorities.
Once again my contention is that the conditions of employment of caretakers are so fundamentally different to those of industrial workers that the same legislation cannot cover both. In principle the 1936 Act set out to provide certain essential conditions, subject to the exceptions that had to be made to deal with particular cases, and these conditions were a 48-hour week and day work. These were the two principal conditions which the Act set out to impose, that industrial workers should work 48 hours a week and that that work should be done in the day time. Quite clearly, caretakers are in a different category. I do not know that it would be suggested that they should be limited to a 48-hour week. The nature of their work is quite different from that of an individual in a factory. They reside in the place where they work. Caretakers are given free residence and fuel in the block of flats which they are responsible for supervising. Whether their hours of work are too long or not, I do not think it will be seriously suggested that 48 hours of that type of work has the same nervous or physical results as 48 hours of manual or mechanical work in a factory.
I think Deputy Larkin was up against that difficulty in drafting his amendment, and so he got himself into a position in his amendment which is almost impossible, because he tried to define these caretakers as workers who work more than 48 hours a week and by that definition he hopes to get them under the Act. If they do come under the Act, they can only work a 48-hour week and, by his definition, are outside the Act again, and the problem of drafting, inevitably, will arise for anybody who tries to apply by such a device this Act to persons who cannot be described as industrial workers.
I do not know if there is anything more that I have to say on that question. These corporation workers did contend to me, in their representations, that certain parts of their work constituted industrial work within the definition. I got legal advice about that, and the advice was that we could not hope to sustain that contention in court. I feel, however, that even if that were not so we would have to consider the position of these workers, generally, because, apart from questions of more frequent or longer periods of leave for these workers, we could not apply to them the conditions of the 1936 Act, which was designed to deal with the case of industrial workers. I do not think it would be contended by these caretakers, or by anybody speaking on their behalf, that they should work only on the basis of a 48-hour week, as in the case of day workers. Clearly, some of these people must be on duty during hours which would be illegal according to the terms of the 1936 Act, and, having regard to the nature and character of their work, it might be contended that by being merely on duty and standing by, as it were, in their own residences, the conditions of the 1936 Act should not apply to them at all.
That is the problem relating to caretakers, but I think that it is a much wider question than that which is merely concerned with such people as are employed by the Dublin Corporation. Possibly, there are people, employed in such a capacity by other private persons, who are in a much worse position than that of caretakers employed by the Dublin Corporation. In that connection, I might say that the case of domestic workers will also have to be considered at some stage, and that some legislation will have to be designed and enacted to deal with their case also. I admit, however, that it is not easy to design a measure which will be related to the situation and which, at the same time, will be so adapted as to cover all the circumstances which may arise in connection with that type of employment.
Amendment, by leave, withdrawn.
The next amendment is No. 2a, which is on the Order Paper. Does it deal with the same subject?
No, Sir. It is not the same thing. At least, I, personally, feel that this is a different matter, because here I have a very good headline to follow, in so far as I am merely attempting to add one other section to a section in the Principal Act—an amendment which is almost in complete consonance with Section 3 of the Principal Act. Accordingly, I move the following additional amendment:—
2a. Before sub-section (2) to insert the following new sub-section:—
Sub-section (1) of Section (3) of the Principal Act is hereby amended by the insertion after paragraph (n) of the following new paragraph, that is to say, "(n) the work performed by watchmen employed in an industrial undertaking".
I have already referred to the fact that there is a clause in the Principal Act referring to the cleaning of any place where industrial work is carried on. My amendment is to the effect that sub-section (1) of Section (3) of the Principal Act shall be amended by the insertion, after paragraph (n) of the following new paragraph, that is to say:—
"(n) The work performed by watchmen employed in an industrial undertaking."
When it is noted that that amendment will follow upon a clause of the original paragraph, which refers to the cleaning of any place where industrial work is carried on, one can see that there is a close connection here and that there is a sound argument why this amendment should be accepted. I, personally, cannot see how, in any way, the principle to which the Minister has referred, as having been in mind when the Principal Act was drafted, can be in any way contravened by extending this clause in the case of work performed by watchmen employed in industrial undertakings.
I do not see how it can be justified that these things should apply to the cleaning of a place where industrial work is carried on, and why the work of a watchman should be excluded, since watchmen have to do a certain amount of cleaning up also. The Minister, of course, may say that the question of the hours of watchmen gives rise to certain difficulties. Admittedly so, but so did the work of shift-men give rise to difficulties. In the case of shifts, you had to cover a period of 24 hours in the day, but in the case of the majority of watchmen their hours of work start pretty early in the evening in most cases, and do not finish until the next morning, and the majority of them do not enjoy the ten-hour day which, normally, might not be in operation, but which is largely in operation in connection with these workers. There are certain exceptions, for instance, such as one with which I met last week. That was a case of a watchman who was working 14 hours a night for seven days of the week. I may say that, when the attention of this man's employer was called to it, he immediately corrected it, as soon as he realised the unfairness of it. Quite rightly, however, the employer concerned asked me to quote the particular paragraph of the Act which would apply in that case. I was unable to quote it for him, and I am still waiting to be able to quote it.
I do feel, however, that in so far as these watchmen are concerned, the principle of this amendment is one which the Minister would feel difficulty in resisting in view of what he has already put in the Principal Act. Secondly, on the question of hours, I think that if the principal embodied in this amendment were to be accepted, it would be quite easy to make some consequential minor amendments in the Principal Act which would allow for certain difficulties which do arise in regard to hours of working in connection with these people.
