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Dáil Éireann debate -
Tuesday, 23 Nov 1976

Vol. 294 No. 4

Anti-Discrimination (Unfair Dismissals) Bill, 1976: Committee Stage.

Before we proceed, I have been informed that some of my amendments have been ruled out of order. Unfortunately I have not got the letter, through some slipup. I would appreciate if the Ceann Comhairle could tell me what amendments are referred to.

The effect of amendments Nos. 2 and 8 together is to apply the provisions of the Bill to employees who are paid out of State funds. This could involve a charge on the Revenue as the State could become liable for compensation, costs and so on under the Bill. Such an amendment by a Private Member is out of order under Standing Orders.

I do not know if I am in order in questioning the ruling on this issue——

It is not in order to question a ruling of the Chair in this matter. It is self-evident, and there are many precedents for it, as the Deputy must know.

While there may have been precedents, this is an Unfair Dismissals Bill that could in no way——

I am sorry, Deputy, the ruling may not be questioned now.

We will come to it when we are discussing the sections and I will continue to question it.

SECTION 1.>

I move amendment No. 1:

In page 2, line 29, to delete "that notice expires" and substitute "the termination takes effect".

On the Second Stage of this Bill I said I believed this Bill would require a lot of examination and detailed investigation in Committee. It affects the business life of the employer and employee. We should try to improve and streamline this Bill to ensure that it is fair to all sides of our industrial society. In addition, the terminology of it should be simplified as far as possible so that workers who will be affected by it can follow it easily.

We did not oppose the Bill on Second Stage because no doubt there is a need for such a measure. However, one must question the timing of any legislation that could aggravate our very bad unemployment situation. Out of concern for industry at the moment we must endeavour to create further jobs and continue existing jobs. As we go through the Bill in detail we will go into some of the effects that I fear this legislation will have on both the employer and the employee. This amendment is basically a tidying up operation, an operation we believe is necessary. Hopefully we will be submitting an amendment at a later stage to shorten the six-month period within which a person may bring a case for unfair dismissal, because we believe it is six months too long. I hope that the Minister will accept the good intentions behind this amendment. The definition section refers to the date on which that notice expires.

The reason for that is that a person could be given one month's notice and at the end of two weeks, by mutual agreement or otherwise, the employer might give him money in lieu of the two weeks' notice. Rather than have the date at which the notice expires as the operative date, it would appear sensible to have the date on which the termination takes effect as the operative date. A longer period of notice could be given, such as two months. Before the notice had expired the employer could decide to pay out money in lieu of notice. Therefore, for the purpose of this Act it would be tidying it up by referring to the date at which the termination takes effect. The legislation would be easier for everybody and a case of unfair dismissal could be dealt with reasonably quickly. There could be two, three or four weeks of a lag between both dates. Two or three weeks lost at this stage would not be to the advantage of the employer or the employee. It would be a dormant period within which the employee was not working with the employer. He had taken the money in lieu of notice for part of the period of notice. It would serve no useful purpose in that case that the date be the date on which the notice expired.

Whether the notice was for a period of two, four or eight weeks it would mean that the termination would take effect from the date on which the notice expired. In other words, it would coincide with what is contained in the Bill. In good faith I have pointed out to the Minister that the amendment would have the effect of tidying the Act while it would not affect a person who worked during the entire period of notice. It would prevent there being a dormant period of any number of weeks from the time that an employee may have served part of the period of notice and was then paid off by way of wages in lieu. This is a reasonable amendment and I ask the Minister to accept it in the light of it being an improvement to the section.

I have listened carefully to the Deputy but having considered the matter it is our opinion that the phrase "that notice expires" is more appropriate than that suggested in the amendment. Also, there is the problem that acceptance of the amendment might lead to further problems of definition. In our opinion the formula we have used is more beneficial to the employee in relation to the qualifying service as laid down in section 2. However, the Deputy has been considering this question carefully so I could undertake to have another look at it before Report Stage.

I take the point made by the Minister and I am happy enough with the situation in which he indicates his preparedness to look at the matter between now and Report Stage although I reserve the right to put down an amendment for that Stage, if necessary. I am of the opinion that there might be time lag periods which are dormant and of no benefit to anybody whereas if the person continues to work during the full period of notice it will be a matter of indifference whether the terminology used is that contained in the section as drafted or as in the amendment.

Amendment, by leave, withdrawn.

With the permission of the Ceann Comhairle I wish to raise on the Adjournment the subject matter of Question No. 8 of November 18th.

The Chair will communicate with the Deputy. Amendment No. 2 has been ruled out of order.

While accepting the ruling of the Chair I would point out that this Bill deals with the question of unfair dismissals.

Rulings of the Chair may not be questioned in the House but the Deputy could speak about such matters in the office of the Ceann Comhairle. These rulings are given after mature consideration and cannot be raised here other than by way of motion.

Obviously, then, I cannot question the Chair's ruling but if the Leas-Cheann Comhairle will bear with me for a moment——

I hope that the Deputy is not endeavouring to argue the merits one way or the other of the ruling.

