Perhaps we could discuss amendment No. 2 with amendment No. 1.
Redundancy Payments Bill, 1970: Report and Final Stages.
I move amendment No. 1:
In page 2, between lines 11 and 12, to insert the following new section:
2. — In relation to an employee whose employment is terminated by reason of redundancy on or after the commencement of this Act, any provision of the Principal Act or this Act which affects or relates to the preservation of continuity of the employee's employment shall apply to periods of employment before the 1st day of January, 1968, as they apply to such periods after that date.
I indicated on Committee Stage that I was sympathetic to the Labour Party amendment which has now been retabled as amendment No. 2, subject to the understanding that it will apply to cases occurring after the commencement of the amending legislation. This is the marked difference between the amendments. My amendment repeats the terms of the Labour Party amendment with the addition of the opening words which give effect to reservations mentioned by me on Committee Stage. I hope that, having regard to this Government amendment, the Labour Party will withdraw their amendment. I think my amendment meets the case fully with the exception of the slight change in the original words.
We are pleased to note the Minister's amendment because it reconfirms the application of certain provisions of the Act to existing employees. We are pleased to note that the Minister has accepted our suggestion in relation to continuity of employment. This is a general principle which the Labour Party have advanced throughout the discussion on the Bill. We should point out that it does not contain retrospection for what we classify as deprived employees. In the circumstsances we are not anxious to withdraw amendment No. 2. Perhaps it can be further considered in the Seanad. We are anxious to facilitate the Minister in getting the Report Stage through today, but we suggest that if both amendments were accepted by the Minister this would strengthen and connect the statutory means of preserving continuity of employment. This is the basic idea behind our amendment. As I said, we are not anxious to withdraw amendment No. 2 at this stage.
If amendment No. 1 is agreed, amendment No. 2 cannot be moved.
Perhaps with amendment No. 3 we could take amendment No. 44. If the House agrees, amendments Nos. 3 and 44 can be discussed together.
I move amendment No. 3:
In page 2, between lines 11 and 12, to insert the following new section:
"The Principal Act is hereby amended by the insertion of the following new section before section 3:
‘The provisions of this Act in relation to a payment to an employee (or eligibility for a payment) shall have effect from 22nd January, 1971 provided that the difference between a payment under this Act and the payment (if any) under the Principal Act, in the period between 21st January, 1971 and the commencement of this Act shall be paid from the Redundancy Fund'."
Again, we come back to the overall attitude of the Labour Party that we should have included in this Bill a provision which would prevent employers from deliberately avoiding the provisions of the Bill. We maintain this happened in relation to the original Act. Our amendment is designed to ensure that the new benefits will apply from 21st January, 1971. If the Minister accepted this amendment, together with amendment No. 44, we feel that this would quite effectively prevent any employer from avoiding the provisions of the Bill and thus damaging the normal entitlement to redundancy. I do not entirely agree with the Minister's attitude that it is unlikely that anybody would, as he said before, jump the gun. I do not entirely accept the view that, perhaps, there may be a few hard luck cases. The purpose of our amendment is to prevent any deliberate circumvention of the provisions of the Bill. Fixing a date, 21st January, 1971, from which payment shall be made from the Redundancy Fund would be of immense benefit to this legislation.
I presume we are discussing amendments Nos. 3 and 44 together. The amendment suggests that the reduction in the qualifying period from four to two years should be applied retrospectively from the 22nd January, 1971 with all the consequential payments arising being borne by the Redundancy Fund. This was debated at length on Committee Stage and although I expressed my complete opposition to the principle of retrospection on that occasion I did agree to have a further look at the question. In the meantime, I have seen no reason to change my view. The further examination which I have made has served only to strengthen my conviction that retrospective application of benefit should not be accepted. The principle is a bad one and its implementation could operate quite unfairly, give rise to numerous anomalies and grievances and I have established in this particular case that it would have serious financial implications for the Redundancy Fund. These are the practicalities of the matter.
I fully accept the point made on Committee Stage that some people will lose benefit because their dismissals took place between the 22nd January and the date on which the Bill when enacted will come into operation. I have as much sympathy for the position of these workers as Deputies opposite but there would be hard luck cases no matter what dates were chosen. One always has these. It is a question of hoping that they will be at a minimum. Some time must elapse between the circulation of a Bill and the enactment of it and nothing which Deputies have said would justify the backdating of the provisions of the Bill to cover persons declared redundant during that period.
In relation to the financial position I mentioned on Committee Stage that while there was a surplus in the fund it was not such that it could be played around with to the extent of conceding retrospection. Further examination since the Committee Stage has revealed that assuming retrospection were to cover the period 22nd January, 1971 to, say, 1st July, 1971, the cost would be rather high, more than the fund could afford. Together with the future cost of the improvements proposed in the Bill this could seriously undermine the position of the fund. On Committee Stage I did point out that while we would appear to be making generous provision for the surplus to cover the improvements in this Bill, the Act has not been sufficiently long in force to enable us to be quite certain that this surplus is likely to stand up to any future erosion and events since the beginning of the year — we have had quite a number of redundancies — would justify the decision I made at the outset. As time goes on we will see that the surplus built up could be quite necessary.
As I said on Committee Stage the more industries one has the more redundancies one has. I could foresee in years to come, when we have more industries, more mobility of people, more changing and chopping, that we might even find it necessary to raise the contribution to meet the requirements of this amending legislation. I am quite serious when I say that we are straining the fund as much as possible without taking in retrospection and I am compelled to stand out against any retrospection in the Bill.
For various reasons there has been considerable delay in the Bill going through the House. It still has to go to the Seanad and if amended there come back to the Dáil. In those circumstances would the Minister not agree that a date other than that of the passing of the Bill should be set? Would the Minister be prepared to accept the date of the conclusion of the Report Stage in the Dáil?
If I were accepting retrospection at all the date suggested here would be the most logical one.
Would the Minister——
I am sorry, Deputy, but we are on Report Stage——
I am sorry, I also forgot that.
——and Deputies are allowed to speak only once, except for the mover of the amendment, if he wishes.
The latest information we have about the Redundancy Fund is that there is £1.75 million in it. The fund therefore would appear to be in a somewhat healthy condition. We in the Labour Party are very concerned, in relation to a Redundancy Bill published in July, 1970 and not likely to have passed through both Houses until July, 1971, after which it has to go for Presidential signature, that a substantial number of workers who would normally benefit from the improved benefits under the Bill will not obtain them. Our suggestion is that the commencement date should be the 21st January, 1971, which is fair and reasonable. Indeed, as Deputy Cluskey pointed out we are not averse to accepting a later date, such as that on which the Report Stage is concluded, which we hope will be today. I make this point because of the legislative mess-up which has occurred in the Houses of the Oireachtas and which is not the responsibility of the Labour Party. We therefore feel there should be some finality in regard to the commencement date and accordingly we ask the Minister to consider the matter again.
On the amendment——
I am sorry, Deputy, but Deputy Desmond has just concluded on the amendment.
I move amendment No. 4:
In page 3, between lines 14 and 15, to insert the following new section:
4. — The following subsections are hereby inserted in section 4 of the Principal Act and shall be deemed to have been enacted in that Act:
"(2A) If an employee was or is in continuous employment on or subsequent to 22nd January, 1971 and his normal weekly hours of work in the period of 208 weeks ending on 22nd January, 1971 were not less than 21 hours, but were reduced below 21 by reason of redundancy, or in periods of redundancy, that employee shall be deemed to have been employed for at least 21 hours per week on 22nd January, 1971.
(2B) Payments (if any) to employees affected by subsection (2A) by reason of redundancy before the commencement of this Act shall be made from the Redundancy Fund."
This is to deal with the phenomenon known as creeping redundancy, a piece of jargon coined by the Redundancy Appeals Tribunal and used in Britain, Northern Ireland and here. As we pointed out previously we can have a situation where over a considerable period a worker may be in continuous employment but his normal weekly working hours will be less than 21 per week. The employer may possibly, anticipating future redundancy, reduce the hours of work of the employee below 21 hours. The hours may be reduced also by redundancy itself or by periods on short time and subsequently a worker becomes disqualified for redundancy payments. This is the intent of amendment No. 4 and we have already given to the Minister a number of cases in relation to Noonan v. Dwyer and Deasy v. the B and I as illustrations of particular cases where the Redundancy Appeals Board commented on this matter. We have accordingly tabled amendment No. 4.
