Committee on Finance. - Holidays (Employees) Bill, 1973: Committee and Final Stages.
SECTION 1.
I move amendment No. 1:
In page 2, line 29, to insert "or, if no time was worked during those weeks, during the thirteen weeks ending on the day on which time was last worked before annual leave or cesser of employment" after "cesser of employment."
In the original Bill we provided for the 13 weeks ending on the day before annual leave or cesser of employment. In case anybody was knocked out by that we have added this amendment. We wanted to ensure that nobody who did not fulfil the 13 weeks requirement was excluded. That is the purpose of the amendment.
Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."
I should like to ask the Minister why agricultural workers are not included in this Bill. In discussions on the previous Act there was criticism of the fact that agricultural workers were not included. I know the Government have made an announcement to the effect that they intend to bring in legislation. Would it not have been desirable to embody it in this measure, or is there any reason why it is not included?
Agricultural workers are catered for under the Agricultural Wages Board at the moment but I have power to bring them in at a later stage. As the Deputy is aware, an inter-departmental committee are examining legislation relating to the wages and holidays of these workers and they have recommended the possibility of including both agricultural and non-agricultural workers when future holiday legislation is being considered. The Deputy is right to voice concern that agricultural workers are not included in this legislation but the decisions have to be made elsewhere in the agricultural community. However, as soon as circumstances are opportune I shall make the necessary order to include them.
Can the Minister state if it would be possible to provide for a considerable group of people —I refer to part-time teachers—who do not get holiday pay or allowances? This matter came to my notice only in the last few days. When we think in terms of social justice a case can be made for these teachers, some of whom spend perhaps 20 hours a week at their job, practically a full teaching week. However, they do not get any holiday whatever, whether bank, church or annual holidays. Would it be possible to provide social justice for these people in this measure? I realise I might have referred to this matter earlier and I appreciate that the Minister may not be able to give me the information now but if he can tell me that the matter will be considered I shall be happy.
They are covered under the Bill. Later we widen the scope considerably with regard to casual workers coming under it. The category the Deputy mentioned would come under it as part-time workers. What we are discussing here are those who are excluded—outworkers, agricultural workers, seafarers, lighthouse or lightship employees and others. The Deputy may be assured that those who previously were excluded are now included proportionately in this Bill, according to the times they work.
Question put and agreed to.
SECTION 3.
Amendment No. 2 is consequential on amendment No. 3 and they may be discussed together.
I move amendment No. 2:
In page 3, line 48, to insert ", subject to the next subsection," before "to proportionately".
Amendment agreed to.
I move amendment No. 3:
In page 3, between lines 49 and 50, to insert the following subsection:
"(3) Annual leave shall also be equivalent to three working weeks where the employee works for the employer at least 1400 hours (or 1300 hours if under 18 years of age) during the leave year unless it is a leave year during which he changes his employment."
This amendment was introduced following representations by the organised trade unions. One of the main criticisms of the 1961 Act, which this Bill supercedes, was that under that Act an employee had to work 1,600 hours in his employment year to qualify for two weeks' holiday. There was no provision for proportionate leave for employees working less than 1,600 hours. To meet this defect the qualifying month of service formula was adopted in this Bill so that over the year the person would get proportionate annual leave.
The trade unions accepted that the new basis was an improvement on the 1961 legislation but they argued that another problem was created as a result of this change in that some workers might not have the necessary qualifying number of hours in each month —I am referring to the improved basis where we agreed on the month being the unit on which we worked out the proportion. Nevertheless they would qualify for full leave entitlement on an annual basis if the provisions of the 1961 Act were to apply. To give them the best of all worlds, to provide for the worker who would have got this benefit under the old Act and those who would benefit by getting a proportion under the new legislation but who would not have received anything under the old Act, I brought in this amendment. A person who has the hours under the old legislation and those who have them on a proportionate basis under the new legislation will also get their entitlement. If a man changes his employer he cannot claim his annual leave under the hours criterion of the old legislation or under the annual leave of the new measure.
The amendment is acceptable. In relation to release courses, either academic or technical, some employees having completed the course have been told that it was holiday enough. Can the Minister state if workers who are engaging in those release courses are covered by this measure.
