I do not know if it is desired to discuss these amendments separately. Perhaps I should explain that the majority of the amendments relate to matters which were raised on different stages in the Dáil, matters which I promised to look into further. For example, the Dáil will recall the discussion on the substitution of the term "multiple factory" for the term "tenement factory". I undertook to look into that matter further when it was in the Dáil and, in the Seanad, I introduced the necessary amendments. My decision to do that was responsible for amendments Nos. 2, 3, 4, 12, 13, 14, 15, 16 and 17. Other amendments also were a carry-over from discussions which took place in the Dáil and still some more amendments were amendments which I accepted in the Seanad and which, in the main, represented agreement from all sides of that House.
Factories Bill, 1954 (from the Seanad).
Mr. Lemass
Would the Minister say a few words of explanation on amendments Nos. 5, 7 and 18?
The amendments will be dealt with in the ordinary way.
SECTION 1.
I move that the Committee agree with the Seanad in amendment No. 1:—
The following sub-section added to the section:—
(4) Notwithstanding sub-section (2) of this section, Section 127 of this Act shall come into operation on the passing of this Act.
I move that the Committee agree with the Seanad in amendment No. 2:—
In sub-section (1), page 7, the following definition inserted before the definition of "owner":—
"multiple factory" means any premises where mechanical power from any prime mover within the close or curtilage of the premises is distributed for use in manufacturing processes to different parts of the same premises occupied by different persons in such manner that those parts constitute in law separate factories;.
I move that the Committee agree with the Seanad in amendment No. 3:—
In sub-section (1), the definition of "tenement factory" deleted.
I move that the Committee agree with the Seanad in amendment No. 4:—
In sub-section (4), page 10, line 44 and line 45, "tenement" deleted in both places and "multiple" substituted in each case.
I move that the Committee agree with the Seanad in amendment No. 5:—
In sub-section (2), paragraph (c), line 50, "and have not been incurred in or about any unsuccessful legal proceedings" added after "person".
The question was raised in the Seanad about the right of the Minister to recover costs against the sanitary authority where the Minister, having taken action in the courts in default of action by the sanitary authority, was subjected to expenses because of his action in that respect. As it stood, the Bill provided that even if the Minister were unsuccessful in his action in court he could still recover costs in respect of the unsuccessful action in the courts against the sanitary authority.
It was urged in the Seanad that the decision of the local authority to decline to take action might be due to a belief on their part that action was not warranted and that if the Minister then moved in, despite the decision of the local authority, to take action against what was believed to be a defaulting occupier of a factory and if the Minister were unsuccessful it would be unreasonable for him, having been unsuccessful in the courts, to try to recover the costs from the local authority of his unsuccessful action in the courts.
As the issue is probably not likely to arise often, if at all, I agreed to move an amendment making it clear that the local authority, in that case, could not be made amenable for the Minister's costs when the Minister's action in the courts was not sustained by the courts.
Mr. Lemass
I will not press that point of view to the extent of making the Minister go back to the Seanad to argue it there, but the Bill was drafted to provide that, in the event of default by the sanitary authority in the discharge of their functions under the Act, the Minister's inspector could go in and take proceedings and enforce the regulations and bill the sanitary authority with the costs, if costs arose. As it now stands, the inducement to the sanitary authority not to take any action is very strong because, if they do not do it, the inspector will do it and if the action fails the sanitary authority can be at no expense. It seems to me that, by this device, it is made practically certain that the sanitary authority will not proceed to take legal action even where it is required, leaving it to the Minister to do so.
I should have thought that the other direction would have been wiser to take and warn the sanitary authority that if they fail to enforce the law, and the Minister has to step in, they will be liable for any costs even if the action is unsuccessful. It may be argued that the sanitary authority should not be liable for costs in an unsuccessful action taken against their will, but the whole purpose of the section is to ensure that somebody will have power to take proceedings if the sanitary authority refuse to do so.
It is only when, having taken the action, he fails: it is only when the Minister fails because the court feel there is no transgression of the Act.