After all, if we can legislate and insert certain sections in the Principal Act, one covering certain classes of workers and laying down a 48-hour week, and so on, and another covering shift-workers and based on a 56-hour week, surely there would be no insuperable difficulty in allowing for the peculiar conditions under which watchmen have to work. I think that it should not be impossible to bring about conditions under which a nine-hour or ten-hour day should apply to these people, because it would not be a question of a double shift, but would merely mean knocking off an hour or two from the work of these men so as to limit their hours of work to nine hours per night or even ten hours per night. That would bring the time down from the abnormal number of hours per week that these people work now. It would mean a break of some kind in the seven days, because many of these watchmen do work the whole seven days of the week and most of them work six days of the week. Many of these people are working all night for seven days of the week—just going to bed for a few hours, and then going to work again—during the whole year. It must be remembered also that most of these people are old and have given a long period of service to the nation, and that they should now be entitled to more easement and more accommodation in their work, instead of being put to work long hours which would be a great strain on younger men. In many cases, also, these watchmen have to perform a great deal of work, such as the banking of fires, looking after these fires, and so on, and, generally they are doing work which is not only essential in many undertakings but of great importance with regard to the security of the people's property, generally. Therefore, I suggest that the Minister should accept the principle of this amendment, and then we can see about getting over any difficulty which may arise.
I will not dispute with the Deputy on the principle. I agree with him that there is in relation to that class of worker, as in relation to the other classes mentioned, a need for examining the extent to which we should, by legislation, deal with their conditions of employment. It will be clear, however, that the mere passage of this amendment would achieve nothing but a preposterous situation. If we put the amendment in the Bill, we would just create a situation in which a watchman could not be employed at all except between 8 o'clock in the morning and 8 o'clock in the evening. He could not be employed at night. We would have to follow the amendment by inserting in the Act a whole code of provisions relating to the employment of watchmen—their hours of work, the breaks in their hours of work and the number of hours per night, per week or per month they might do. I think the way we should do that is by a separate measure and not as part of this measure.
There may be, and probably are, special cases which will have to be dealt with, too. There are, no doubt, some watchmen who are employed in the daytime, although it is probably true that most of them are employed at night, when the normal day's work ceases, and there may even be special cases of watchmen employed in unusual circumstances in transport undertakings or other organisations, who may have to work only at particular periods of the week or particular periods of the month. We would have to get information about all these cases before we could attempt to make a general provision applying to all watchmen, and, even if we were prepared to do all the consequential amendment of the main Act which would follow the adoption of this amendment, it would be unsafe to do it without some more elaborate examination of the possible consequences than we have attempted so far.
Mr. Larkin
I submit that if a man is working for a factory but outside it, and if he goes into the factory and assists in any way, he is an industrial worker. If he goes in for only one hour, he comes under the Act and we can claim all the benefits of the Act for that man. I have in mind the case of a man working in a big industrial plant who is the only man disqualified under the Act. He is doing 102 hours a week and we can find no remedy for his position except to close down the whole plant. Take, for instance, firms like the tobacco firms, where conditions are much superior to those in any other industry. A caretaker is employed, but there is also a watchman who may be on for a certain number of hours a day. There is a watchman there all the time, and he is included as an industrial worker. He goes on at night, but in no case does that man touch the boilers or do stoking or banking up. In the case of the industrial paperworks, however, if the man does not get the boilers ready to give a certain pressure of steam in the morning, the workers are held back. It may involve only a half an hour's or 20 minutes' work, but his doing that work during the watching hours means that steam is raised for the men when they come in. Is he not part of the industrial undertaking?
The same applies to the Port and Docks Board. We had the case of one man doing 104 hours. There are only 8,736 hours in the year, and there is no difficulty in bringing these men under the Act. If you take the ordinary number of hours in the week, 168, and break them up as you wish, we can very easily, by agreement with the Minister, get a position under which we can include these men. It is absolutely inhuman to allow the present position to continue year after year, because the Minister undertook to try to extend the benefits of the Act to all workers. Why are these men excluded? As Deputy Larkin (Junior) says, some of them have given 20 and 30 years' service. They are then told: "You go watching next week," and they are doing more work watching now than they were when doing their ordinary day's work. That is not fair; it is dishonest and unjust to everybody. A watchman with a uniform on is supposed to do only eight hours a day, and he also serves who only stands and waits. The policeman is not always locking people up. It is possible to provide regulated hours for policemen and even for soldiers and sailors, but it is not possible for other human beings who, in view of a watchman's responsibilities, are giving very valuable service to the community. I know a watchman who has to go around every 20 minutes and lock 20 time locks.
Take the case of a firm like the Gas Company. Is it fair that a man standing all day at the gate checking out loads of coke should not be an industrial worker or that the man who watches the plant at night—the plant is working continuously—should not be included? My friend Deputy O'Leary could speak of the mills, where there are watchmen whose duties are laborious. The Gas Company can pay a sufficient wage to meet this difficulty, but these men are not included. The only way by which they can be included is to stop the industry and that is not the wise way. The wise way is to bring all watchmen in industrial plants under the Act and I ask the Minister to consider doing so.
They cannot just come under this Act. I am not disputing with the Deputy at all the necessity for legislation. I have already recounted the progress made with the series of Acts we contemplate. When we had finished the enactment of the 1936 Act and the Shops (Conditions of Employment) Act, it was quite obvious that it was going to require a certain amount of detailed examination before we would get a satisfactory measure to deal with other workers. At that stage, we decided there was no reason why we should delay conferring upon these other workers the benefits of an annual holiday, with pay, and certain provisions of the 1936 Act. That was done by the Holidays (Employees) Act, 1939, which extended these benefits to all workers straight away. That step was taken because it was recognised that certain inquiries would have to be instituted and a certain time would be involved by an examination of the problems created by transport workers, domestic workers and certain other classes who had yet to be covered. I agree that these have yet to be covered and I agree that it is desirable and necessary that they should be covered, but I do not think the right way to do it is by attempting to bring them under the 1936 Act merely because there has been delay in dealing with them under another Act.
