Dáil Éireann debate -
Tuesday, 7 Nov 1972

Vol. 263 No. 5

Minimum Notice and Terms of Employment Bill, 1972: Second Stage.

Minister for Labour (Mr. J. Brennan)

I move: "That the Bill be now read a Second Time."

I feel that at this stage in our social development the House will welcome this piece of legislation and I am pleased to be able to present the Bill for consideration. We have our social welfare code and our redundancy payments legislation and I think it is a logical sequence that we should now give legislative backing to the concept of minimum periods of notice in respect of the termination of employment. As a first step in this area, the Bill, as I have indicated, provides for minimum standards and I would expect that these standards will be reviewed periodically in the light of experience. In anticipation of this, provision is made in the Bill for variations in the periods of notice by way of affirmative order.

The Bill sets out to do two simple things. The first is to prescribe a minimum period of notice which must be given by an employer who wishes to dispense with the services of an employee, or by an employee who wishes to leave his employment. The second is to give any employee who is in doubt about any or the more important terms of his employment the right to have the terms confirmed in writing by his employer.

Under the Bill an employer will be entitled to a statutory minimum of one week's notice but the entitlement of an employee will vary with his service. He will be entitled to one week's notice if in service for at least 13 weeks but less than two years, two weeks' notice if in service for two to five years, four weeks' notice if in service for five to ten years, six weeks' notice if in service for ten to 15 years, and eight weeks' notice if in service for over 15 years. I should like to emphasise that this legislation should not impose any financial burden on employers. Where an employer proposes to dispense with the services of a worker, he notifies him in one form or another. It should not cost anything to bring this notification into conformity with the minimum period requirements laid down in the Bill, where such is not the case already. There is, of course, nothing to prevent an employer from giving better terms than those provided for in the Bill.

The Bill will not interfere with the rights of employers and employees who may wish, by mutual agreement, to dispense with notice of any kind. Neither will it interfere with the rights of one party to terminate employment without notice in the event of serious misconduct by the other party.

In addition to the minimum notice question, I am providing in the Bill that a worker will have a statutory right to get from his employer, on request, written particulars of the main terms of his employment: in the absence of better terms the statutory minimum periods of notice would, of course, form part of the terms of his employment. I see no good reason why a worker who wants this kind of documentary evidence should not have the right to get it on request.

Deputies will have noted that disputes under the Bill will be dealt with, in the first instance, by the Redundancy Appeals Tribunal but that there will be a right of appeal to the High Court on a question of law. This provision has been prompted not only by the desire to provide readily accessible machinery for resolving such disputes, but also by the high degree of acceptability which the tribunal's decisions in other fields have won from employers and workers alike. I hope that this piece of legislation will be conducive to good employer-employee relations, and I commend it to the House.

Mr. P. Barry

We on this side of the House welcome this Bill. The Minister says that it is a minimum notice and terms of employment Bill and that he intends to go much further. This is an area where legislation could be introduced in many respects which would clear up many small irritants and differences between employer and employee. This Bill will look after one of these differences.

The Minister said:

The Bill sets out to do two simple things. The first is to prescribe a minimum period of notice which must be given by an employer who wishes to dispense with the services of an employee, or by an employee who wishes to leave his employment.

The Bill says that the minimum period if an employee has been in the continuous service of an employer for at least 13 weeks but less than two years, shall be one week. I think that should be increased. Nowadays a period of one week is not sufficient for any employee. If he is given notice on a Friday night he only has until the following Monday week to find employment. This is frequently very difficult. It should be increased to a minimum of two weeks. The other periods of notice necessary should be realigned upwards, that is, the period from two years to five years should be increased. In 1968 the Fine Gael Party produced an industrial relations policy and stated:

The hardship involved in changing employment must be mitigated in the interest of the personal welfare of those on whom it is forced, as well as in the interest of increasing mobility of labour for economic reasons. To this end, and in supplementation of recently introduced redundancy compensation, Fine Gael will introduce legislation laying down the minimum period of notice which must be given to an employee on termination of employment. It is suggested for permanent employees that this should never be less than four weeks.

If the Minister finds it impossible at this stage to go as far as four weeks he should certainly keep in mind that we would in the future increase the minimum period of notice under which any employee could be dismissed from his employment to four weeks.