The merits of the amendment are clear.

The Deputy may talk about that when we are on the section.

But the situation is that I am being prevented from discussing an amendment which I wished to have discussed.

The amendment was ruled out of order on the grounds that it would involve a charge on State moneys. Consequently, it may not be moved.

I fail to understand that reasoning but if the Chair could explain to me why the amendment would involve a charge on the Exchequer, perhaps I could accept the ruling.

It would bring in a large range of civil servants and the Minister would have to pay in cases relating to that category should they come within the terms of the Bill.

Surely he would have to pay only if civil servants were dismissed unfairly. Is the Chair not protecting the Minister in this regard by not allowing the amendment?

The amendment involves a potential charge on the Exchequer and consequently has been ruled out of order.

I do not under stand that.

The rule is one of long standing. It is contained in Standing Order 119 (1) which reads:

A Bill which has as its main object the appropriation of revenue or other public moneys shall not be initiated by any member, save a member of the Government.

That is a completely different situation from the one we are discussing because the only way in which my amendment could involve a charge on the Exchequer would be by one or other of our Ministers dismissing people unfairly.

Perhaps I should read paragraph (3) of the same Standing Order:

An amendment to a Bill which could have the effect of imposing or increasing a charge upon the revenue may not be moved by any member, save a member of the Government or Parliamentary Secretary.

I do not think that rules out my amendment.

That is how the Chair has ruled.

In these circumstances may I give notice of my intention to consider putting down the amendment again for Report Stage?

Perhaps the best way for the Deputy to deal with this matter is to raise it with the Ceann Comhairle at his office or with his officials.

Perhaps some of the fault here lies with me because I did not have the opportunity of collecting the letter, which I expect was at my office, informing me of the Chair's decision. However, may I submit that what is involved is not a potential charge on the Exchequer except in the event of unfair dismissal?

The Deputy will accept that in that event it would be a charge on State funds.

We seem to be creating an anomaly here.

Perhaps the Deputy would consider the matter.

I have no alternative but to accept your ruling.

I accept that under Standing Orders the situation is as outlined by the Chair but later in the Bill there is the question of exclusions. While this amendment has been disallowed on the basis of Standing Orders, I take it that there is nothing to prevent the Deputy arguing the point concerned when we are on the section and of indicating how the Bill is encouraging the Minister——

I have informed the Deputy of his right to make his argument on the section.

He is entitled to suggest to the Minister that an amendment similar to the one being disallowed be introduced on Report Stage.

That would be allowed on the section.

I move amendment No. 3:

In page 3, line 29, after "employment" to insert "and an individual in the service of a local authority for the purposes of the Local Government Act, 1941, shall be deemed to be employed by the local authority".

What we have in mind here is the situation in which some doubt has been created by earlier legal decisions concerning the application of legislation to employees of local authorities. Representations have been made to me by unions organising such workers and in response to these I have tabled this amendment. The provisions of section 1 will then mean that those classified as servants under the Local Government Act, 1941, will be covered. As the House knows, officers are already covered under existing procedures but there was some doubt as to whether some categories of general workers in local authorities were covered. This amendment seeks to ensure that they are covered.

I have no objection to the amendment which, in fact, goes a little of the way towards achieving what I had hoped to achieve in amendment No. 2. As far as I can see, it covers only servants of local authorities and I take it that officers are excluded. I should like the Minister to define the difference between servant and officer of a local authority. It appears to me that section 2 of the Bill specifically excludes officers of local authorities. That is one of the points I was trying to get over. I thought a Bill such as this should set out basically to legislate for unfair dismissal whether in the private or the public sector, with certain reservations for the weaker sections where perhaps it may be too soon to do it or, in fact, it might be harmful to employment prospects. Other than that, I should have thought the approach should have been a broad one directed at both public and private sectors. Here we have a small group in the public sector being catered for. I agree with this. But it only includes the servants of local authorities and it prompts the question: why should we have a distinction between servants and officers?

The Minister will say that there is other legislation, but I am not sure that there is any legislation catering for unfair dismissals. This is a new concept and I believe it should be introduced in the beginning so as to cover both public and private sectors, not just a small section such as servants of the local authority as this amendment does, but the entire sector.

These distinctions and categories are drawn from the relevant Local Authority Acts, notably the Act of 1941, which separates those working in local authorities into those two categories. Officers correspond to clerical, administrative and professional workers while those in the other category would be in the general worker class such as caretakers. The second category of local authority workers are not covered by any procedures at present whereas the officers have the benefit of statutory procedures. That is the main distinction as regards this legislation. We feel it is important that this legislation should include the second category, general workers in local authorities. One category is already covered in legislation while the other is not and we feel they should be included.

I agree with the inclusion of this section of workers, but surely in this Anti-Discrimination Bill the Minister must concede we are now discriminating between two groups or sections of people working in local authorities. The Minister adds that statutory procedures are available to them. In the case of any dismissal at any level the statutory procedures will always be available, but admittedly these may be difficult to use and it may be difficult to get recompense under them. If a caretaker or a general foreman is dismissed he has redress under this Bill, but there are many people in local authorities who may be vulnerable. We have had experience of people who have been dismissed and, perhaps, had not the necessary resources to avail of statutory procedures to claim against the local authority concerned. Surely they deserve to be protected under this Bill also? Would the Minister not consider extending it to cover them all?