This amendment is similar to one which was defeated on Committee Stage. As I explained then, it was never intended, when the 1967 Act was passed, that persons who were not normally expected to work for the same employer for the requisite number of hours at the time should be covered by the Act. This amendment would involve a lesser degree of retrospection than the Committee Stage amendment but it, nevertheless, provides for some retrospection from a date three years prior to the 22nd January. I must oppose this amendment, in conformity with my decision regarding retrospection generally. I should like to state again that the position at the 1st January, 1968 and the category of workers to which the amendment applies is already adequately covered in the existing legislation. Under the Act, as it stands, employees whose hours of work with the same employer are substantially reduced to less than 21 hours in a week are entitled to claim redundancy payments on the basis that the conditions of employment have worsened. Employers cannot, therefore, deliberately evade responsibility under the Act. They cannot evade responsibility by progressively reducing the working hours of the employees, if this is what the Deputy dealt with when speaking of creeping redundancy. If they do this, they leave themselves open to immediate claims for redundancy payments.
Provided claims are made but if somebody does not exercise his right he will not benefit.
I must assume from the provisions of this amending Bill that we have made it easy for everybody to ensure that his claim is lodged. I have very little worry on that score.
I move amendment No. 5:
In page 3, between lines 14 and 15, to insert the following new section:
4. — (1) Without prejudice to the generality of subsection (1) of section 9 of the Principal Act, an employee shall be entitled to terminate his contract of employment in circumstances of uncertainty in which it is reasonable for the employee to anticipate dismissal for redundancy (whether or not he has received notice of dismissal or protective notice of dismissal or lay-off) if it is reasonable for the employee to expect that his remaining in the employment would seriously prejudice his prospects of obtaining suitable alternative employment which became available and was unlikely to remain vacant.
(2) Where, in the circumstances specified in this section the employee has received an offer in writing from the employer and on a reference to the Tribunal it appears to the Tribunal, having regard both to the reasons for which the employee seeks to leave the employment and those for which the employer requires him to continue in it, to be just and equitable that the employee should receive the whole or part of a redundancy payment, the Tribunal may determine that there shall be paid to the employee —
(a) the whole of the redundancy payment to which the employee would have been so entitled, or
(b) such part of that redundancy payment as the Tribunal thinks fit.
Here, again, we are back to a proposition which we put to the Minister on Committee Stage. Under amendment No. 5 we want to give protection to employees in what might be regarded as a situation of constructive redundancy, if I might use that phrase. Where a person legitimately and in perfectly good faith anticipates that he is going to be declared redundant, and where his employer also is aware that at a future date he will be obliged to declare an employee redundant and where that worker acting in a perfectly normal, legitimate manner obtains alternative employment he should not automatically lose his redundancy benefit. Deputy Cluskey and I have spoken very strongly on this matter. We had the support of Deputy P. Belton on Committee Stage. We pointed out that there is provision in section 20 of the Northern Ireland Act whereby an employee should be entitled, without prejudice, to terminate his contract of employment in general circumstances where he can reasonably anticipate dismissal by redundancy and, at the same time, he would not in any way, under the circumstances, lose his entitlement. I put it to the Minister that in circumstances of industry in modern Ireland with the relevant scarcity of vacancies we should try in redundancy legislation to ensure that workers who are anticipating redundancy are given every incentive to obtain suitable alternative employment as and when it becomes available, particularly where it can be said that a job might not be held vacant for a period and where a worker knows that there is a vacancy, and also that his own employer has not yet declared him redundant. Such a worker should be in a position to go to an employer and the employer may say: "Yes, you will be redundant in two months time, but I will now declare you redundant. You then proceed to alternative employment and you obtain your redundancy compensation."
I have found it difficult to get across to a large body of opinion, and even to trade union opinion, that because a worker changes a job he automatically gets redundancy payment on the basis of being declared redundant, and although he proceeds immediately to alternative employment he qualifies for redundancy payment by virtue of the length of service and the social rights which he had accumulated in that job, and he gets redundancy payment on being redundant and on moving from one job to another. Most people say: "He has a job. Why should he get redundancy payment?" This is not the purpose of the Redundancy Payment Act. It is to give people a terminating entitlement which they are entitled to by virtue of accumulated social rights in their employment in a payment of a transfer nature or in some cases where it must be a payment of an almost terminating nature where they might not be able to get employment subsequently.
Therefore, this provision in amendment No. 5 is in section 20 of the Northern Ireland Act. We have taken it straight from that Act. It is a transcription from it and the lengthy amendment which we have down would make the whole Bill more flexible. It would give employers a greater incentive to be utterly honest with their employees and to tell them precisely what their prospects are in the future. It would enable workers anticipating redundancy to obtain alternative employment as soon as possible and in circumstances which would be socially acceptable and of benefit to Irish industry, to employees and to employers in Irish industry.
During the Committee Stage debate on this amendment, I expressed my very strong opposition to the amendment on a number of grounds. At the same time, I undertook to consider the matter further and having regard specifically to statements made by the Labour Deputies that provisions similar to those in the amendment were contained in Northern Ireland redundancy legislation. I have since confirmed, as I thought when this matter was being discussed previously in the House, there are no similar provisions in the Northern Ireland Act. The Act contains a section which provides for the award of full or partial redundancy payments to employees, but in circumstances that have no relation to those described in this amendment. In fact, the section in question applies to employees who have already received notices of dismissal or redundancy or who have themselves served notices of intention to claim redundancy payments by reason of lay-off or short time, who then take part in strikes and are summarily dismissed by their employers because of participation in strikes. The only resemblance between the amendment and the section of the Northern Ireland Act is that both provide for the award of partial redundancy payments by tribunals. I pointed out on Committee Stage that, apart from the other objections to the amendment, I am opposed to fragmentation or partial redundancy in any case. The only thing the amendment and the Northern Ireland Act have in common is that the amendment provides for partial redundancy and the Northern Ireland Act, in different circumstances, also provides for partial redundancy.
The amendment is related to situations in which employees terminate their employment, whereas the section of the Northern Ireland Act applies to cases of summary dismissals by employers. Accordingly, there is no case for accepting the amendment by reference to legislation in Northern Ireland and I cannot accept the amendment.
Amendments Nos. 6 and 7 may be taken together.
I move amendment No. 6:
In page 3, line 30, after "before" to insert ", on or within four weeks of".
Amendment No. 6 arises as a result of amendment No. 9 tabled by the Labour Party on Committee Stage, a revised form of which has been tabled for Report Stage as amendment No. 7. I accepted the general principle of the earlier amendment which was designed to cover cases where offers by the new holders of agencies, franchises,et cetera are made shortly after the employee's contract with the previous owner has been terminated, as well as before termination. I indicated that I thought it would be desirable to place some time limit—for example, four weeks from the period after the employee's contract with the previous owner is terminated—during which an offer might be made by the new owner. My amendment deals with the matter on the basis of four weeks, which I hope will be acceptable to the Labour Party in view of the terms of their revised amendment. A period of four weeks is featured throughout the Bill and I think this is reasonable. I think I am meeting more than half-way the Labour Party amendment No. 7.
We appreciate the Minister's attitude. Both amendments are acceptable to our party.
I move amendment No. 8:
In page 3, between lines 41 and 42, to insert a new subsection as follows:
"(3) Where an employee is or was employed by a sub-contractor who (under contract or otherwise) is liable to another person (in this section referred to as the principal) and that employee is subsequently employed by the principal, the employee's continuity of employment shall have effect as if the sub-contractor and the principal were the same person.
‘Contract' includes a contract or arrangement—
(a) to carry out work or operations of any kind,
(b) to be answerable for the carrying out of such operations by others whether under sub-contract to him or under other arrangements made, or to be made by him, or
(c) to furnish his own labour or the labour of others in the carrying out of such operations."