Mr. Lemass
Nobody suggests that the Minister will taken vexatious actions. He will taken action only where the Attorney-General says action should be taken and when he is likely to succeed. There was little likelihood of a sanitary authority being billed with costs under the section as it stood unless the court held that the intention of the Oireachtas, as expressed in the Act, was different from what we now assume it to be. By this provision here, it is made almost certain that the sanitary authority, looking to preserve their own funds, will never take proceedings. They can put the Minister in the position of having to take these proceedings, knowing that, even if the proceedings are unsuccessful, the sanitary authority can never be liable for the costs.
There was the argument that, after all, the reluctance of the local authority to take action might be due to a conviction on their part, reinforced by their legal adviser, that there was not sufficient evidence to sustain a prosecution in a certain case. They might say: "We do not feel justified in taking action in this case because we are advised there is no breach of the Act or of the regulations." If, however, the case goes to court and the court decide against the Minister for Industry and Commerce I think it might be argued that the Minister for Industry and Commerce, having moved in against the advice of the local authority, reinforced by their legal adviser, and losing the case in court, should not ask the local authority to underwrite his tenacity in going ahead in circumstances which the court decided did not justify any prosecution at the instance of the Minister.
Mr. Lemass
The power to take the case himself is given to the Minister because we suspected that local sanitary authorities might not be as vigilant in the enforcement of the Act as the Department's inspectors. Is it not almost certain that a sanitary authority will tell their legal adviser to advise them that there is risk associated with the action and to let the Minister carry that risk? This is putting the pressure in the opposite direction to that which we intended. We wanted to ensure that the sanitary authority would have no inducement to fail to take action but now there is every inducement not to take action.
I do not think so. I would hope that all actions taken would be successful, in which case the local authority would pay.
I move that the Committee agree with the Seanad in amendment No. 6:—
In sub-section (18), page 33, the following paragraph added:—
(e) a factory as respects which the factory premises are part of premises of which another part is used as a dwelling.
I move that the Committee agree with the Seanad in amendment No. 7:—
In sub-section (2), page 41, line 63, ", after consultation with the Minister for Health," inserted after "Minister".
Mr. Lemass
Why should the Minister for Health be brought in there? I do not see that he has any special function.
This was put in to meet a request made by the Department of Health that they should be consulted in the matter before the exemption was granted. They felt they had a point of view to express in respect of basement bakehouses. The request for consultation with them was not based upon a desire to weaken the section as it stood. I think the Deputy knows that the view of the Department of Health was that the bakehouses generally should go entirely. They felt this was a matter on which they might be consulted and this amendment gives them that right in such a case. There is no limitation —it is merely consultation.
I move that the Committee agree with the Seanad in amendment No. 8:—
In sub-section (3), page 42, line 3, "not exceeding five years," deleted and "(being, in the case of a basement bakehouse other than a basement at least one side of which is not below ground level, a period not exceeding five years)," substituted.
I move that the Committee agree with the Seanad in amendment No. 9:—
In sub-section (1), "safety and health" in page 44, line 62, and in page 45, line 3, deleted and "safety, health and welfare" substituted in each case.
I move that the Committee agree with the Seanad in amendment No. 10:—
In sub-section (1), page 45, line 5, "on matters affecting the safety, health and welfare of the persons employed (being representations made on the request of the safety committee)" inserted after "delegate".
I move that the Committee agree with the Seanad in amendment No. 11:—
In page 47, "counsel, solicitor or agent" in line 14 deleted and "counsel or solicitor" substituted and "or friend" inserted in line 17 before "of the person".
I move that the Committee agree with the Seanad in amendment No. 12:—
In sub-section (1), page 50, "tenement" in line 17 deleted and "multiple" substituted, "tenement" in line 29 deleted and "separate factory" substituted, and "tenement" deleted in line 47 and "multiple" substituted.
I move that the Committee agree with the Seanad in amendment No. 13:—
In sub-section (2), page 50, "tenement" deleted in line 50 and "multiple" substituted and "tenement" deleted in line 52 and in line 54 and "separate factory" substituted in each case.
I move that the Committee agree with the Seanad in amendment No. 14:—
In sub-section (3), page 50, line 56, "tenement" deleted and "multiple" substituted.
I move that the Committee agree with the Seanad in amendment No. 15:—
In sub-section (4), page 51, line 13, "tenement" deleted and "multiple" substituted.