It is not covered here but, as will be seen later in the Bill, we ensure that the employee is entitled legally to annual leave. Although we do not refer to educational leave in the area of annual leave because it is a different matter, we might consider it under the hours of work legislation which I have undertaken to bring before the House.
Amendment agreed to.
I move amendment No. 4:
In page 4, line 14, to insert ", lodging or board and lodging" before "is part of remuneration".
Amendment agreed to.
Amendments Nos. 5, 6, 7 and 9 are related and may be discussed together.
I move amendment No. 5:
In page 4, to substitute for subsection (6) the following subsection:
"(6) (a) In this section "qualifying month of service" means any month (January to December) during which the employee has worked for the employer at least 120 hours or 110 hours if under 18 years of age).
(b) For the purposes of subsection 3 and of the previous paragraph—
(i) a day of annual leave shall be taken as if the employee worked thereon the hours he would have worked if not on leave, and
(ii) wet time shall be taken to be hours worked up to a maximum, in the case of subsection (3), of 480 hours in the leave year or, in the case of the previous paragraph, 40 hours in the month."
All these amendments relate to the reduction to 120 hours to relate more closely to the 40-hour week.
Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.
I move amendment No. 6:
In page 4, line 39, to substitute "120" for "125" and "110" for "115".
It is agreed generally that if a person works on a public holiday he should get more than an extra day's pay, that he should get a double day's pay and a day off. Most men would prefer to be with their families on a public holiday but if they must work they should be compensated adequately. Some firms give a double day's pay and a day off in these circumstances but the majority give only a single day's pay.
The Deputy will be aware that this is the minimum entitlement.
The point is that in general the minimum will be accepted.
The timing of annual leave is a matter for consultation with the employer and the employee. The words "as the employer may decide" are to permit of some flexibility in making arrangements but the employer cannot escape his obligation to grant the holiday.
I am concerned that only single time may be paid for work carried out on a public holiday.
This legislation is tied in with the rights in respect of public holidays. It does not enter into the area of negotiations as to how much these holidays are worth.
It is wrong to give to the employer the right to decide the extent to which public holiday work is compensated for.
There is a pattern laid down regarding negotiation with employers and their trade unions as to what compensation is to be paid in this area. This legislation is concerned solely with the holiday entitlement.
Can the Minister say if he intends taking Report Stage tonight?
I should like to take the remaining Stages today.
Perhaps, then, the Minister would consider some other way of covering this point.
Amendment agreed to.
Section 4, as amended, agreed to.
SECTION 5.
I move amendment No. 7:
In page 5, line 11, to substitute "120" for "125" and "110" for "115".
Amendment agreed to.
I move amendment No. 8:
In page 5, line 13, to substitute "day and a quarter's" for "day's".
This amendment is desirable so as to bring into line the compensation for annual leave entitlement arising from one month's qualifying service.
Amendment agreed to.
I move amendment No. 9:
In page 5, line 17, to substitute "120" for "125" and "110" for "115".
Amendment agreed to.
I move amendment No. 10:
In page 5, between lines 19 and 20, to insert the following subsection:
"(4) Compensation under this section shall, if the cesser is by the employee's death, be paid to his representatives."
This is a point Deputy Dowling raised last week. The amendment provides that a worker's right to compensation in lieu of annual leave be paid to his personal representatives should the worker die. At the time I said to the Deputy that I did not consider it appropriate to insert such a clause in this legislation but it was possible to include it and I thank Deputy Dowling for having suggested it.
Amendment agreed to.
Section 5, as amended, agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
This section permits the employer to decide when to grant annual leave. However, this right must take into account his employees' opportunity for rest and relaxation. The employer must consult the employee or the employee's trade union at least one month before the holiday is to be granted and he must allow the leave to be taken within the relevant leave year.
Or within six months afterwards?
Yes. It was considered necessary to have some flexibility in regard to these arrangements.
That is desirable, but what would be the outcome of an employer failing to grant the leave within the required period?
He would be subject to the relevant penalties.
Would the employee be at the loss of compensation for such leave?