This amendment is one we wish the Minister to consider seriously. The amendment is designed to give protection where an employee is, or was, employed by a sub-contractor and liable to another person. When the employee is employed subsequently by the principal, the employee's continuity of employment should have effect as though the sub-contractor and the principal were the same person. On Committee Stage we pressed this matter and we are surprised that the Minister has not seen the merit in the general proposition. There are tabulated a number of instances where this kind of development took place, where an employee was told one day that his contract of employment was terminated and that the company was gone. On the following day a new company took over and the man continued working with them. Automatically, this man was not covered under the Act and we brought to the notice of the Minister a number of such instances where manifest injustice had occurred from the point of view of redundancy. On Committee Stage Deputy Belton supported our amendment and he gave the example of a painting contractor who was doing a job for a builder, or even a builder if he was sub-contracting.
This amendment is worthy of support. The Minister should do everything possible to try to cover the loopholes which exist. If this is not done any unscrupulous individual who may wish to do so may take advantage of this situation. One meets such individuals in every walk of life and the law has an obligation to provide elementary protection.
I should like to support this amendment. Examples mentioned by Deputy Desmond occur frequently in the building industry— perhaps more than in any other industry. Frequently an electrician, a plasterer, a plumber, or a painter may take over a contract, they underestimate the cost and straight away they are out of business. In some cases the builder might take over the men and employ them directly or allow someone to come in and employ them. The proposers of this amendment are quite correct and I would ask the Minister to consider the amendment. In addition he could make inquiries from builders and he will find out that the cases I have mentioned occur frequently. In any building job it can happen once or twice with different sub-contractors.
When this amendment was debated on Committee Stage, I indicated I could not accept it and I gave many reasons for my decision. Therefore, I am surprised at the view expressed by Deputy Desmond. My reasons were that it would be unfair to compel employers legally to assume liability for employees of sub-contractors over whom they have no control. Such employees have been safeguarded since the 1967 Act. I do not think there is any real reason for taking this amendment seriously. As far as I have been able to ascertain it would be most unfair to ask employers to take responsibility for the employees of sub-contractors over whom they would have no control anyway. It appears that there was some confusion regarding this matter on Committee Stage and Deputy Tully pressed it very strongly. Without committing myself, I promised then to have a further look at the matter but having done so, I can see no reason why I should change my mind. While such a provision could seriously inconvenience employers, the employees in question are adequately covered. This is a very important part of the whole approach and for that reason I cannot accept the amendment.
I move amendment No. 9:
In page 3, between lines 41 and 42, to insert the following new section:
(1) Where before, on or after 1st January, 1968, an employee was employed by a Company which was wound up, liquidated, sold or otherwise ceased business or ceased to employ the employee, and the owner, or a director, or a person who had a controlling interest in that Company, dismissed an employee in circumstances of redundancy and within 52 weeks renews the employee's contract of employment or re-engages the employee under a similar or new contract with another Company of which he is the owner, director or has a controlling interest, the employment of that employee shall be deemed to have been continuous.
(2) Payment (if any) to employees affected by this section who were dismissed by reason of redundancy before the commencement of this Act shall be made from the Redundancy Fund.
We are surprised that it is necessary for us again to press the content of amendment No. 9. Surely the Minister will agree that, as outlined directly in the amendment, where employees were employed by a company that was sold, went into liquidation or otherwise ceased business, the employees would lose their redundancy entitlement. There have been instances of this having happened. Take, for instance, a building contractor aware that at a future date he might find himself going into liquidation or putting up the whole job for general takeover. If workers continue to work for him up to the last day of his association with the business they will find, if they report for duty next morning, that they have a new employer. The new employer might well be the wife or the son of the contractor but the company becomes automatically a new company in questionable circumstances. The employees of such a firm would lose their redundancy entitlement. Surely this is a situation in respect of which the Minister should have introduced an effective amendment. We have cited the case of Hehir v. J. and G. Murphy of Cork. I mention those names merely as a case study. There were other instances given to the Minister such as the case of Darby v. Jacobs. Although the Minister may plead that this provision would be contrary in some respects to the concept of limited responsibility in common law, in the case of any employer who goes out of business or any company that is sold or that goes into liquidation or otherwise, not only a moral obligation should be inherited by somebody who continues to have a controlling interest in the new company or who is involved in it but a very definite obligation should be put into statutory form. Otherwise, the irregularities which the Minister referred to on Committee Stage may occur. The Minister said that we could be legislating here to overcome the irregularities or malpractices of a few people. Surely that is the purpose of legislation. If this particular amendment is not accepted it is possible that the preservation of the continuity of employment will not be given the kind of protection that we consider to be desirable. Accordingly, we recommend the amendment strongly to the Minister.
I would support this amendment to a certain extent only. I say this because in the case of a person who owned a business or who had a controlling interest in a business, he should be regarded as having been associated with the business that was liquidated if he continues to have a controlling interest in that business. However, I disagree that in the case of the director of a company there should be the obligation on him of the continuity of employment. There have been many cases where people have been nominated to serve as a director on the board of a company because of their particular knowledge or business ability but who might have no shares whatever in the company. Therefore, I do not think the word "director" should be included here. Otherwise I would support the amendment but I do not think that either the Minister or anybody else could support it while the word "director" is included as well as the owner and a person having a controlling interest. This would be against the interest of companies and, indeed, against the country generally. I agree with the part of the amendment which refers to an employee being entitled to continuity of employment in the case of the owner of the company or a person having a controlling interest in it. The Minister should consider the amendment in this light.
This is another amendment that was debated at considerable length on Committee Stage. While I agreed to have another look at it, I am afraid I must say that I cannot find any reason for accepting the terms of the amendment. I must still oppose it because, if accepted, it could have very serious implications for employers.
The amendment is objectionable in principle for two reasons as has been stated already by Deputy Belton. It is contrary to the concept of limited liability—a concept that is basic to company law—and also it is objectionable because it seeks to impose liabilities with retrospective effect. In practice, too, the arrangement proposed in the amendment would penalise those very persons who try to help workers if they lose their jobs. Companies ceasing business for one reason or another usually try to find employment for the employees and the majority of companies are very helpful in trying to absorb employees who have been made redundant. There may be isolated cases where persons would set out deliberately to use the situation in order to save themselves but we cannot legislate for exceptions in a way that would victimise the majority. It is impossible to have watertight legislation. A person inclined towards circumventing the terms of the Bill will always find a loophole. I do not think we would be justified in making a provision for what might be an isolated case and I cannot therefore accept the amendment.
I move amendment No. 10:
In page 4, between lines 33 and 34, to insert the following new paragraph:
"(c) The Tribunal shall, after consultation with any person or body charged by statute with the fixing or determination of minimum wages or rates of pay, or the registration of employment agreements under the Industrial Relations Act, 1946, have regard to any such minimum as is appropriate or relevant."
Amendment No. 10 is a happy situation. When the Labour Party amendment No. 15 was being discussed on the Committee Stage. I indicated I had sympathy with the general intention behind it that the Redundancy Appeals Tribunal should in assessing redundancy payment entitlements have regard to pay rates which are binding under some particular Statute but I said I would have to look further at the wording. In particular I said I wanted to ensure that the Redundancy Appeals Tribunal would not be charged with the responsibility of deciding what the correct statutory minimum wage would be in an individual case. In other words this should remain the function of the appropriate wage-fixing body. There has been some misunderstanding as to what I had in mind when I expressed this reservation. I was not suggesting, as I feel may have been the impression, that the Labour Party amendment would empower the tribunal to fix rates of wages for individual workers or groups of workers. The point I did not think the amendment was not entirely clear on was whether it was intended the tribunal should be empowered to interpret the application of wage rates fixed by other bodies in individual cases. I do not consider the tribunal should be required to interpret orders in that way but it should consult the appropriate wage-fixing body as to what the correct statutory minimum wage is in each case. The amendment which I have tabled meets the general intention of the Labour Party amendment while making it clear that the correct statutory minimum wage rates would continue to be determined by the appropriate body in each case. In the circumstances, I am sure the Labour Deputies will welcome the official amendment. The amendment also covers wage rates specified in agreements under the Industrial Relations Act, 1946.