I move that the Committee agree with the Seanad in amendment No. 16:—
In sub-section (5), page 51, line 18, "tenement" deleted and "multiple" substituted.
I move that the Committee agree with the Seanad in amendment No. 17:—
In sub-section (1), page 51, lines 19 and 20, "tenement" deleted and "multiple" substituted.
I move that the Committee agree with the Seanad in amendment No. 18:—
In page 53, lines 37 to 62 deleted and in page 54, lines 1 to 14 deleted.
Mr. Lemass
Will the Minister explain what the position will be? As it stood, an inspector under the Factories Act could not go into a reformatory school except in accordance with the provisions set out here. An inspector would not have the right to consult with an inmate of the school without one of the masters or the head of the reformatory being present. Generally it was intended that the enforcement of the Factories Act in the reformatory schools—where they are not really applicable at all—should be done only where there was obvious need to do so and then in consultation with the authorities in charge of the school. Now all that has been taken out and, so far as I can see, the sole provision of the Act will be that the Minister's inspectors will have the right to enforce these regulations and provisions in any reformatory school. I presume the Department of Education has been consulted before this change was made and I would like to know if that is so and if it has agreed with this desire that the inspector, for example, should have the right to go into a reformatory school, discuss with any person any matter affecting the carrying on of business in the school, without any masters or people responsible for the school being present.
The Bill as it stood when it left this House provided that certain institutions where certain things were made were in fact factories, whether they were factories or not, for the purpose of the application of the provisions of the Bill, subject to certain modifications. The modifications—which I have since deleted—provided that the Minister for Industry and Commerce might, if he so decided, appoint the medical officer of the institution as the certifying doctor for the purposes of the Bill, that is, for the examination of persons engaged in the activities carried on there and, secondly, before the inspector could interview an inmate of the particular institution it would be necessary that he should get the permission of whoever was in charge of the institute, if whoever was in charge had previously indicated that he desired to be consulted when an inmate was being interviewed. But, again, the Minister could dispense with that requirement, that is, in both cases.
These two provisions were in the 1907 Factories Bill and they have operated down through the years. They have operated for so long, in fact, that that has been the established practice in dealing with bodies such as the institution which this section is intended to cover, but which it does not precisely define.
I accepted an amendment to delete these two provisions—firstly, because I thought they were inconsequential and I thought it was not necessary to write them into the Bill in a definite kind of way. The first modification that we might contemplate, the appointment of the medical officer of the institution as the certifying doctor —that can happen whether the section is in the Bill or not.
On the second question, as to who interviews the inmates in the particular institution, I presume that in the exercise of ordinary intelligence, the inspector who desires to interview a person there, would call to see whoever is in charge and say he wants to interview such and such a person. He then, if he wishes, would interview the person in the presence of whoever was in charge. That requirement has been discontinued in the Bill and the inspector can if he wishes—and if he does not wish he need not—see the inmate without whoever was in authority being present. I think that has to be left to the good sense of the inspector.
So far as the reformatory and industrial school are concerned, sub-section (2) says that this Act shall not, except in so far as the Minister may by Order direct, apply to any premises which do not constitute a factory, if the premises are subject to inspection while under the authority of a Minister of State. If, as happens at present, reformatories and industrial schools are subject to inspection, and indeed control, by a Minister of State, then this Act does not apply to them. That was the Bill as originally introduced and that section still stands. It is not proposed in these cases that there should be any interference there, nor should this Bill apply to such cases unless the Minister makes a specific Order. That was the provision of the Bill as originally introduced in the House. It still remains in the Bill.
I move amendment No. 19:—
Sub-section (4), page 57, deleted and the following sub-section substituted:—
(4) Any person undertaking any such building operations to which this Act applies as may be declared by regulations of the Minister to require notice under this sub-section shall, not later than seven days after the beginning of the operations, serve on the Minister a written notice stating the name and postal address of the person so undertaking the operations, the place and nature of the operations, and whether any mechanical power is or is to be used and, if so, its nature.
Mr. Lemass
This is the section where, the Minister will recollect, we had difficulty in determining the type of building operations to which this obligation to notify the Department of the commencement of work would attach. There was originally in the Bill a limitation relating to the length of time during which building operations were carried out. The person doing the work was not required to notify the Department unless it was anticipated the work would last more than six weeks. I argued also that there should be a further limitation in regard to the number of people employed on it. The Minister has taken all that out and will have power to administer by Order. From the drafting point of view, that is probably a cleaner way.