I had in mind the position that might arise in the case of, say, a highly qualified technician whose services would be required for the continued operation of a section of industry. In such cases what arrangements would be made in regard to annual leave?
He would have to be granted the leave within 18 months. There is no way of escaping that. I see the point the Deputy is making, but to make an exception of that sort in the legislation would be to leave it open to have the proverbial coach-and-four driven through it.
This section provides that the time for granting annual leave be determined by the employer, but this might lead to some difficulties. Would an employee not be entitled to appeal to some other person or body in respect of an unsatisfactory arrangement in this regard?
I have made the point that an employee or his trade union must be consulted one month previous to the arrangement being made. Therefore, the employer cannot decide unilaterally when annual leave should be taken. Presumably he must obtain the agreement of the employee and of his trade union in the first place.
Ultimately, though, it will be the employer who will decide.
I shall leave it to the Deputy's imagination as to what would happen if an employer, having failed to reach agreement with an employee in this regard, proceeded to make his own arrangements.
The point is that we would not wish that situation to arise.
Question put and agreed to.
Section 7 agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill."
I should like the Minister to explain section 8.
It makes it an offence if an employer fails to pay money due to an employee in respect of annual leave. Irrespective of whether the employer is prosecuted for the offence the employee can sue him. That section simply says that even where the employer is not prosecuted for this offence the employee can still sue him. This Bill gives him ample grounds for sueing him.
Question put and agreed to.
SECTION 9.
Question proposed: "That section 9 stand part of the Bill."
Is the Minister satisfied with the amount of the fine?
I may, if there is a large number of complaints arising under this section, consider a change in the fines. These fines are small on the surface, but the Deputy must remember that the employer will be sued for the amount of wages involved and will be obliged to pay the cost of the court proceedings. Three weeks annual leave adds up to something which an employer will have to consider before refusing to comply with this Bill.
If there is any widespread abuse in this area we will consider increasing the fines.
Is it true that the fine for a first offence is equivalent to one week's wages? That is not much of a deterrent.
I would not say that £25 per week is the average wage of those involved in manufacturing industries.
It is very small and I do not think it is much of a deterrent to employers.
The legislation gives the employee grounds for sueing the employer. An employee, when this legislation has been passed, will obviously have ample means of getting back his wages. It should be considered that the failure to pay an employee for holidays could involve the payment of from £150 to £200, taking into consideration costs, et cetera.
I should like to ask the Minister to explain subsection 4 of section 9 which states:
Where an offence under this Act was committed by a body corporate and is proved to have been so committed with the consent or approval of, or to have been facilitated by any neglect on the part of, any director, manager, secretary or other officer of the body corporate, he also shall be deemed to have been guilty of an offence.
Does that mean an employee can sue all of them?
It is a standard provision and it is similar to the one in the 1961 Act. It provides that senior officials, acting on behalf of a body corporate, who either knowingly or through neglect allow a breach of the law shall also be guilty of such offence. Ignorantia legis neminem excusat.
Will all of them be guilty or one of them?
Those who have the official titles to act on behalf of a firm will be liable.
Does that mean that a personnel officer is included?
If he was unwise enough. He would want to be a very neglectful personnel officer to be liable. It is possible.
Question put and agreed to.
Sections 10 and 11 agreed to.
SECTION 12.
Question proposed: "That section 12 stand part of the Bill."
This section is still vague to me.
The object is to discourage employees from working during their annual holidays. We are providing that they will not have a legal claim to recover reward for work done during annual leave. There was a similar provision in the 1961 Act and it made it an offence for industrial or shop workers to work during their annual holidays.
Does this mean in the same industry or outside employment?
Anywhere in industrial employment in the categories covered by the legislation.
Does it mean that people who take part time employment during their holiday period are guilty of an offence?
Not if they are with another employer. It is with the employer as defined in the legislation.
So it would not concern a second employer?
No, the legislation relates to the existing employer. If he does work for that employer, in the event of a dispute his salary is at risk in the sense that it is not recoverable. It is probably wrong to describe it as an offence because there is no penalty or punishment.