We welcome this particular amendment which we feel will be of benefit to the main provisions of the Bill. We have noted that a fairly large number of amendments put down by the Labour Party on the Committee Stage have since been accepted by the Minister.
Amendment No. 11 and amendments Nos. 16, 21, 22, 23, 27, 28, 30, 32, 34 and 37 are to be discussed together all of which are consequential and No. 27 is related.
I move amendment No. 11:
In page 4, between lines 33 and 34, to insert the following new section:
"The following section is hereby substituted for section 12 of the Principal Act:
‘12.—(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—
(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of 13 weeks, for a series of six or more weeks of which not more than three were consecutive, and
(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.
(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short-time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week's notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given."'
All these amendments are consequential amendments on No. 11. Government amendment No. 11 arises from my consideration of amendment No. 26 tabled by the Labour Party on the Committee Stage, which has now been retabled for the Report Stage as amendment No. 22. I accepted the general principle of the earlier amendment in the interests of simplifying procedures for employees who wished to claim redundancy payments by reason of lay-off or short-time. I said I would like to consider the drafting further as the provisions in the 1967 Act with which the amendment was concerned were rather complex and some consequential amendments would also be necessary.
Amendment No. 11 meets the general intention of the Labour Party amendment by providing that, in future, one notice from an employee to his employer, instead of two as at present, will be sufficient to set a claim in motion. The amendment does this in a slightly different way from that proposed in the Labour Party amendment but the end result is the same.
One point of difference between the two amendments which I might mention is that the Government amendment contains a provision under which a claim for a redundancy payment by reason of lay-off or short-time must be served within four weeks of the cessation of the lay-off or short-time, whereas the Labour Party amendment has no similar restriction. That is really the four weeks coming up again. The four-week limit is intended to cover cases where employees resume work after periods of lay-off or short-time. In practice, it does not apply to the situation where an employee after lay-off or short-time is finally dismissed by his employer. In such cases that would be determined under the ordinary provisions and procedures relating to claims rather than on the lay-off or short-time arrangements.
Neither would it affect the other type of situation which could arise for an employee, for example, where the lay-off or short-time is continued indefinitely. In such a situation, the employee would retain the right to claim a redundancy payment as the lay-off or short-time would still be in operation.
The four-week limit which was included in the 1967 Act in a slightly different form is necessary and desirable to ensure that employers are not left open to claims for redundancy payments for indefinite periods. I pointed that out on the Committee Stage. I am sure Labour Deputies will agree that the provision is not unreasonable since their main objective is being met in amendment No. 11. I take it Deputies will be prepared to agree to the Government amendment and withdraw their own.
Acceptance of amendment No. 11 also involves the acceptance of a number of other consequential amendments: 16, 21, 23, 28, 30, 32, 34 and 37 and a related amendment No. 27. As these are all consequential, the acceptance of No. 11 would automatically involve the acceptance of these.
We accept the Minister's amendment and the consequential amendments. The drafting of the amendment is clear-cut. One general query I would like to raise with the Minister is that reference to the cessation of the lay-off could be construed as reference to a general cessation, although it would seem the references are intended to apply in relation to the employee concerned. As the words "in relation to the employee" appear elsewhere in the Bill the absence of similar wording in this section might well be interpreted to mean that the section applies to the generality and not to the particular. We have given the Minister notice of our intention to raise this matter and perhaps he could meet the query. Unfortunately Deputy Tully who would probably elaborate on that aspect of the amendment is not able to attend this morning. It appears that the new 12 (2) as drafted applies to circumstances where an employee who has been laid off discovers that he was being replaced by a new employee. In such circumstances there should be an obligation on the employer to in-form the employee of the cessation of the lay-off. Would the Minister comment on that?
I have already indicated that I accept the general principle of the Labour Party amendment in the interests of simplifying procedures. There is really no fundamental difference between my amendment and the Labour Party amendment, other than the stipulation of the four weeks, which is, I think, reasonable. I am not quite aware of what the Deputy has in mind.
I move amendment No. 12:
In page 4, line 53, to add the following to subsection 2:
"Provided that the time limits for making a claim for a lump sum shall not apply if the employer has failed to give the statutory notice under section 17 or the Redundancy Certificate under section 18".
On this amendment we come back again to a very serious aspect of redundancy legislation. It is absolutely vital that legislation should provide that the time limit for making a claim for a lump sum shall not apply if an employer has failed to give the statutory notice under section 17 or the redundancy certificate under section 18. The Minister's view is that by extending the period to 52 weeks and to 104 weeks he is in fact putting in a very good medium provision. We believe there should be no particular time limit. In our view this amendment is even more necessary now because the amendment immediately following will prohibit weekly payments as well as lump sums where employees' claims are late because an employer has not complied with his statutory duty.
Where an employer has failed to give statutory notice or provide the appropriate certificate employees should be entitled to recover subsequently from such an employer. After all, such an employer is guilty of negligence and possibly evasion. The Bill does not go far enough. If I owe money to somebody I can hardly assume that after 52 weeks or 104 weeks my obligation in law ceases to exist. As far as I am concerned, redundancy payments are of the same character and we should not have one law for ordinary debts and another law for redundancy debts. A couple of hundred pounds to a worker could mean the difference between having some kind of future while he tries to get another job, or no future at all, or even emigrating in search of alternative employment. This is a social situation in which the Minister should bend over backwards to provide statutory protection.
This amendment would abolish altogether the time-limit on claims for lump sums. I could not accept it. It is neither necessary nor desirable. This whole matter was debated at great length on the Committee Stage and I pointed out then that section 10 provides for a very generous extension of the time within which an employee must lodge a claim. The extension runs from the existing 30 weeks to 52 weeks, and to 104 weeks, if it can be proved to the satisfaction of the Appeals Tribunal that the delay arose through reasonable cause. This is a very generous extension. A fair balance must be preserved and, in my opinion, this represents a fair balance between the interests of employers and those of employees. I am satisfied this provision is quite adequate to protect the position of employees whose claims are delayed and nothing the Deputy has said convinces me the amendment is necessary.
Would the Minister once again look at this amendment from the point of view of the worker who finds after two years that he was, in fact, entitled to what could be a considerable sum of money? Either through ignorance on his own part of because of negligence on the part of the employer, a worker, as a result of the provisions which we have asked to have amended, could be in danger of losing a considerable sum of money.
Deputy Desmond suggested that the Statute of Limitations, which applies to ordinary business debts, does not apply here. The worker is being asked to accept a two-year period whereas business people have a seven-year period and even after that period, if they resurrect the debt by way of civil bill or otherwise, they can get an extension of the time. I am asking the Minister to look at this from the point of view of possible application of the Statute of Limitations to these cases. There is a good case for it. As has been pointed out, the instances in which this will occur will be very few but there could be great hardship as a result of neglect by an employer or because of lack of knowledge or plain ignorance of the law on the part of employees.
Would the Minister give any hope at all of considering this later? I can understand his extreme reluctance to accept the entire amendment but I think he should consider inserting the 104 weeks. He brought the period up from 30 weeks to 52 weeks and, in exceptional cases, to 104 weeks and if we had a formal conclusion fixing it at 104 weeks in all cases it would be a considerable improvement. Deputy Kavanagh pointed to the application of the Statue of Limitations and this adds even greater weight to the views of the Labour Party on this.
I move amendment No. 13:
In page 4, after line 53, to insert the following new subsection:
"(3) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he has become entitled to a lump sum."
Section 24 of the Redundancy Payments Act, 1967, an amended form of which has been repeated in section 10 of the 1970 Bill provides a time limit on claims for redundancy lump sum payments but the time limit does not specifically cover weekly payments. Persons whose claims for lump sums have failed because of the time limit provision can, under existing legislation, be regarded as being eligible for weekly payments. I feel there is a strong argument in favour of extending the time limit to weekly payments as well as to lump sums. That simply is why the amendment has been put down. I said on Committee Stage that I intended to bring it in. A person who is dismissed through redundancy should be entitled to a lump sum and weekly payments or should not be entitled to redundancy payments at all. The existing situation is completely anomalous. There is a very generous extension of the time limit in section 10 and this should give ample opportunity to employees to establish entitlements to redundancy lump sums in future. I think the logic of this amendment is obvious to everybody.