In so far as the problem discussed has not yet been solved, I think the Minister should give an indication of the type of Order he has in mind to make. I argued before, and I still think it is desirable, that we should not put in this obligation to notify the Department of the commencement of building operations unless the building operations are on a reasonable scale, that it should not apply to a farmer having an outhouse built for his farm or someone having an extension built to his home. It would be unwise to put upon those people obligations to notify the Department, because the majority will not do it and it is always wrong to have a law on the Statute Book which people are disposed to ignore.
I take it the Minister is accepting that point of view that there is need to give notification—and presumably it will be followed by inspection—only when building works of reasonably substantial size are in contemplation. I am agreeable to the amendment which enables the Minister to deal with this by Order, because it permits the Minister to change his hand if the Order appears to require amendment, rather than try to deal with the matter by statute. I think it would be no harm for the Minister to say what type of Order he has in mind.
This amendment is really an effort not only to make the section work better and make it more flexible than when it was originally introduced, but it is a desire also to meet the point of view expressed by the Deputy in this House and at the meetings of the Special Committee on this particular section. In a given set of circumstances, the number of men employed does not matter very much. You must consider many things, not merely the number of men employed and the duration of the work but the kind of job they are doing.
For instance, I do not think it would matter very much if 60 people were concreting a street. Possibly nothing very much could happen in a case like that but it probably would be serious if four men were up on a scaffold surrounding a spire because the risk of something happening there would be great; whereas, unless they tripped over one another, nothing much is likely to happen if they are concreting a flat surface. Similarly, if workers are opening a trench to a depth of a foot or two, it is probably not serious but if they open a trench to the extent of ten feet and are down at the bottom, you would want to make sure it is properly shored. There the need for notification and inspection arises much more urgently than in regard to the shallower trench.
These are some things which have occurred to me but there would be such a variety of cases to be legislated for that I do not think we can do it satisfactorily by relating it to an arbitrary number, of say six people, employed or an arbitrary duration of the job, say six weeks. What I propose to do is to try to make a regulation which might apply to a variety of jobs having regard to the risk involved. The Deputy will have seen that during the passage of the Bill through the Seanad I asked that I should be given power to appoint the advisory committee after the passing of the Act instead of at the commencement of the operation of the Act. My object there was that the committee might participate in the consideration of the regulations which will be prepared for cases such as these and regulations covering every section of the Bill.
What I was proposing to do was to invite the co-operation of the committee representative of workers and employers and say: "Here is what we think should be done in that particular matter. Here is the regulation by which we propose to give effect to our intentions. Will you let us have your views?" We would, therefore, be guided by the practical experience of people who every day in the week are responsible for planning jobs of that kind and seeing that they are properly carried out. The aim is to keep away from needless inquisitions into small jobs and only to carry out the inspections where the job is one which involves danger to health or to the safety of the workmen concerned.
Mr. Lemass
If I understand the Minister rightly, the regulations will apply only where machinery is used, where scaffolding is used or where trenches are being due to a depth which might involve danger to the workers concerned. I think he is right in that. He must confine his regulations to specific matters with which factory inspectors can deal; they can see if the machinery is properly fenced, if scaffolding is safe and trenches are properly shored; in certain cases they might have to consider the provision of protective clothing. But it is only in cases of that kind that the inspector can be effective and it is only there, in my opinion, the regulations apply.
I move that the Committee agree with the Seanad in amendment No. 20:—
Sub-section (4), page 58, deleted and the following sub-section substituted:—
(4) Any person undertaking any such works of engineering construction to which this Act applies as may be declared by regulations of the Minister to require notice under this sub-section shall, not later than seven days after the beginning of the works, serve on the Minister a written notice stating the name and postal address of the person so undertaking the works, the place and nature of the works, and whether any mechanical power is or is to be used and, if so, its nature.
I move that the Committee agree with the Seanad in amendment No. 21:—
In sub-section (5), page 71, line 34, "commencement" deleted and "passing" substituted.
Amendment No. 21 is conseqential on No. 1.