I think the Minister has admitted the case made by Deputy Larkin on this amendment. If provision is not to be made in an industrial Act for a type of worker who, he admits, is an industrial worker doing industrial work——
I did not admit anything of the sort. On the contrary, I say that it is because they are not industrial workers that they are not in the Act.
The Minister cannot bring a man who is employed as a caretaker and watchman and, to a certain extent a workman, in an industrial plant under an industrial Act. Will he tell us how he will bring him under the proposed domestic Bill or the proposed agricultural Bill?
Two of the main provisions of this measure are the 48-hour week and work between eight in the morning and eight in the evening. Clearly, neither of these provisions would apply or can apply to night watchmen.
Every protection is given in the main Act to men who are doing work at night.
On shift work, yes.
It does not matter. They are not working in the day. The Minister's whole case is the difficulty of providing for these people, of bringing them within the four corners of the Act, but the Minister had to face very big difficulties when he brought in the original Bill. He had to face difficulties which many people in the country thought were insuperable, difficulties which many people said would completely dislocate industry and business. Of course, they did not do any such thing. What rather frightens me is that when a case is put up to the Minister, the Minister seems to indicate that particular type of work or worker will require a separate Act.
May I remind the Deputy of our experience with the Shops (Conditions of Employment) Acts? As a result of strong representation here, I did something against my own judgement, that is, attempted to cover hotel workers in an Act designed for shop workers. We found that we had in fact attempted the impossible and we had to undo it again. I think that the varying circumstances of different occupations will involve separate legislation for each.
I think there is one type of work that could be brought within the terms of the 1936 Act and that refers to the type of person mentioned in the amendment. Take my constituency, in which there is a factory, at which a number of people are employed. Every person working there, with one exception, gets the benefit of the 1936 Act. The man is not only a caretaker and watchman, but, as Deputy Larkin pointed out, has to do essential industrial work, without which the working of the whole factory would be hampered.
Would the Deputy tell me what benefit of the 1936 Act that person is not getting? So far as I know he could get every benefit of the 1936 Act, except two, and these are those concerning working in the day-time and a 48-hour week.
The question at issue between those supporting the amendment and the Minister is that the Minister says, because a man works at night, he could not be included. We say that the Minister has already provided for night work in the Act. I do not believe the Minister questions the position of the man mentioned by Deputy Larkin, and that that man could be classed under the Act as doing industrial work. The Minister stated that it was practically impossible, or only with great difficulty, to have an amendment framed that would be workable within the four corners of the 1936 Act. I do not believe it is beyond the Minister's power to do that.
The Minister told us of his difficulty and he put that forward as an excuse for an injustice continuing. He stated that there was difficulty in amending the Act so that it would cover the people enumerated in the amendment. Can he conceive the injustice he is doing some people? I have in mind a type of watchman upon whom hardship is inflicted because the Act of 1936 does not apply to his case. Take the position of a watchman under a public body. He goes to work at six o'clock in the evening and is on duty until eight o'clock in the morning. The Minister contends that that work is not as important as that of a time keeper. Surely there is no sense in that kind of argument. That man works 14 hours. Nobody can say whether he works at night or in the day. As the Minister pointed out, shift-work continues at night yet, after working for 14 hours, the type of man I refer to is to get nothing extra. In other Acts of Parliament the Minister gave administrative decisions to facilitate the people concerned in getting judicial decisions.
Why does he not do something like that in this case? He could make an administrative decision and let that be taken forward for a judicial decision, to see if it would be supported. Although people are employed at a particular work and are doing that work just the same as others who get the benefit of the 1936 Act, because there is an administrative decision against them, the Minister does not facilitate them in getting a judicial decision in the courts. Surely that is an injustice. The framework is there, but the Minister says he does not want to interfere with it. Accordingly, the injustice must continue. It should be possible within the power that the Minister has, even as a temporary measure, to bring such people within the Act and to remove the injustice.
In my opinion nobody attempting to draft legislation of this kind would proceed on the basis that there is any similarity between work done in the day-time, such as digging a drain in a street, and the work of a man who is there when day work finishes, to see that nobody falls into it. I think it cannot be contended that the restrictions it is necessary to impose on one type of work apply without modification to the other type of work. The other point is that we by the Act prescribe minimum conditions and not maximum conditions. There is nothing to prevent public authorities doing what Deputy Hogan referred to, improving the conditions of these night workers.
By taking industrial action.
Some public authorities and some private employers, as Deputy Larkin mentioned, did so under the Conditions of Employment Act.
Mr. Larkin
We never want any legislation for the good type of employer.
I agree that it is desirable that matters relating to conditions of employment should be regularised by the preparation, the introduction and the enactment of a code generally applicable, and that everybody would appreciate the reasons for. It is, however, a far more complicated matter than appears at first sight and, as I pointed out, we have already had the experience of having to retrace our steps in one respect, where we were persuaded by arguments such as we had to-day to go too far—at least, to proceed along the lines of applying a code designed to meet the conditions of one set of workers to another set whose circumstances were somewhat different. Even when we have completed the series of Acts we have in mind, I think that there will be odd employments here and there which we will have left out. Nevertheless, we could design for each type of employment legislation to apply, in a broad sense, the same principles to all concerned.