I move amendment No. 14:
In page 9, at the reference to section 2, to insert the following after the definition of "the Employment Service":
"The insertion after ‘section 11 (2)' in the definition of ‘short-time' of ‘or section 11 (3) (as the case may be)"'.
Amendments Nos. 18 and 19 are consequential on amendment No. 14.
The Labour Party amendment No. 19 was discussed on Committee Stage and I indicated that though I was not opposed to the intention of the amendment, which was aimed at providing an additional definition of short-time, I should like to have another look at the wording. The matter has since been discussed with the draftsman on whose advice amendment No. 18 has been put down. It differs only in drafting details from the Labour Party amendment. In these circumstances I am sure amendment No. 19 will be withdrawn. Government amendment No. 14 is purely consequential on amendment No 18.
We welcome amendment No. 14.
I move amendment No. 15:
In page 9, at the reference to section 2, to add the following:
"The addition of the following definitions:
‘(a) "offer" in relation to re-engagement or renewal of a contract of employment or an offer of employment, means a written offer, received by the employee.
(b) "diminish" in Part 2, means either temporarily or permanently and from whatever cause.'"
This amendment seeks two additional definitions. We have put the definitions to the Minister and the first part of this amendment puts a new definition of the term "offer" for the Minister's consideration. We thrashed this out on Committee Stage and suggested to the Minister that the term "offer" in relation to re-engagement or renewal of a contract of employment should mean a written offer received by the employee. I think this is clear enough and that it streamlines most of the attitudes of the Labour Party in this matter.
In relation to the proposal in paragraph (a) of the amendment, this matter was discussed on Committee Stage when I said that in an ideal situation it would be desirable to have written offers not only from the employee's point of view but from that of the employer as well. I stated, however, that I did not think it would be reasonable to expect employers to make all offers in writing and I referred to the obligation already existing in relation to section 15 of the 1970 Act in relation to new contracts and so on. I expressed the belief that the requirements of section 15 regarding written offers adequately protected the employee's interests in a situation where he requires protection, where the new contract being offered to him differs from the old.
The Labour Deputies represented that in cases of dispute employers can and, in fact, do succeed in evading liability for redundancy payments by alleging that they made offers of re-engagement to employees that they did not, in fact, make. Deputies have argued that the inclusion in the legislation of a requirement that all offers of re-engagement should be in writing would prevent employers from acting in that way, by establishing with certainty in each case whether or not an offer was made.
We must face up to the fact that no matter what requirements are laid down there will always be conflicting arguments in particular cases as to whether or not offers were made or whether or not the terms of the offer were unsatisfactory. I do not accept that the provisions of the 1967 Act permit wholesale evasion of the kind suggested or that such wholesale evasion has occurred. I have already referred to the specific provisions of section 15 of the Act which afford valuable protection to employees in regard to offers of re-engagement. The position of employees is now being further safeguarded by section 9 of the Bill which provides that for the purposes of a reference to the tribunal a person's employment shall, unless the contrary is proved, be presumed to have been continuous and, if he has been dismissed, that it shall be presumed, unless the contrary is proved, that the dismissal is due to redundancy.
Other amendments put down by the Labour Party seek, for the purpose of dealing with exceptional cases, to impose wide obligations on employers. I have stated time and again in the course of Committee Stage of the Bill that we must accept that employers have rights, too. I consider that (a) of the amendment is unnecessary for employees and would be unfair to employers and I cannot accept it. I also believe that the definition of "diminish" in (b) is unnecessary and I do not propose to accept it either. I can see the intention behind the amendment, but it is really seeking to deal with detail that is already adequately covered and would not justify the imposition it would place on employers.
I cannot understand the Minister's reluctance to ask employers to make offers of employment in writing. The only reason the Minister has stated is that it would be inconvenient. Surely such a small inconvenience, if it is an inconvenience at all, would be far more desirable than a conflict between an employer and an employee as to, first of all, whether there was an offer of alternative employment and, if so, what exactly were the terms of that alternative employment. The Minister said that even with a written offer being made a dispute can arise. Possibly that is true, but surely if one has something down in black and white it is much easier to determine what exactly the facts of the case are then——
I said the wise employer would give notice in writing, but I would not like to impose it on him.
Unfortunately, like workers, they are not all wise, and to leave to the wisdom of an employer something that by implication the Minister has admitted is desirable and not include it in legislation is not acceptable. I cannot understand why the Minister is sticking so hard on this amendment. From any objective point of view it is a highly desirable amendment, that in the event of a dispute one is not going on the word of either party but one is able to see in black and white what exactly has been offered.
I put it to the Minister that nowadays even the smallest employer employs a clerk-typist or a typist or has a member of the family doing that type of work for him. Therefore, it is no great harship to expect him to have some little form, or, perhaps, the Department of Labour could issue such a form, indicating that an offer of re-engagement has been made. With sums of £500 or more at stake as a result of a dispute in this matter we must look at the whole question of small items like this in relation to employment in a different light from that in which they were seen in the past.
The old system, as in the parable, of just walking out to the man outside the vineyard and offering him employment should change after 2,000 years. At least let us get to the point where a notebook or a small form can be used and a name signed to it indicating that an offer of work has been made and that the person can start work on a certain date. A provision to this effect would improve the whole Bill. If this small change were made it would take away the vagueness that could arise with an employer as to the time and the date of the offer. It would then be the employee's responsibility to look after this document, to put it away in his wallet, so that if a dispute arises he can produce it to the employer or to anybody else to whom he wants to prove that an offer of work was made. We are not asking for any great sacrifice on the part of employers in seeking to have this amendment accepted. The number of times a person would be asked to sign such a form would be so few as to cause very little inconvenience to the employer. I would commend the amendment to the Minister even at this stage.
I would suggest that the Minister might have another look at this before it reaches the Seanad. It is only fair and proper that, if we are going to modernise industrial relations, relations between employers and workers in terms of employment offers should be on a more formal basis. Otherwise there will be a great deal of casualness giving rise to much friction, tension and confusion between employers and employees as to what precisely was meant on a given occasion. I have in mind a particular case where a firm ceased and where an offer of employment was made. But, of course, this was done verbally and the solicitor at the tribunal and in other negotiations, acting on behalf of the firm, assured everybody that because there was no written evidence the understanding of the employees in relation to their future prospects were, in fact, all wrong. The Minister has already accepted in various sections the need for employers to make proposals in writing. In relation to this particular section we are proposing that there should be a definition of the word "proper" so that nobody would be under any illusions about it.
We are now in 1971 when any job has of itself accumulated rights, when any job that is worth anything at all is worth a substantial amount of money per week, when industrial employment has major consequences in terms of income, social insurance of workers and redundancy payments. The principle that all relationships should be in writing, if necessary in a statutory form, is only elementary commonsense. If it is a good enough for a managing director to offer to a sales manager a contract of employment in writing and if the Tony O'Reillys of this world can obtain magnificently paid employment in writing, as undoubtedly they do, and obtain it in the form of an official and statutory, contractually binding agreement, every other employee is entitled to the same kind of protection, the same rights, even if their incomes are not as magnificent. The Minister should accept this amendment.
It will not cost half as much inconvenience as collecting the turnover tax did and the Government were not reluctant to impose that on employers.
I move amendment No. 16:
In page 9, after the reference to section 7, to insert the following:
The substitution in subsection (2) of ‘section 12’ for ‘section 12 (2)’.
This amendment is consequential on amendment No. 11 which has already been discussed.
I move amendment No. 17:
In page 9, after the reference to section 9, to insert the following:
The deletion in subsection (1) of ‘after The commencement of this Act’.