What is the position if an employer insists that an employee works during his holidays? An employer under this Bill is not entitled to pay the employee for this period.
The employer, if he was unscrupulous, could possibly get away with cheating his employee by not paying him the rate. We do not give the employee in that period the protection of law in terms of recovery.
An employer could insist on an employee working his annual leave but at the end of that term could refuse to pay anything and the employee has no legal right to claim. Accordingly, I believe that the wise thing for an employee to do in such circumstances would be to get the money in advance.
There is the possibility also that if there are exceptional circumstances, because of the nature of the work, and if he is forced to work in this leave period, he can recover his money. It was to allow that possibility of different patterns of industry, perhaps a key person in a unique situation, that we made a slight change in the 1961 Act which makes it an offence. It is not exactly an offence in this legislation except that one's salary or wages is at risk.
An employer can force an employee to work and then refuse to pay him.
I suppose it would depend on the interpretation of "force".
If an employee was earning £40 per week, an employer would not mind refusing to pay him because he will only be fined £25.
Generally under section 12 we had to conform with the ILO Convention 132 which has roughly the same intention as we have in this section.
That is all right where there is organised labour but where it is not organised or if a person is not a member of a trade union the position is very dicey.
No. Under this Act he has to be consulted about when his annual leave is to be taken and the employer must, over a stated period, give him annual leave. If he does not do so, he is guilty of an offence. When he sues the employer this legislation is on the employee's side.
But the employee will not be entitled to pay for the period worked?
Is that not a rather extraordinary situation? On that basis is there any need for this section at all?
There is because we have to conform with ILO Convention 132, which, in an attempt to make people take their annual leave, provides that agreement to relinquish the right to holidays with pay shall be null and void.
Question put and agreed.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."
In regard to subsection (1) of the section which says that "Regulations may modify any provision of this Act," must the Minister come before the House to implement this section, or is it done by ministerial order?
This section permits the Minister to make regulations modifying the provisions of the Act where he considers that compliance would be impractical in the case of a particular class of employee, or undertaking and I come before the House for an affirmative order.
The Minister comes before the House?
I would lay it before the House, which I think is the correct technical expression.
I think it is a very dangerous section. Suppose the EEC decide on something rather drastic, while we might have to accept it eventually, the House should be empowered to discuss it. The subsection is very loosely worded. It reads:
Regulations may modify any provision of this Act so as to comply with any international obligations which the State has——
That is all right.
——or has decided to assume.
We have assumed some of these things. If the State is going to assume other things, the Oireachtas must be given the opportunity of discussing them fully and know what the State is going to assume.
We have an Oireachtas Committee here to deal with all EEC legislation. As well as that, although I have the power to bring in this regulation, I must lay it before the Houses of the Oireachtas and in 21 days it could be annulled by a decision of the Oireachtas. The Deputy is right to say there are a number of regulations coming from the EEC which require scrutiny by the House, but we have a committee to do that.
Outside the EEC, taking any other international body, under what legislation is the Minister obliged to bring the order before the House?
Under section 14 (3) (b) which says:
Other regulations shall be laid before each House of the Oireachtas as soon as may be after they are made, and if a resolution annulling them is passed by either House within the next subsequent twenty-one days on which that House has sat after they are laid before it, they shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
In regard to the social policy which is aiming at four weeks' holidays by the mid-70s, would the Minister be able to implement that by regulation?
Question put and agreed to.
Sections 14 to 18, inclusive, agreed to.
SCHEDULE.
Question proposed: "That the Schedule be the Schedule to the Bill."
There appears to me to be a slight inconsistency in paragraph 3 of the Schedule. We had in the earlier part of the Bill a provision whereby the employer should consult with either the trade union or the worker about when the holidays were to be arranged and, I suppose, any change in that arrangement. Here we have the statement that an employer "may substitute..." Down a little further it states: "by giving to the employee notice of the substitution not less than fourteen days before the Church holiday..." I feel that is a little bit onesided. I seem to remember vaguely that in the 1961 Act there was something about mutual consent between the employer and the employee about substitution. There are parts of the country where people by tradition have the Church holidays off and work what are known as the bank holidays. I think that no change in that situation should be made without both sides mutually accepting it, but it appears to me that under this paragraph a change could be imposed against the unanimous wishes of the workers who would not want to change. I should like to have the Minister's observations on that, particularly having regard to the fact that earlier in the Bill there is provision for consultation.