We should make a start by saying that the minimum period under this Bill should be two weeks. I cannot think of any other employment, outside the building trade, in which an employee is given less notice than the time for which he draws his payment, that is, if he is paid by the week he will get a week's notice and if he is paid by the month he will get a month's notice.

The Minister in his speech today said that the second objective of the Bill is:

To give any employee who is in doubt about any of the more important terms of his employment the right to have the terms confirmed in writing by his employer.

This is something which should be stated more positively than that. An employee is obviously only interested in the terms of his employment if he is in dispute with his employer. He should not be asked to go cap in hand to his employer to get the terms of notice when he is probably at that stage fighting with his employer. A contract of employment should be given to every worker.

The Fine Gael industrial relations policy stated in relation to the contract of employment:

Many disputes at work could certainly be avoided if conditions of employment were stated clearly in a contract. We believe that there is a great deal to be gained from the issue of service contracts to all permanent employees. These would be detailed documents containing the terms of employment and an agreed procedure for arbitration on shop floor disputes.

This is the kind of document an employee would only want to read if he was in dispute with his employer. We should avoid asking him at that stage to look for a document that might only aggravate the dispute. The Minister has written into this Bill what the employee can look for under this Bill —the date of commencement of employment, the rate or method of calculation of his remuneration, the length of the intervals between the times at which remuneration is paid, whether weekly, monthly or any other period. It is also written into the Bill the terms of conditions relating to hours of work or overtime and also holidays and holiday pay. These are standard. The Department of Labour could produce a form, to be issued to employees through their employers at the commencement of work, setting out in writing, as part of a contract between the employer and the employee— before work commences; not when a dispute arises—all the conditions of employment. At that stage if the employee is looking for information of this kind it would aggravate the dispute.

The people who are excepted from this—the permanent Defence Force, the Civil Service, the Garda Síochána —should be included. Possibly their terms are much better than the terms set out in this Bill. At the same time the Government should not ask employers to do things which they are not willing to do themselves. This Bill recognises the fact that better terms may be given by an employer than those set out in the Bill. Even if the terms are better, the Government should be bound by this legislation to give to their employees minimum periods of notice and to write those into contracts between the employer, that is, the Government and the Civil Service or the Garda Síochána. I shall be putting down an amendment to increase the minimum period of notice. Generally speaking, this is a start in a field which badly needs investigation in this country, that is, the industrial relations policy, the conditions existing between employers and employees. I welcome this as a start.

Dr. O'Donovan

I would like to say that, as a start, this Bill is welcome, but it is not much of a Bill. The very minimum notice should be one week for each year of service and I would regard that as inadequate. Deputy Barry said that when men were employed by the hour they could be sacked on an hour's notice, if they were employed by the week they were entitled to a week's notice, and employed by the month they were entitled to a month's notice.

The Deputy also referred to the question of employment in the Civil Service, the Army and the Garda Síochána. It used to be said that it was difficult to get into the Civil Service and impossible to get out of it. It is still impossible to get out of it but it is not difficult to get into it.

Mr. Haughey

The Deputy disproved that by getting out.

Dr. O'Donovan

I got out of my own free will.

Mr. Haughey

Yes, at a loss to the public service.

Dr. O'Donovan

It is good of the Deputy to say that. I hope I am more useful where I am at present. Some attempt has to be made to keep democracy going in this country. I hope I am making a contribution to that end. This Bill requires considerable amendment and I propose to put down a number of amendments for the Committee Stage. The explanatory memorandum to the Bill states that an employee is entitled to notice of:

(a) one week if in service for less than two years

(b) two weeks if in service for two years to five years

(c) four weeks if in service for five years to ten years

(d) six weeks if in service for ten years to fifteen years

(e) eight weeks if in service for over fifteen years.

Some people may be 20 or 25 years in the one employment. We have a notorious example in the textile industry at the moment, where a company which is over 100 years in existence is now under the threat of extinction. One particular company which has been mentioned, which a group of consultants reported on, is the Convoy Woollen Company in Donegal. I have a personal interest in that firm because I was married in a piece of their cloth. It was a very excellent suit.

Mr. J. Brennan

They do not make blankets now.