I move amendment No. 18:
In page 9, after the reference to section 9, to insert the following:
The insertion after subsection (2) of the following:
‘(3) Where by reason of a diminution in the work provided for an employee by his employer (being work of a kind which under his contract the employee is employed to do) the employee's reduced hours of work for any week are less than one half of his normal weekly hours, he shall for the purposes of this Part be taken to be kept on short time for that week.’
I move amendment No. 20:
In page 9, before the reference to section 12, to insert a reference to section 11 as follows:
The addition of the following subsection:
‘( ) “Notice” in this section means a written notice in the form prescribed by Departmental Form R.P.8’.
This, again, is for the protection of employees. Employees must give written notice when making claims. Therefore, employers should be obliged to give written notice in the prescribed Departmental form. We would like to know why the Minister is not accepting this eminently reasonable proposition.
I cannot accept this amendment. Anyway the principles here are the same as those we have just been discussing. I gave my views on Committee Stage on the question of whether notice should be in writing. For the same reason I cannot accept this.
When the Minister says he cannot accept it one must ask why.
It has not got any great advantage really. An employer could very easily forget. It is all right citing cases where a typist can type out a notice but there are many employers who are not organised like this. There could be the case of a lorry driver working for a man who is out labouring himself every day. One could visualise many cases where an employer could easily forget to give notice in writing. I have no doubt that well-organised industries and big concerns would always give notice in writing but I am thinking of the small casual type of employer who, perhaps, employs one man and is engaged on the job himself. He could easily forget.
The Minister's reason for not accepting the amendment is totally unacceptable—the fact that an employer might forget, forget his obligation towards his employee whom he is about to dispense with. I wonder what the Government's attitude would be towards a small employer who forgot to make his returns for turnover tax or income tax. To dismiss like that a legitimate safeguard being sought for an employee is hardly a responsible attitude on the part of a Minister for Labour. Unless the Minister can think of a more acceptable reason for rejecting this amendment, I think he would be doing himself an injustice in doing so.
Would the Minister not have a further look at it in view of the form generally suggested by the Department to employers? The kind of form that should be used by employers is generally accepted by the Department and I see no reason why that should not be incorporated in the legislation. It is eminently reasonable that the Department should supply through their local offices these simple forms which employers would fill in when giving notice and this would stop much of the conflict that arises between employer and employee on this question.
I move amendment No. 21:
In page 9, to delete the reference to section 12.
This amendment is now necessary as a result of the new section 12 being provided by amendment No. 11. I, therefore, ask for the acceptance of this amendment.
I move amendment No. 23:
In page 9, after the reference to section 12, to insert the following:
The substitution in subsection (4) o ‘section 12’ for ‘section 12 (2)’.
I move amendment No. 24:
In page 9, in the third amendment of section 15, to delete "two weeks" and substitute "four weeks".
With your permission, a Cheann Comhairle, I propose to discuss amendments Nos. 24 and 25 together. These amendments relate to the new subsection 2A being introduced by the Bill into section 15 of the 1967 Act which provides that if an employee who is offered alternative work takes this work for a trial period of not more than two weeks and then refuses the offer his temporary acceptance shall not prejudice any plea by him that his refusal of the offer was reasonable. The Labour Party amendment (No. 25) seeks an extension from two weeks to four weeks of this trial period and was discussed on Committee Stage. I said at the time that I considered a two-week trial period to be sufficient. I have re-examined the position in the meantime and I am now agreeable to providing for a four-week trial period. Amendment No. 24 provides for the necessary alteration in the Bill and will I presume be acceptable. The amendment covers the intention of the Labour Party amendment No. 25.
I move amendment No. 26:
In page 9, before the reference to section 17, to insert the following:
The substitution in subsection (3) (a) of ‘none of the conditions specified in section 7 (2) is fulfilled, but' for `neither of the conditions specified in sections 7 (2) (a) and 7 (2) (b) is fulfilled, but’.
With your permission, I propose to discuss amendments Nos. 26 and 29 together. The two amendments are consequential on the revised definition of redundancy being provided for in section 3 of the Bill. There are references in section 16 (3) and section 21 (2) of the 1967 Act to situations covered by section 7 (2)(a) and section 7 (2) (b) of the Act, that is the section dealing with the definition of redundancy, which as I have said, is being revised in section 3 of the Bill. The amendments are necessary to extend both references to the extended situation specified in the revised definition of redundancy.
I move amendment No. 27:
In page 10, in the reference to section 18, to delete the last six lines, and substitute the following:
The substitution for subsection (2) of the following:
‘(2) Whenever an employee who has not less than 104 weeks' continuous employment gives notice of intention to claim in accordance with section 12, his employer shall, subject to section 13, give him, not later than seven days after the service of the notice of intention to claim, a redundancy certificate.’
This is consequential on amendment No. 11 which has already been discussed.
I move amendment No. 28:
In page 10, after the reference to section 18, to insert the following:
The substitution in subsection (1) of ‘or where by virtue of section 12 an employee becomes entitled to redundancy payment' for `or upon the termination by such an employee in accordance with section 12 (2) of his contract of employment‘.
This amendment is also consequential on amendment No. 11 which has already been discussed.
I move amendment No. 29:
In page 10, after the reference to section 18, to insert the following:
The substitution in subsection (2) of ‘section 7 (2)’ for ‘section 7 (2) (a) or 7 (2) (b)’
I move amendment No. 30:
In page 10, after the reference to section 25, to insert the following:
The substitution in subsection (1) of ‘or where by virtue of section 12 he becomes entitled to redundancy payment' for `or upon the termination by him, in accordance with section 12 (2), of his contract of employment’.
This also is consequential on amendment No. 11.
I move amendment No. 31:
In page 10, in the reference to Schedule 1, to insert, before the reference to paragraph 4, the following:
"The deletion of paragraph 2 and the substitution therefore of the following—
‘2. The total amount being paid to a person in respect of the following:
a weekly payment, unemployment benefit under the Social Welfare Acts, 1952 to 1970, disability benefit under those Acts, maternity allowance under those Acts, unemployment assistance under the Unemployment Assistance Acts, 1933 to 1970, or (in the case of a person normally resident in Northern Ireland) a weekly payment, unemployment benefit under the National Insurance Acts (Northern Ireland) 1966 to 1970, sickness benefit under those Acts, maternity allowance under those Acts, supplementary benefit under the Supplementary Benefits Acts (Northern Ireland) 1966 to 1969,
shall not exceed 90 per cent of that person's normal weekly remuneration; provided that a person shall not receive in respect of unemployment benefit, disability or sickness benefit, maternity allowance, unemployment assistance or supplementary benefit less than that to which that person would, but for this Act, have been entitled'."
With your permission, I propose to discuss amendments Nos. 31 and 33 together. I referred at the Committee Stage to my intention to introduce an amendment to the Bill at Report Stage to allow weekly redundancy payments to be made to residents of Northern Ireland who became redundant in the 26 Counties and to persons who became redundant in the 26 Counties but who subsequently go to reside in Northern Ireland. In fact, two amendments are necessary to give effect to this intention.
Amendment No. 33 refers to paragraph 15 of the First Schedule to the 1967 Act, which specifies that a person shall not be entitled to a weekly payment unless he is normally resident within the 26 Counties. The proposed amendment will allow persons resident in Northern Ireland to avail themselves of their entitlement to weekly redundancy payments under the redundancy payments scheme.
Amendment No. 31 relates to paragraph 2 of the First Schedule to the 1967 Act, which specifies that weekly redundancy payments may be paid in addition to unemployment or other social welfare benefits but that the total of the weekly redundancy payments and of any social welfare payments may not exceed 90 per cent of preredundancy pay in any particular week. The amendment is necessary to provide on grounds of equity that the 90 per cent income limit should also be applied to beneficiaries who reside in Northern Ireland. That is the reason the second amendment is necessary.
As I mentioned on Committee Stage, it will be necessary to have the assistance of the Northern Ireland authorities in verifying claims which arise. The Northern Ireland Ministry of Health and Social Services has been consulted by my Department and has kindly promised full co-operation in the matter.