Mr. Larkin
Would the Minister say if there was the intention, at any time, in any section of his Department, to bring in legislation to interfere with the right of an individual to get the benefits of the Act? Take the case yesterday—though we cannot try it here—of James Murray: that man was deliberately denied his right to six days' work so as to evade the provisions of the Act. I submit that the rotational system of work is deliberately designed to deny the workers their rights under the 1936 Act.
That is a separate question, which I could not argue here now.
Mr. Larkin
Here is a concrete case. Supposing that men are excavating a cutting in the street, to put in water, gas or sewer pipes, and you cover that cutting up and have no watchman, and reopen it in the morning? The watchman who is employed at 3 o'clock and comes on at 6 o'clock, and then goes on from 6 o'clock until 8 o'clock the following morning, allows that work to progress, without any covering up.
I do not deny his importance.
Mr. Larkin
No one under the sun could deny the fact that these men are being deliberately mistreated.
What I say is that the type of work he does is fundamentally different from the type of work done by the man who digs the cutting.
The Minister is very ingenious in working in his distinction between the man who carries a red lamp and puts it alongside the opening and the man who digs with a pick and opens a drain. Would the Minister relate the connection there is between the man with the fountain pen and the man with the pick? The man with the fountain pen is included.
Not in this Bill. This Bill relates to manual workers only. It does not relate to the man with the fountain pen. He is specifically excluded.
Mr. Larkin
The man who takes the time is included.
Time-keepers may be included in some cases, but commercial workers are excluded.
The man who carries the lamp is different from the man who carries the fountain pen?
I am not trying to justify that situation. I say that the series of Acts is incomplete. The man who carries the red lamp and who is watching the excavation for the night is doing work which is less strenuous than the work done by the man who is labouring with pick and shovel to create the opening. The whole circumstances of their respective employments are so different that you cannot apply to one legislation which is designed to control another.
We are now down to the strenuousness of the work. Will the Minister say whether the man with the fountain pen is working more strenuously than the man with the red lamp?
He may be. As far as I am concerned, I do more strenuous work.
Mr. Larkin
I would ask the Minister to watch a cutting from 6 o'clock to 10 o'clock at night. I am sure he would go back quickly to the pen. The watchman has to deal with rough, uncontrolled boys and his work is the most strenuous in Dublin. It is the same as that of a caretaker. It is a very difficult job to caretake premises. I would sooner be doing the Minister's job.
I do not deny that in the least. I fully agree with the Deputy.
Is the Deputy pressing the amendment?
Yes. It seems to me that the Minister is more lacking in his reply to this amendment than in the case of any amendment so far. First of all, he says that the Principal Act is incomplete, that it is one of a series. The Principal Act was passed in 1936—eight years ago, which is quite a considerable time, even if we allow for the four years of difficulties, when the attention of his Department might be taken up with other matters. During that period, the Department has found it possible to find that a section of workers was included which should not have been there, and that section is being taken out—the Minister is going to exclude fishing.
To my mind, the Minister does not deny the soundness of the argument that watchmen have got a very strong claim—especially watchmen in industrial undertakings—to be given the benefits of the Principal Act. The Minister says, however, that there is the difficulty of hours. That position is not one that has arisen overnight. I think it has been queried and questioned with regard to watchmen almost since the passing of the Principal Act, right through the whole period of eight years. I do not wish to cast doubt on the Minister's good intentions; but if eight years have elapsed and nothing has been done to remedy a situation which he himself admits requires correction, while on the other hand action is taken to exclude a section of workers, it strikes me as being very peculiar. The other point he makes is that one cannot control these watchmen because they work at night; but he answers that argument himself by admitting that he has already dealt with shift workers.
This amendment is confined to watchmen in industrial undertakings. It does not deal with watchmen of all types, in all types of employment and in all parts of the country. On the Minister's own ground, namely, that cleaners in industrial undertakings are included in the Act, if they can make a claim for inclusion and have it accepted, surely, in principle there is nothing to exclude watchmen? We, have, then, only the difficulty of the hours.
If the Minister can find a solution for that already, by having two separate sections in the original Act, one dealing with day workers working an eight hour day and a 48 hour week and the other dealing with shift workers working a 56 hour basis, worked any time within 24 hours, day or night, surely ways and means can be found to deal with the problem that would arise in this case? It is admitted in principle that watchmen in industrial undertakings are, in general, within the definition of industrial workers as laid down by the Principal Act and, if there is any good intention on the part of the Minister, it should be possible to find a solution. If that solution has not been found in the last eight years, how long more are we to wait?
When it comes to the question of limiting the Act and of taking away certain benefits that apparently were given by mistake, the Minister seems to move fairly quickly. The difficulty mentioned now has been known to his Department for eight years, ever since the Principal Act was passed, yet nothing has been done. This problem of the watchmen in industrial undertakings is a far more grievous one than even that of the actual industrial workers themselves, who were the main object of concern when the Minister drafted the Principal Act, as the majority of industrial workers had in or about the conditions which they are given under the Act. Here we are dealing with men who are required to work 108 hours per week, as contained in some of the standard wages Orders officially accorded by the Minister.
The Minister says that we have a remedy. We can rectify this tomorrow and we can stop the most important public undertaking in the City of Dublin, for the sake of ten or 15 men. That is the remedy, yet we suggest that there is an easier remedy, that there has been ample time to consider this problem, that there is no insuperable difficulty in getting a formula which will allow for and meet any peculiarity in these hours. The Minister says that we should wait a little longer, to let him complete the series. In this case, I am not prepared to withdraw the amendment, as I think the Minister's own argument strengthens the case made for its insertion.
Amendment put.
The Committee divided:—Tá, 24; Níl, 48.
Tá
- Bennett, George C.
- Byrne, Alfred.
- Byrne, Alfred (Junior).
- Cafferky, Dominick.