Dr. O'Donovan

I can assure the Minister that I was not married in a blanket. At that time we were not as keen on being married in morning dress as are people nowadays, though perhaps we could have afforded it better than can some of the people today who hire it. I often wonder whether it is not a bad idea to have too much show at a wedding.

Mr. Haughey

The Deputy is going on to dangerous ground now.

Dr. O'Donovan

Too much display may not be the best omen for, as we were told this evening, the long distance future that marriage entails. To get back to the Bill, I agree with Deputy Barry that service contracts in writing would be a help. Of course every civil servant is presented with a contract of service although if one is a permanent civil servant, consideration by the Government is required before one can be dismissed. In fact it would take a long time for the case to reach the Government because one would meet many kindly intentioned people at the various stages.

As a beginning this Bill is better than nothing, but not much better. With a different title it might provide for a matter that should be attended to at this stage, that is, the question of a minimum holiday period for workers. At present the period is 12 days.

Mr. J. Brennan

That matter would be incorporated in a separate Bill.

Dr. O'Donovan

I am entitled to refer to it in relation to this Bill.

An Ceann Comhairle

It is outside the scope of this Bill.

Dr. O'Donovan

I am familiar with the practice of the Government in trying to restrict the scope of a debate. It is a well established practice in this House that on Second Reading speeches, Members may make suggestions as to what should be in the legislation. I stand over my suggestion that in discussing conditions of employment, the question of holidays in relevant. The present regulation in this regard has been in existence since 1961. Now that a five-day week is in operation the 12 working-days holiday mean a little more than a fortnight but this is still very much less than what is the position on the Continent. In France, for instance, workers get a month's holiday each year. If one visits a major city in France during the month of August one will find it comparable to Goldsmith's "Deserted Village".

The Minister is being modest enough when he says that as a first step in this area the Bill provides for minimum standards. He goes on to say that he would expect that these standards would be reviewed periodically in the light of experience. We shall have to put down amendments to review the provisions of this Bill before it is enacted. It is my intention to table amendments for Committee Stage. In section 8, for example, there is the right to terminate a contract of employment without notice. This appears to be reasonable in that it cuts both ways but, of course, that is not the position. It says that "nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party". May I ask the Minister in what private enterprise company can a worker ever have the right to penalise his employer if, for example, the employer has used vulgar language to him?

Mr. J. Brennan

The Deputy is thinking all the time in terms of big companies but this clause could relate to a person who employs only one worker.

Dr. O'Donovan

The position is not altered.

Mr. J. Brennan

In a small company the relationship between employer and employee would be much more intimate than in a big company and, consequently, misconduct would be more likely to arise.

Dr. O'Donovan

What the Minister is saying is that large organisations are more impersonal and while this is true they are also more human in the sense that, for example, many a man in his fifties, who is working in a company and who "has arrived" as is said, puts in his time at his ease. But in a small concern this might not be tolerated because of the inability of the concern to bear any loss on this account. Of course it is an advantage to be working for a big company because one is less likely to get into trouble for cheeking one's immediate boss than would a person in a small company. I notice that the Minister agrees with me. It is good that there is one item at least on which we think alike.

As drafted, section 8 is in favour of the employer rather than the worker. I find it very difficult to understand how misconduct can be effected by an employer. There is one obvious area but good manners prevent me from referring to it although something allied to it was discussed earlier this evening. That is the only example that I can think of where an employer would be guilty of misconduct, whereas an employee can be guilty of misconduct if, for instance, he executes his work badly. In such case his contract of employment can be terminated without notice.

I shall check on this before Committee Stage but I take it that the employee must be entitled to the provision which allows for so many weeks notice or, to put it another way, to so many weeks compensation so that after spending a number of years in a firm a man will not be dismissed without compensation even if he is guilty of misconduct. This is an old problem. As far back as one could go in economic literature there is concern for the rights of workers. We all know that the law has been liberalised considerably in this connection, that the time of the combination Acts is long passed but it is the case yet that on the whole the weight is in favour of the employer. In the first place, he is usually better off than the employee and if he receives notice from the employee he will only be inconvenienced for a day or two, whereas an employee given similar notice might be out of work for six or 12 months. Therefore, I do not think that is a fair or reasonable section. Those are the main points I want to make at this stage but when we take Committee Stage I shall have a number of amendments to put down.