I move amendment No. 32:
In page 10, in the reference to Schedule 1, to substitute, in the amendment of paragraph 6, "he gave notice of intention to claim under section 12" for "he terminated his contract of employment".
This amendment is consequential on amendment No. 11.
I move amendment No. 33:
In page 10, in the reference to Schedule 1, to insert the following after the second reference to paragraph 9:
The insertion in paragraph 14 after ‘within the State’ of ‘or Northern Ireland’.
I move amendment No. 34:
In page 11, in the reference to Schedule 2, to insert the following after the reference to paragraph 17:
The deletion of paragraph 19 (1).
This amendment is consequential on another amendment already agreed to.
I move amendment No. 35:
In page 11, in the reference to Schedule 2, after the amendment of paragraph 19, to insert the following:
The deletion of paragraph 20.
This amendment is consequential on section 10 of the Bill relating to the time limit within which an employee may claim a redundancy lump sum payment from his employer. Paragraph 20 of the Second Schedule to the 1967 Act provides that in a case where a lump sum is being claimed by the personal representative of a deceased employee a time limit of one year should be regarded as applying instead of the normal 30 weeks. Section 10 of the Bill provides for the extension of the time limit applicable to claims for redundancy payments generally from 30 weeks to 52 weeks and, as was pointed out on the section, 104 weeks in certain cases where cause can be shown to the tribunal. The specific extension of one year provided at paragraph 20 of Schedule 2 is no longer necessary and the paragraph can be deleted. This amendment provides for that. It is consequential.
Amendment No. 36 is related to amendment No. 38 and they may be taken together.
I move amendment No. 36:
In page 11, at the reference to Schedule 3, before the proposed amendment to insert:
"The deletion of ‘one-half of' in paragraph (a)."
This is a question of the lump sum payments. In these amendments we suggest that there should be a lump sum of one week's pay for each year of employment and of two week's pay for each year of employment in the case of employees over 41 years of age. Since the fund can be described as being in a healthy state, we consider that this would not impose any great burden on the fund, and would not require an employer to do anything more than what is just and reasonable in the case of employees who, through no fault of their own, are faced with the prospect of redundancy. We ask the Minister to accept these amendments.
These amendments would in effect result in the doubling of the amount of the lump sums payable under the Act. A substantial increase of this nature, apart from its implications for the Redundancy Fund, which would be quite considerable, would place far too great a burden on industry generally. Assuming the rate of redundancy were the same as has been experienced in the three years 1968, 1969 and 1970, it is estimated that the doubling of the lump sums would cost between £750,000 and £800,000 in a full year. The Redundancy Fund would have to bear roughly £450,000 or more, and the employers the balance from their own resources. This is a situation which I could not accept. The additional benefits already proposed in the Bill, including improvements in the lump sum rates will, as has already been pointed out, cost the fund almost £500,000 a year. I believe that it would be most unwise to give any further concessions in the present situation.
I move amendment No. 37:
In page 11, in the reference to Schedule 3, to substitute, in the first amendment thereof, "he gave notice of intention to claim" for "he terminated his contract of employment".
I move amendment No. 39:
In page 11, in the reference to Schedule 3, to delete the fifth amendment thereof and substitute the following:
"The substitution in paragraph 5 (1) for ‘Where an employee's period of service has been' of ‘Where an employee's period of employment is or was'".
This amendment is substituted for amendment No. 39 on the amendment sheets.
With your permission, Sir, I propose to take amendments Nos. 39, 40 and 45 together. Deputies will recall that on Committee Stage I accepted a Labour Party amendment substituting the word "employment" for "service" where it occurs in the first line of paragraph 5 of Schedule 3 to the 1967 Act. The original Report Stage amendment No. 39 was tabled to provide for a further amendment of the same line of the paragraph. It would be neater and I have been advised that, from a drafting point of view, it would also be more desirable, to have both points covered by a single amendment. This is done in the new amendment No. 39, which makes the Labour Party amendment No. 40 unnecessary. I recommend to the House amendments Nos. 39 and 45 which are entirely of a technical nature.
May I ask if the debate on the Redundancy Payments Bill finishes at 1 o'clock or will it go on until we finish the amendments?
I do not think there is any time limit.
I am not aware of any time limit. We can go on until Question Time if necessary.
It now seems to us that amendment No. 41 is probably not necessary, and in the circumstances I am not disposed to press it.
No. I think this is fairly well met in my original amendment.
I move amendment No. 42:
In page 11, at the reference to Schedule 3, before the amendments to paragraph 5, to insert:
"The deletion in paragraph 5 (1) (a) of ‘78 consecutive weeks' and the substitution of ‘104 consecutive weeks'."
We suggest that by extending sick leaves or sick absences this would assist in preserving continuity where termination notices are given. This is one of the main principles behind our approach to this amendment. This would simply extend the period of absence due to disability which might have to be bridged between employment termination and the resumption of employment. We suggest substituting 104 consecutive weeks for 58 consecutive weeks. We think this is a reasonable time. We consider that 78 consecutive weeks is not adequate and that it should run to two years. This would be a very useful amendment if it were accepted by the Minister. It probably would not apply to very many people who have been in employment for a long number of years but it would help some long service employees. I do not think it would cost very much. There would not be a great number of claims coming forward of a questionable nature. This is a relatively minor improvement suggested by us but it would bring within the ambit of the Act a number of persons suffering from disability. This is a very socially desirable proposition.
When this amendment was being discussed on Committee Stage I said I considered that the existing period 78 weeks was sufficient, that I was not aware of any cases in which that period could cause hardship, and that it represented a balance between the thinking of various interests as to what period could be regarded as reasonable. As a result of the further examination of the matter which I have carried out I have found no good reason to change this view.
However, in order to correct any impression to the contrary that may exist, I should like to point out that the period of 78 weeks already laid down does not automatically commence when an employee has to absent himself from his employment because of illness. This period commences only from the date of his dismissal by his employer after he becomes ill and, if he is not dismissed, there is no limit at all to the period for which he can be absent from work through illness and still preserve his continuity of employment. I am quite satisfied that the number of employers who would dismiss employees merely because they become ill is negligible and I believe also that any employer who would act in this way would almost certainly refuse to re-employ a worker after a long spell of illness if he thought that by doing so he would have to assume liability for the worker's previous service. Quite honestly, I regard this amendment as unnecessary and unrealistic and I do not propose to accept it.
I do not understand why the Minister should say that this amendment is unrealistic. If a person is sick for 78 weeks he could be sick for a further 26 weeks. Unfortunately, there are numerous people in hospitals, such as TB hospitals, for long periods. Long periods of illness are not uncommon. Fortunately, as a result of greater awareness in our health services in recent years, such cases are not as numerous as before but there are still people who spend very long periods in hospital. Surely when a person is ill we must make every possible exception for that person. If a person is genuinely ill for any length of time in excess of 78 weeks, or even 104 weeks, I do not understand why the Minister would not accept an amendment that would allow that person to be entitled to benefit under the scheme as soon as it was found, after a long period of illness, that he was dismissed. Since the Minister says it is of little consequence he could extend the period by 26 weeks. It would not cause any inconvenience or any extra expense.
By way of correction, Sir, I should not like the impression to be given that somebody with a protracted illness, like TB, would automatically be confined to the 78 weeks. The 78 weeks does not commence from the date of illness but only from the date of dismissal and if dismissal does not occur there is no limit.
I move amendment No. 43:
In page 11, at the reference to Schedule 3 of the Principal Act, in the line after "Reserve Defence Force", to insert:
"The insertion in paragraph 5 (1) (b) (i) of ‘or dismissal' after ‘lay-off'."
This amendment should be acceptable to the Minister. It applies to seasonal workers and we have put it in the section relating to the Defence Force Reserve. In relation to the Defence Force Reserve perhaps the Minister could tell me if a worker does annual training and subsequently resumes employment to what extent can his employer claim that such annual breaks debar him from redundancy payments? Recently I had a query from a prominent Transport Union member in County Tipperary who has given tremendous service to the State over the past 30 years and is deeply involved in the annual preparations for training of reserve forces and he has had great difficulty in regard to redundancy payment claims. I undertook to make inquiries and I may as well raise the point now. The Minister should accept this amendment because otherwise it would not be consistent with the attitude in relation to other amendments which were accepted from the Labour Party.