Yes. The consultation is about annual leave, and while there is this obligation to notify a substitution, the Deputy is right to say that the same consultation does not appear to hold completely in the case of the public holiday section here. I agree with the Deputy that this would appear inconsistent, at least formally, but I would tell him it is the same situation as that which we had under the 1961 measure. There is no change in that. There is the obligation on the employer to inform the employee a fortnight before. However, if there is any abuse of this section, I would come back to the House quickly for any amendment of it that might be necessary. I would bear this in mind also because, as I stated the last day, I am giving an extra public holiday and there will be some discussion as to the day on which that public holiday should fall. I would not like to see such an extra holiday subject to bargaining or change.
There should be an element of mutual agreement in regard to any change.
Yes. I take the Deputy's point, but I am caught between my anxiety to get legislation out which is an advance in some important respects on previous legislation and my desire to include other improvements which would delay the legislation. However, I can assure the Deputy that if there is any case of abuse in this area built up at all, even in a short period of operation of the legislation, I shall have no hesitation in coming back to add necessary amendments.
Why is it necessary to have this in at all?
In this whole area of holiday legislation—this is the third measure in the history of the State— there is a very big demand made by both sides for flexibility, which, I am informed, has to do with local authority situations around the country. I said that the element of mutuality in agreement of transferring substitution, if it holds in the area of any relief in general, should also hold in this particular area. I shall look at it at a later stage. Deputy Pattison brought up this point. If action is shown to be necessary in this area, I shall not hesitate to take action.
Question put and agreed to.
Question proposed: "That the Title be the Title to the Bill."
Am I to take it that the Minister intimated earlier that the provisions of this Bill will be applicable to part time teachers and commission agents and to people who heretofore were not provided for in the matter of holidays.
On the general principle of casual workers who have not fulfilled the 1,600 hours, which were the iron law requirement of previous legislation, one got nothing. Under the present legislation based on the month as a unit we are giving a proportionate leave entitlement to anybody who comes within the ambit of the legislation and part time teachers would, therefore, qualify.
I do not think commission agents would come under a contract of service and there would be difficulty there.
The teachers are in a very special category because a teachers is part time in so far as he has not got the number of hours off time which would entitle him to a whole-time appointment. Teachers generally have a shorter working year. A teacher doing 900 hours off times qualifies for a permanent whole time appointment, whereas someone with 750, 820 or 830 hours is employed in a temporary capacity but is working practically a full week and there is no provision at all for him in the matter of holidays. He would not be working them anyway, but, unfortunately, for him they are holidays without pay, and I am wondering if it is the intention or if it is presumed that provision can be made, as I think it should be made, for people in that category.
There is a difficulty of legislation covering people in dual employment. This is where the difficulty resides. This legislation represents an improvement in the existing situation. It would be a mistake, however, to suggest that it provides a formula for all part time workers. It does not. A great deal can become comprised under the heading of dual employment. A part time teacher would qualify if he had, for example, 120 hours per month. A worker can have one week's sickness in a month working a three week 40-hour week; he would be proportionately entitled to such a unit base in order to get annual leave based on that. This is the smallest unit on which someone can claim under this legislation, taking into account the rough criteria permitted in certain situations where someone does not fulfill these particular requirements.
There is a problem in the case of the commission agent because his contract of service would not permit him to come under this legislation. There is a genuine difficulty there.
The commission agent is my second concern. A stronger case can be made for the teacher who has been working practically a full week over the years. Off times he is paid by the hour and his hourly rate can be in excess of that of a whole time teacher. There is no provision for holiday pay and I am hoping that under this legislation regard can be had for that type of teacher.
Yes, so long as he fulfils the minimum requirements. I think we brought it down as low as we possibly could in the circumstances.
Question put and agreed to.
Bill reported with amendments, received for final consideration and passed.