Mr. Kavanagh

I should like to join with my colleague in welcoming the Bill so far as it goes. It is high time that notice to employees was given statutory effect. Although we cannot say where the authority comes from, we are aware that people must be given notice but at long last we have it as a form of legislation to which we can refer in our dealings with employers. A great deal of my own time as a trade union official is spent in dealing with problems as a result of the hiring or firing of employees.

My colleague has pointed to the great weakness of the Bill, that is, the provision in section 8. I imagine the word "misconduct" would lead to a great deal of legal interpretation were it to be stated as blandly and simply as it is in section 8. Many hours of negotiations and tough talking has been spent prior to this Bill being passed to decide whether an employee was sacked because of misconduct or for some lesser reason. I understand my colleague will be putting down an amendment designed to change the wording and meaning of section 8.

As Deputy O'Donovan said, the matter of misconduct is usually interpreted in one direction only. I cannot remember in the ten years in which I have acted in my town as branch secretary of the largest trade union in the country ever being summoned by an employer to say that he had committed some act of misconduct and that because of that an employee intended to leave or to take some action against him. I always find the problem is in the other direction, and it is too simple to imply, as it does in the section, that that will always be to the advantage of the employee. Indeed, it will not; it will be used by unscrupulous employers to get rid of employees on occasions. On other occasions, of course, it will be used by employers because misconduct has occurred. A great deal of money will be hanging on this term, and so it is imperative that the Minister should make it much clearer what he means by misconduct and why an employee must lose the benefit of many years' service, perhaps, if an employer has to let him go and claims, as a subterfuge, that that employee has been guilty of misconduct, perhaps, in the few weeks before he is eventually let go. I would ask the Minister to look at the section, as amended, so that an employer is not able to use the section to get out of his responsibility of paying an employee or giving him sufficient notice so that he can get several further weeks' employment.

Those of us in the trade union movement welcome many of the provisions in this Bill. However, we have reservations about that section and hope that on Committee Stage something will be done to make that provision a little more watertight in favour of the employee.

Minister for Labour (Mr. J. Brennan)

The Bill deals with just one specific matter. That is the result of the decision taken some time ago that instead of having an omnibus bill on industrial relations, the various matters would be dealt with by separate legislation. The Holidays Amendment Bill has been cleared in principle by the Government already and will, I hope, shortly be before the House.

The criticisms of this legislation, which, to my mind, is a very important piece of legislation, are not many. I would ask those Deputies who have suggested they would put down amendments to give serious consideration to what they intend doing and as to why these sections contain the provisions they do contain. It must be remembered, first of all, that this Bill is heavily weighted in favour of the worker. He can have up to as much as eight weeks' notice, whereas there is only one week in it for the employer if the worker wants to go, and that week, I would argue, is as much in favour of the employee as it is of the employer in the case of misconduct.

I do not think any of us are sufficiently naïve to pretend that there is no such thing as misconduct. If an employer finds an employee with his hand in the till, he is entitled not to give him eight weeks' notice. It is as simple as that. The majority of employers are excellent and we cannot all the time be imputing motives to them.

Mr. P. Barry

Deputy Kavanagh's point was about defining misconduct by the employer.

Mr. J. Brennan

That is the point I was going to explain. Did we not often hear of an employee walking out in a fit of temper when the employer said something to him that was unbecoming or insulting? The week's notice is something that would be for his own benefit in this case. There are occasions when workers have reason to have disputes with their employers and very often employers are the people who are to blame. As I said when Deputy O'Donovan was speaking, this can happen in small concerns where there is close personal contact with the proprietor or the manager. These people have to be looked after just as much as the people in the large concerns where they might not see the boss in 12 months.

A good deal of thought has been put into the provisions in this Bill. If Deputies wish to seek to amend them it is their privilege to do so, but I would like to tell them that the provisions were not framed without a good deal of opinion being sought from both sides.

Dr. O'Donovan

Are we to understand from the Minister that he is not prepared to accept any amendments? Is that the implication?

Mr. J. Brennan

No, I did not say any such thing. I said it was your privilege to seek to amend it.

Dr. O'Donovan

But a privilege is something that can be withdrawn; it is of doubtful value.