- Esmonde, Sir John L.
- Everett, James.
- Giles, Patrick.
- Hogan, Patrick.
- Hughes, James.
- Larkin, James.
- Larkin, James (Junior).
- MacEoin, Seán.
- Corish, Richard.
- Cosgrave, Liam.
- Davin, William.
- Doyle, Peadar S.
- Morrissey, Daniel.
- Norton, William.
- O'Higgins, Thomas F.
- O'Leary, John.
- O'Sullivan, Martin.
- Spring, Daniel.
- Stapleton, Richard.
- Tunney, James.
Níl
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Boland, Gerald.
- Boland, Patrick.
- Brady, Brian.
- Brady, Seán.
- Breathnach, Cormac.
- Breen, Daniel.
- Breslin, Cormac.
- Briscoe, Robert.
- Buckley, Seán.
- Butler, Bernard.
- Byrne, Christopher M.
- Childers, Erskine H.
- Crowley, Fred H.
- Derrig, Thomas.
- De Valera, Eamon.
- Flynn, Stephen.
- Fogarty, Patrick J.
- Gorry, Patrick J.
- Hilliard, Michael.
- Humphreys, Francis.
- Kennedy, Michael J.
- Killilea, Mark.
- Kilroy, Séamus.
- Kissane, Eamon.
- Lemass, Seán F.
- Little, Patrick J.
- McCann, John.
- MacEntee, Seán.
- Moran, Michael.
- Morrissey, Michael.
- O Briain, Donnchadh.
- O Ceallaigh, Seán T.
- O'Grady, Seán.
- O'Reilly, Matthew.
- O'Sullivan, Ted.
- Rice, Bridget M.
- Ruttledge, Patrick J.
- Ryan, James.
- Ryan, Robert.
- Sheridan, Michael.
- Skinner, Leo B.
- Smith, Patrick.
- Traynor, Oscar.
- Ward, Conn.
Tellers: Tá Deputies Larkin (Junior) and Tunney; Níl: Deputies Kissane and Kennedy.
Amendment declared negatived.
Section 2 put and agreed to.
SECTION 3.
On behalf of Deputy Keyes, I move amendment No. 3:—
Before Section 3 to insert a new section as follows:—
5. —Section 9 of the Principal Act is hereby amended by the insertion therein before sub-section (3) of the following new sub-section:—
(2a) Whenever a worker claims that under this Act there is due to him by an employer any sum of money in respect of wages or in payment for overtime or otherwise it shall be competent for such worker to proceed for the recovery of such money as a simple contract debt in a court of competent jurisdiction.
I think I can assure the Deputy that the amendment is unnecessary, as the right which the Deputy is proposing to confer here already exists under the Principal Act. In fact, there have been a number of cases of workers who took proceedings for the recovery of money due to them in respect of overtime, and it is arising out of one of these cases that this amending Bill became necessary.
Amendment, by leave, withdrawn.
On behalf of Deputy Keyes, I move amendment No. 4:—
Before Section 3 to insert a new section as follows:—
Section 9 of the Principal Act is hereby amended by the insertion therein before sub-section (3) of the following new sub-section:—
(2b) Whenever a dispute exists between a worker and an employer as to whether such worker is doing industrial work within the meaning of this Act it shall be competent for such worker or for an official of a registered trade union of which such worker is a member to take proceedings in the High Court for the purpose of obtaining a declaration that he is an industrial worker to whom this Act applies.
This amendment has reference to the question of interpretation. Here it is suggested that every workman, or the registered trade union acting for him should, if they so desire, have power to seek an interpretation from the courts. Earlier on the Minister explained the difficulty and said that when a case was brought to his notice he had to seek legal advice and that, if the legal advice did not sustain the position, he could not succeed. It might frequently happen that either a workman or a trade union was prepared to take a chance with court proceedings in the hope of getting a decision. It is with the object of giving them power to test that possibility under the Act that this amendment is proposed.
I think it desirable that the suggestion should be reconsidered. May I say that it is not clear that under the Act the individual workman or his trade union has not got power to institute proceedings? The fact is that up to the present in every case proceedings have been instituted by the Minister for Industry and Commerce as a result of representations made to him by a workman or by a trade union representing a workman. That system means that the cost of the proceedings is borne by the State and not by the individual workman or by the trade union acting for him—and the cost of proceedings in the High Court is fairly heavy. I think, certainly, that the normal practice should be that the State having enacted this legislation, should enforce it and that an individual who feels that he is deprived of rights under it, should appeal to the responsible Minister who in the name of the people should proceed to procure for that individual his rights through the court at the public expense. I think that that is a sounder principle than that we should either put the onus on the individual to protect himself or even make it clear that he can do so if he wishes, because I can visualise if the worker has the right to proceed, a tendency developing in the Department of Finance, which has to act as the guardian of the public purse, to say when representations are made to the Minister: "The individual himself has the power to initiate proceedings to have his grievance redressed, let him therefore do so." I think the obligation should be on the Government to take action and bear the expense of prosecuting the action.
I support the amendment because the case I mentioned to the Minister earlier was one in which the employees of the local authority desired an interpretation of the Act enabling them to come under the definition of industrial workers, and that the Dublin Corporation was a local authority within the meaning of the Act. The position was that they could not frame a claim about monetary loss. I have not the full particulars of the case but their claim probably was really in respect of time worked more than for monetary loss. They could not, therefore, frame a claim for monetary loss. They then applied generally and the judge of the High Court said that under the 1926 rules he had no authority to hear them. Counsel on both sides argued that he had. The Minister will appreciate that that is an unusual position. However, the judge declined to hear them and the matter went to the Supreme Court where a like decision resulted. The position is that the Minister may bring a prosecution. He can either bring it on their behalf or on his own behalf. In this case they offered to defray the full costs themselves but the Minister was advised apparently that no prosecution lay.