On Committee Stage I stated that I was not prepared to accept such an amendment and I have not changed that view. On amendment No. 20 on Report Stage I have already stated that I was satisfied that the position of casual workers is otherwise safeguarded under the legislation. Therefore, this amendment is unnecessary. I may say that the amendment, as drafted, has much more far-reaching implications than have been represented in support of it. It would and could apply unfairly to employers in cases other than of seasonal or casual workers. It would be contrary to a basic principle in the Act in relation to continuity of employment that except in very specific circumstances dismissal must be regarded as breaking continuity. Like other amendments put forward, it could have the effect of reducing the prospects of re-employment in some cases. This is most important. In regard to annual training for reserve members this does not break continuity of employment but the question of its being reckonable service is another matter.
Amendment No. 45 is a ministerial amendment and is related to and was discussed with amendment No. 39.
I move amendment No. 45:
In page 11, after the eighth amendment of Schedule 3, to insert the following:
"In paragraph 5 (1), the deletion of ‘has been given' and the substitution of ‘has or had been given'."
I move amendment No. 46:
In page 11, at the reference to Schedule 3 of the Principal Act, after the proposed amendment of paragraph 6, to insert:
"The insertion after paragraph 6 of the following new paragraphs:
‘6A. If an employee's employment is interrupted (including voluntarily leaving the employment) and the employee resumes employment at the employer's request, or with the employer's consent within 52 weeks, continuity of employment shall not be broken by such interruption.
6B. Where before or after 1st January, 1968, an employee is or was indirectly employed or engaged by an employer (through an agency, contract or otherwise) and subsequently that employee became employed directly by that employer, that employee's employment shall be deemed to be continuous.
6C. For the purposes of this Schedule employment at the same place of employment with successive employers shall be taken to be continuous, unless the employee voluntarily leaves the employment.
6D. For the purposes of this Schedule a "take-over" of an employee by an employer shall not break continuity of employment.'"
This amendment gives protection to women who leave employment voluntarily to get married, or to other employees who voluntarily leave employment and are subsequently invited to go back to that employment and then, when a change of management occurs, the new management plead that the person voluntarily left the employment and so broke continuity. We have given the Minister a number of case studies, No. 37 of 1970 and No. 334 of 1969 and so on, and we pointed out that these case studies of tribunal decisions are entirely relevant and that a bone of contention has developed. We are asking the Minister to provide for a voluntary interruption of employment and where the employee resumes at the request of the employer. We suggest that provided that this happens within 12 months continuity should be preserved. This is in relation to Schedule 3 of the new Bill. I suggest to the Minister that he should not adopt the attitude which he adopted on Committee Stage of total opposition. Redundancy legislation is designed for the 1970s onwards for the rest of this century in which employment will be dramatically changed. The work will dramatically change even in the next ten years. Circumstances of employment will change substantially with the growth of casual employment and the great growth of workers in employment. This Act should be geared to anticipate as far as possible, future changes of employment. It is conceivable that an ever-increasing number of employees will come within the ambit of the amendment put down by the Labour Party. We ask the Minister to consider the amendment sympathetically.
When this amendment was debated on the Committee Stage I dealt with its four parts separately. I propose to follow the same pattern now. The Deputy will not expect me to go into the same detail. I expressed my total opposition to the first part of the amendment, 6 (a). Nothing I have heard since would encourage me to change my viewpoint on that. The proposal would have far-reaching implications. It would be unfair to the employer to expect him to aggregate for redundancy payments purposes interrupted periods of employment, and particularly interruptions occurring as a result of deliberate decisions by the employees themselves to leave their employment voluntarily. Acceptance of the proposal would also tend to act as a disincentive to workers remaining in the same jobs and would be an incentive to shuttle around.
I mentioned also on the Committee Stage that the proposal could act as a deterrent to workers being re-employed by former employers. That is, perhaps, the most important point.
There is a suggestion in the second proposal, 6 (b), that the employer should be obliged to assume liabilities for redundancy payment purposes to employees of sub-contractors. This has already been discussed in relation to amendment No. 8. The proposal at 6 (c) is the most objectionable in principle. I can see no justification for saddling one employer with the liabilities incurred by another in a business with which he himself had no connection. Finally, I must also reject 6 (d). I am satisfied that employees in the situations which the amendment is designed to cover are already adequately protected by the legislation. I see no need for the proposal.
These are my comments on the four parts. I regret that I cannot see anything reasonable in this amendment. I think it is a lost amendment although I did undertake, at the Committee Stage, to have a look at it.
May I point out that if one takes amendment No. 46 (a) here one can have an entirely casual situation developing where a woman, for example, goes to get married. After a few weeks the employer may invite her back. In the circumstances, the continuity of employment should be allowed to develop. That is the kind of contingency which we have in mind. An employee may take leave or a woman may decide to get married and inform her employer who tells her "Get married and come back to your job after a fortnight". The continuity of employment is broken. In the circumstances the legislation proposed is not progressive. Amendment No. 46 (b) takes into account the question of sub-contractors' employees being taken on by the principal and amendment No. 46 (d) refers to the take-over of employees. The Minister could certainly consider this particular section and amendment between now and the time when the Bill goes to the Seanad.
There are a number of points which I wish to make. I wish to thank the Minister for accepting a fairly large number of Labour Party amendments. The Committee Stage of this Bill went through the House in about 15 hours which was quite expeditious bearing in mind that there were 50 amendments on the Committee Stage. There were 46 amendments on the Report Stage and they have gone through in one morning. No one can say that the Opposition did not expedite the remaining Stage of the Bill today.
I would press for the numbering of the amendments in the Schedules. This is a technical point but trade union officers, employers representatives, and solicitors, handling the Redundancy Payments Act, as it will be called, will have to go through the tortuous layout of the Schedule. Admittedly it has been very much improved. I compliment and thank the Departmental staffs for having done good work in the simplification and laying out of a number of the Schedules and the amendments. I would also urge strongly that the Minister should ask for a reprint of the Bill for administrative purposes as soon as possible. This would be of assistance to those dealing with redundancy legislation.
I should like to refer to the introduction of references to the social welfare code on pages 10 and 11. These references should be deleted in the Seanad.
These are my observations on the Bill itself. I thank the Minister for accepting our amendments. I should like to thank also two people outside this House who have given considerable assistance to the Labour Party Deputies in their briefing on this legislation. Mr. Patrick Murphy, President of the Federation of Rural Workers was of immense assistance in a painstaking manner to the Labour Deputies. I thank also Mr. Donal Nevin, Assistant General Secretary of the Irish Congress of Trade Unions. I should like to thank the Bills Office and the Departmental staffs for their patience and tolerance in dealing with the many amendments we put forward in relation to this Bill.
I would urge the Minister to take every opportunity to stress publicly that the general philosophy behind redundancy payments is not that they should tide a worker over a period of unemployment. We should like to see stressed by the Minister that the stated purpose of redundancy payments is to compensate for loss of security in employment and to encourage industrial workers to accept the fact of redundancy without damaging relations between them and their employers.
Since 1967 in relation to redundancy payments legislation, we have not stressed sufficiently the fact that a redundancy payment, either by lump sum or supplementary weekly benefits, is compensation for the loss of a right which any employee has intrinsically given to him in his job. Those people who deal with social and industrial legislation do not draw sufficiently the comparison that just as a property owner has the right to compensation when he is deprived of his property, likewise any long-term employee should be regarded as having a similar right to compensation, a right to security and to obtain payment for the value he has put into the job.
This Bill, as further amended, is meeting the highest aspirations of the Labour Party. We have had to wait for 40 years for elementary Labour Party policy to be put into operation. This Bill will lead to a general improvement in industrial relations and will compensate workers for loss of jobs, irrespective of whether that loss led to unemployment as such. I welcome this debate; for members of the Labour Party it has been a valuable opportunity to participate in constructive legislation.