Mr. M. O'Leary

Would the Minister agree that section 8 is an invitation to an unscrupulous employer to do what he likes with his employees?

Mr. J. Brennan

Indeed, it is not. Deputy O'Donovan has made a persuasive argument but not sufficiently persuasive to influence me. We have the redundancy appeals tribunal to which disputes can be referred and there is the right to take action in common law. Any legislation enacted here makes provision to safeguard employees but an employer must have the right to deal with cases in which there is misconduct.

Mr. M. O'Leary

But if it is not defined, as in this case, what then?

Mr. J. Brennan

One could not possibly define it.

Dr. O'Donovan

Might I suggest that what I really said——

Mr. J. Brennan

I have only eight minutes.

Dr. O'Donovan

I think the Minister will have plenty of time in the eight minutes.

An Ceann Comhairle

The Deputy is not in order.

Dr. O'Donovan

I am intruding merely to say that all I said was that the weight was entirely on the employer's side. That is what I said. I stand over that. It is true. There may be exceptional cases.

Mr. J. Brennan

I say it is weighted in favour of the employee. Deputy Collins and Deputy O'Donovan referred to one week being too short. The one week is calculated to meet the case of the least permanent type of employee, I do not think we would have difficulty in visualising instances in which long notice would hardly be practicable. The building industry is one. A man might have to give notice to men tomorrow but he might not know today that he would have to do so. There are many types of employment in which there are casual employees who move from one job to another and they could not possibly get long notice. These do not find it difficult to get employment.

Dr. O'Donovan

I think the Minister is referring to what Deputy Barry said.

Mr. J. Brennan

We must have regard to the employer who hires and fires men frequently. Casual employees are accustomed to moving from one job to another. It is different in the case of a man who has been 15 years in the same employment. He might not be able to step into another job very easily and so he needs long notice to help him to adapt or retrain. This is good sense. This Bill is weighted in favour of the employee. There is no doubt about that. We can discuss this in greater detail on Committee Stage. I have discussed this matter with many people on both sides and they did not find anything wrong with it.

Dr. O'Donovan

I do not think the Congress of Trade Unions is too satisfied.

Mr. M. O'Leary

The Minister does not mind so long as the employers are.

Mr. J. Brennan

It is the Deputy who said that.

Mr. M. O'Leary

The Minister, by silence, gave consent.

Mr. J. Brennan

I am looking here at the other countries which have made provision. We would be on a par with Britain. I am not saying this is something about which we should be happy. In France a wage-earner with six months service is entitled to one month's notice. A salaried worker, with two years service, is entitled to leave of two months plus an indemnity. In Belgium, it is 14, 28 or 56 days according to seniority; for clerical workers it is three months notice for every period of five years or part thereof. White collar workers in Germany are entitled to six weeks notice. This is increased to six months for service of five, eight, ten or 12 years after age 25. Manual workers must be given two weeks notice, but this is increased to one, two and three months in respect of service after age 35. In the Netherlands the notice is the length of time between two successive pay days up to a maximum of six weeks. This can increase to 13 weeks. In Luxembourg the minimum notice is four weeks for up to five years' service and eight weeks for service from five to ten years and 12 weeks after ten years. In Italy in the case of non-manual workers the minimum notice is 15 days increasing to four months depending on service, responsibility and so on. No two countries are quite the same.

Mr. P. Barry

The Minister has not quoted one with one week's notice.

Mr. J. Brennan

They have an indemnity built in in some cases but none has redundancy legislation. I do not think there is any other matter I need discuss at this stage. I suggest that those Deputies who are concerned about the provisions in this Bill should discuss it with interested parties before Committee Stage and, if they do, they will find a very strong school of thought on both sides of employment with regard to the provisions here.

Mr. M. O'Leary

The Minister must have been talking to Fianna Fáil trade unionists.

Mr. J. Brennan

There are more trade unionists in Fianna Fáil than there are in any other party. That has been proven beyond yea or nay.

Mr. Coughlan

Does that apply in Donegal?

Mr. J. Brennan

I am grateful for the reception given to the Bill and I hope to have a full discussion on its merits on Committee Stage on the only two points on which some doubt has arisen.

Question put and agreed to.

Committee Stage ordered for Tuesday, 5th December, 1972.