I was advised that there was no possibility of doubt. It was not merely that no prosecution lay but that there was no doubt that the case could not succeed. In every case where there was a doubt we have proceeded in order to get a clear decision on the matter. There have been a large number of friendly actions and action would have been taken in this case if there was any doubt at all.
If these men took action themselves, they would not receive the benefit of the Act.
They could not possibly succeed.
Or the union acting for them?
Yes.
Putting aside that case, it might have been well to let them get an interpretation of the Act if the Act is to apply to industrial workers. The position was that without the Minister's consent they could not bring a prosecution.
I should like to support the amendment on the following grounds. Unfortunately I was in only for part of the discussion on the other amendment and for a time I was puzzled as to the necessity for it.
I think it very inadvisable that legislation should go out from this House in an undefined and inexact form, because it then requires a considerable amount of expenses in order to establish what the Legislature meant. We should try to frame our legislation so as to remove all possible doubt. I think the doubt arises in this case because of the manner in which the original section was drafted, that is, Section 3 of the Conditions of Employment Act, 1936. The section purports to define industrial work but what it in fact says is, that "industrial work is every kind of work except the following"—and it then proceeds to exclude a number of classes of work. It says: "The expression industrial work' does not include agricultural, commercial nor domestic work nor mining nor the transport of persons or goods, but subject to that limitation the said expression includes all forms of industrial work"—making use of the very words which the section purports to define. My suggestion to the Minister is that all this difficulty could be got over and doubts and expenses reduced to a minimum, if for the purposes of Section 3 you define what is meant by agricultural work, commercial work, etc. You would then have that definition as an exclusion, not involving our general code of laws or the entire Act but merely for the purposes of the section.
There is an attempt made to define agricultural, commercial and domestic work in the sub-sections of that section but the doubt has not been as to whether they were included but what the facts were in a particular case—whether particular workers engaged in certain activities were or were not doing industrial work.
The difficulty of the Minister is that these are all forms of industrial work. You are defining what industrial work is and then you say that the expression includes all forms of industrial work.
There is no absolute definition—that is true.
I would have thought that the class of employee we were discussing just now, namely, a watchman, would automatically come under this section.
If he does industrial work, yes.
Then you start the argument all over again as to what is industrial work. I think it is a question of looking into the original Section 3. I think everybody seems to be agreed that we should make it as clear as possible in this Bill, though far be it from me to keep work from the lawyers.
Mr. Larkin
In this case I am on the side of the lawyers. We are dealing here with the question whether we have the right to proceed to challenge a certain interpretation. I do not think that any legislation passed by this House could override the Constitution. You can amend the Constitution, but I do not think any court of law could refuse to hear any person who feels injured in this matter. That is my interpretation of the Act.
There are two matters arising. One is the right of the individual to recover moneys due to him. That is specifically safeguarded in legislation. The other is the right to institute prosecutions against an employer.
Mr. Larkin
I am quite clear in my mind as to what is at issue. My point is that if any individual feels that he has a legal right to something which he is being denied, liberty to proceed to assert that right cannot be denied either to an organisation or an individual. Lawyers, with all due respect, have built up a wall of privilege. It is very difficult to get inside that wall of privilege, but in the last analysis, surely a citizen is a citizen. If I go into certain courts, I cannot plead unless I have a solicitor and senior and junior counsel. The law does not say so, and I have challenged that on many occasions—too often for my own comfort. The point is an individual has been injured. Surely he has the right to go before a court of law and demand a hearing. In this case he is stopped.
Oh, no. I do not admit that he is stopped at all.
Mr. Larkin
On the question of another grievance under this Act, I am not permitted to go except with the Minister's permission. Is not that true?
That has not been decided by any court. The view has been expressed, but it has not been decided by any court.
Mr. Larkin
Unfortunately, it has been decided in a way which you do not try to follow. A few months ago, after we had a long discussion between several unions over the case of a man who had been unjustly treated under this Act, it was agreed that we would toss up to see what union would proceed. It was decided that one union would take the action. I do not know why, because they had less at stake than other unions. However, there was an individual picked out, and his name was given as being the plaintiff. Strange to relate, the plaintiff who proceeded to fight the case was a man who had himself offended against the law. He not only had 1,800 hours' work; he had 2,800 hours in the one year. Of that 1,000 hours over the 1,800 which would qualify him for his holidays seven-tenths was at time-and-a-half rates and the remainder was at full-time rates. In other words, he had worked two years in one, and if I had been the judge I know what I would have done with him under the law. Here is a man who had taken two men's jobs. He was then looking for holidays. The Government, under the advice of their learned counsel and the Attorney-General, proceeded to pick out this gentleman to fight a test case. I would have thought they would have picked out a man who had not got the 1,800 hours—a man who was entitled to a holiday. The other man could have well paid for a holiday, because he had been paid more than the legislators here. How long have they been deciding to take that case we had yesterday of Thomas Murray against the Corporation of Dublin? You cannot proceed against the Corporation of Dublin on this particular ground. I know an employer who is breaking the law day and night, and I find that there is dilatoriness—I will not say anything worse than that—in proceeding against him.
I want the right to assert my rights; the union to which I belong, when they have a case, will proceed whether you like it or not. We do not care what the cost is. Individuals in the State have their rights, and you should protect them. As has been done in many cases, the right should be given to collective organisations to protect their members. If you would agree to this amendment, I do not see how it would interfere with you in any way. Do not stand in our way, because to fight you will be more difficult than to fight the case. I suggest to Deputy Esmonde, who has legal training, and to Deputy Cosgrave, that if they consider the matter they would agree, as would any senior man at the Bar, that in law we could not be stopped.
I never suggested that you were.
What the Act says is that a prosecution for an offence under any section of this Act may be brought at the suit of the Minister.
Mr. Larkin
"May be".
May be. In practice, every case has been brought at the suit of the Minister, but I do not think it has been decided anywhere that a case could not be brought by somebody else. There is, at least, a doubt in that respect.
Mr. Larkin
Take the case of a girl who is working in a factory all night. Does anybody take any notice of that? She is working continuously, breaking the law knowingly, and her employer is breaking the law knowingly. The Minister's officers do not take any notice, or do not get to know about it. Is that girl and her employer to be allowed to continue to break the law? Take the case of the firm up in Cork Street, which has now been closed, and which was working all night on Saturday and all day on Sunday. Attention was called to it day after day.
The girls there worked from 6 o'clock on Saturday night until 6 o'clock on Sunday night, without even getting out to their services or devotions, and yet no action was taken. I say that you must loosen this thing up, and give us a chance to go after those gentlemen. Only a few months ago I called the attention of the Department to a factory which started up on the north side, employing girls at 7/6 a week, who were working up to their ankles in water, with their shoulders sopping wet. I had a case before me yesterday of a man getting robbed of what he is entitled to in the way of average holiday money. What remedy is there if the Department does not take the matter up? I cannot proceed in his name, although sometimes we do spend money on unorganised workers. This man claims an average of £4 a week. The employer does not put up in the factory the contract of service between that man and the employer. He breaks that law. When that man gets a week's holidays, he is given £3, and when he says: "That is not my average wage under the Act," the reply is: "If you do not like it, get out." What are you to do if you cannot protect that kind of individual? If that case were loosened up, I could get behind that man, but as things are I cannot do so, so I have to move your Department.
You can. The Deputy misunderstands.
I want to remove a misconception which may arise out of Deputy Larkin's remarks. Lawyers may be a non-incorporated trade union, but a trade union we are at all events. Perhaps Deputy Larkin is well aware of it, because I saw him appearing in person in his own case some years ago, and he did it very well. It is open to any member of the public to go into any court in this land and plead his own case without the assistance of any lawyer. I merely mention that in case a different opinion may go forth on the authority of Deputy Larkin. That being the case, I think we offer facilities and privileges to the public that are offered by very few other trade unions.
If the Deputy will allow this amendment to remain over to the next stage, I will get a more precise definition as to what the position is.
Amendment, by leave, withdrawn.
On behalf of Deputy Keyes, I move amendment No. 5:—
To delete sub-section (2) and substitute the following sub-section:—
(2) Sub-section (1) of this section shall come into operation on the date which this Act becomes law.
This amendment is a very simple one, and yet a very important one. It deals with a matter which has been the subject of continuous criticism in this House on a number of occasions during recent months when amending legislation was brought in. It is to prevent what is to my mind an abuse of legislation by the putting into force of retrospective legislation to the detriment of the interests of the citizen. When this Bill was introduced it was explained by the Minister that certain loopholes in the Principal Act had to be closed, loopholes which it was not intended should be left there. It is recognised in the Bill that at the present time certain proceedings might be in the course of hearing or about to be determined, and it makes provision not to interfere with such cases. At the same time it does set down that this amending Bill shall be deemed to come into force from the date of the Principal Act and, at one stroke, wipes out all claims except those in which proceedings have actually been commenced before the 16th February, and denies to any citizen who may be aggrieved under the Principal Act the right to claim what he feels he is justly entitled to claim.
I can quite understand either the Minister or the Government taking the view that if a genuine and honest mistake is made it should be rectified. I do not suppose that legislators or senior officers of Departments are immune from making mistakes. It seems not only unfair but to be treading on most dangerous ground when we allow ourselves to be inveigled by specious excuses into violating one of the fundamental principles of legislation, namely, that we shall not take advantage of our position to give retrospective effect to legislation which is of a debarring or penalising nature.
In this Bill, the first thing we do is to take out of the Principal Act a section of workers who were formerly included. I do not know whether there are many fishermen about to insist upon or to claim their rights under the Principal Act before it is amended but there might be quite a few. I am quite sure that neither the Minister nor the Department could assure us that at this particular moment there is no fisherman in the State who is not contemplating enforcing certain claims to which he thinks he is entitled at this moment under the Principal Act or seeking advice on the subject. It is quite possible that when the Principal Act was passed it was not intended to give these benefits to a fisherman but, nevertheless, for a period of eight years that law has remained on the Statute Book. Now the fisherman proceeds to take advantage of it and, before the matter can be brought to a decision, we step in and say "No." I wish to submit again what I have submitted before, that if we have made mistakes let us correct them but let us not at the same time go about it the wrong way, trying to deny the fact that we have committed the mistakes and trying to cover them up. Of course, it is quite correct, as was pointed out in regard to another amending Bill here, that we may save the State considerable sums of money. I think in regard to all the claims that possibly might lie under the Principal Act before it is amended by the present Bill, the total sum of money would not be so very great and in most cases it will not be the State that will have to provide the money, it will possibly be some of the gentlemen to whom we referred in another debate as earning very high profits during the present period. Even so, the amount involved will not be very considerable and, for the sake of the principle involved, namely, that we should not commit ourselves to the deleterious practice of giving effect to retrospective legislation, especially in amending Acts, I would urge the support of the House for this amendment.
When I first read the Bill I formed the same opinion in regard to the retrospective nature of this section as has been expressed by the mover of the amendment. I do not suppose there are many cases, if any, involved, but I am against retrospective legislation of this kind on two grounds. First of all the undoubted harm it must do to certain individuals who were following their rights prior to the passing of the legislation and, secondly, that if we allow this through without any comment, in a much more serious matter later on, involving many more serious points perhaps, it will be quoted as a precedent that it went through in connection with this Bill as it has gone through in connection with other Bills. Usually, when the Government deem it necessary to bring in legislation, shall we say, to nullify the effect of our Supreme Court, which was the final analysis on all litigation, in connection with any particular case in which individuals have incurred expenses, on the grounds of equity, the Government see that they are reimbursed. I think that happened in connection with one Act.
The point about it is that we should not recognise as part of our enacting procedure, particularly in connection with amending Bills, that everything that is in an amending Bill must at once be retrospective to the date of the original Act. It is a very dangerous precedent, as I think the Minister will readily agree. I am quite prepared to admit that in this case it probably does not affect any individual at all; there may be no cases pending. Of course, there is a way out of the difficulty and it is this, that if in good faith, any person commences to take proceedings or incurs expenses, replying on what, up to the present time, would have been a correct interpretation of this section, he should be provided for in some form or another. As I say, retrospective legislation is very dangerous because our Supreme Court make a decision in a particular case and we can immediately pass an Act of Parliament after a considerable amount of costs has been incurred and this will be pointed to as a precedent. I would like to be satisfied that it is not generally the policy of the Government in amending legislation automatically to make everything retrospective, that it is only done owing to the necessities of the particular case or subject to qualification.
There are two changes being made by this Bill. The first relates to fishermen. There is, I am sure, nobody in this State engaged in the business of fishing who, up to the date of the introduction of this amending Bill, had the slightest idea that fishing was covered by the 1936 Act and there is no case pending in court concerning it. The other amendment relates to continuous process shift work and it is a much more important case because there claims have been made in the courts and, even though the verdicts given by two judges who heard two similar kinds of cases appear to be in confict, nevertheless, because there is the doubt and because there is some reason to assume that the final decision of the court would be that the Act was not as we intended it to be, it is necessary to make this provision in order to ensure that retrospective claims for a very considerable amount might not be made on behalf of people who, until the date when this Bill was introduced, did not know that they would have such claims to make.
That is a different point.
The case that arose there was whether persons engaged in continuous process shift work were engaged upon ordinary time or upon overtime in respect of the number of hours they worked in each week in excess of 48. Now, clearly, if the position were left unchanged, conceivably every worker employed in every continuous process industry since 1936 could now proceed against his employer for payment of the amount of overtime due to him over all that period of years and that would amount to a very substantial sum indeed. The position of the employer would be several degrees worse than if this amending Bill had never been introduced because, until it was introduced, neither the employers nor the vast majority of the workers in these industries contemplated that the courts might put an interpretation upon the Act which would give them such a claim. In one case the court did put that interpretation upon the Act and the worker recovered a substantial sum of money from his employer in respect of overtime. In another case, a worker who took a similar action failed to recover and got a decision against him.
This sub-section is, in fact, the kernel of the Bill, because it seems to me that essential justice requires that, having now revealed the fact that the drafting of the original Act was open to this possible misinterpretation of our intentions, we must proceed to put it right so that there cannot be effect given to that accumulation of claims which may have arisen since 1936 and which, in the case of an industry like the sugar industry, would amount to a substantial sum of money. A considerable sum of money would have to be paid by consumers of sugar in this year, although the claims originated in previous years and the sugar produced has already been sold and consumed. It seems to me that, whatever the claims in law might be, the claims in equity are in favour of the course which we have adopted—that is, to put the law right retrospectively. Wherever anybody has taken a case to the courts and got a decision in his favour, that decision will stand and, wherever anybody has taken a case which is not yet decided, that case will be decided as if this amending Bill had never been introduced or passed.
Those who became aware of a possible defect in the Act and took action to enforce their claims are fully protected. But where people were not aware that they had any claim and learned that they might have only when this amending Bill was introduced, there appears to be no basis in equity to support the contention that the amendment of the Act should not be retrospective. That sub-section is, in fact, the primary reason why this amending Bill was necessary. It is the kernel of the whole measure and I cannot agree to accept the amendment.
I quite agree that no claims sent in now should be considered. I was concerned only with persons who had already taken proceedings.
They are fully protected.
Does the wording of that sub-section cover them?
Section 4 gives them full protection.
Mr. Larkin
A broader point developed in the course of the debate regarding retrospective legislation.
We have had to introduce measures of this kind before. The principle adopted has been much the same in all cases. If it was necessary to make the amending measures retrospective, we protected the interests of everybody who had proceeded on his own behalf in the interval.
Amendment, by leave, withdrawn.
Section 3 ordered to stand part of the Bill.
SECTION 4.
On behalf of Deputy Keyes, I move amendment No. 6:—
To delete paragraphs (a) and (b), lines 30 to 36, and substitute the following words, that is to say: "nothing in this Act contained shall operate to affect the validity of such proceedings".
I have not had an opportunity of consulting Deputy Keyes as to his intentions in regard to this amendment. I think that what is involved is a question of phraseology.
Whatever Deputy Keyes may have intended to do, the effect of his amendment would be merely to validate the proceedings already taken. We have gone further than that. We have not merely allowed these proceedings to be continued but we have directed that the cases should be decided as if this amending Bill had never been passed. I think that Deputy Keyes did not realise that he was restricting, rather than extending, the effect of the section.
Amendment, by leave, withdrawn.
Section 4 ordered to stand part of the Bill.
Title agreed to.
Bill, as amended, reported.
Report Stage fixed for Tuesday, 28th March.