The Deputy appreciates that they are covered under procedures that have been operating for some time, procedures which relate to codes of conduct leading to disciplinary action. These already operate for the first category of local authority employees, the officer category. These procedures deal with the kind of inquiries to be initiated. The general emphasis of all the codes that operate for these officers of local authorities for the most part depend on suspension for disciplinary reasons. On our reckoning very few dismissals, in fact, occur. The thrust of this legislation is to protect those who have no protection, to introduce disciplinary criteria where none operated up to the present and in general to extend certain rules that will be known to both sides of the employment contract, rules which will have to be observed before an employer can take the final step in any disciplinary procedure— the employee's dismissal. That is the general intention of this legislation, to bring this protection into an area where it does not at present operate or exist. My point is that such protection exists for this first category of employee under the Local Authority Acts. To hold up this legislation for the inclusion of all categories whether protected or not at present would involve us in quite an extraordinary amount of amendments of other statutes. I do not believe it would justify the delay involved when you take into account that the main necessity for this legislation is to protect those who are at present on their own in respect of disciplinary procedures.

I do not get the Minister's point. Statutory protection is available to officers under the ordinary laws but they do not have any protection against unfair dismissal as laid down in this Bill. This is why I believe they should be included. We will have the opportunity of discussing the section later but because my second amendments has been deleted this amendment leaves the definition of employer very inadequate. This is, of course, going away from the local authority part of it. I would have felt that the correct procedure for the Minister in relation to section 1 would be to amend "employee" to include: "An individual in the service of a local authority for the purposes of the Local Government Act, 1941 shall be deemed to be employed by the local authority". "Employer" is amended but the definition of employer does not go far enough. However, we will have an opportunity of discussing that under the section.

The amendment, reading it closely, would appear to relate more to the type of employee covered. In other words, it means an individual who has entered into or works under a contract of employment or an individual in the service of a local authority for the purposes of the Local Government Act, 1941 shall be deemed to be employed by the local authority. I think the wrong word in the definitions has been amended but I still do not understand why the Minister says that an officer of a local authority is statutorily protected. There is to my mind no unfair dismissal legislation. Surely the officer deserves the same treatment as the servant.

I would return to the point that they do have these existing procedures under which they are covered and others in local authority employment do not have any such protection. That is the main reason why I believe their inclusion would be helpful and why I am not convinced of the case that the others should be brought under the ambit of the legislation at this point.

Amendment agreed to.
Question proposed: "That section 1, as amended, stand part of the Bill."

This is the definition section of the Bill. We have already discussed an amendment in regard to the date of dismissal and I appreciate the Minister saying that he will look at this between now and Report Stage. Paragraph (c) states: "Where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract for a specified purpose." Does this refer to, for example, a building contractor who takes on a major contract of two, three, or possibly four years employing anything from 200 to 1,000 people? Does this section protect this type of contract or does it define the date of dismissal as regards this type of contract?

Is the Deputy going back to his amendment?

No, I am asking whether this section covers the building contractor, the public works contractor who, perhaps, for a specified period of two or four years is doing a contract involving 200, 300 400, 500 people which is not a permanent job? Is that the section which defines dismissal in that case?

I think it is section 2 (2).

We are dealing with the definition of dismissal.

What the Deputy is referring to is section 1 under "dismissal". It could refer to the categories he is talking about.

Are they covered in that?

By the relevant section which is 2 (2).

I accept that entirely.

It could cover the categories the Deputy is referring to.

I asked the reason for that definition. Let me get back to the employer. I do not think I am hopping back to the amendment which was disallowed and it would not have been disallowed if I had not included the end of it. I suggest that the Minister might consider amending this before Report Stage. " `Employer' in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, worked under) a contract of employment." Surely that definition could include the words "or the trade, business, industry, profession, or any activity carried on by the person or body of persons whether corporate or incorporate, whether registered in the State or not". I have to omit the last part of course.

Could the Deputy say why he regards that as important?

Because "employer" in my opinion is not adequately defined. It says: "employer in relation to an employee means the person..." Who is a person? Is Shell Oil Company or any of the multinationals persons?

What we have taken up here is more or less a similar description in comparable legislation. We are satisfied that for all legal necessities that might arise the employer is described adequately. The extra explanatory material that the Deputy wants added here is——

I was never of the opinion that any past legislation could not be improved on. If that was spelled out to me as being the definition of an employer in these circumstances I feel it is inadequate.

Referring back to Deputy Fitzgerald's question on section (1) (c) under "dismissal", in the ports of Dublin, Cork, Galway and elsewhere, the river pilots are not employees of the port boards. They are on contract. Would they be covered in this section? They work for the port boards, they are looked after generally by them but are not employees. They are under contract.

I think they are employees. On the legal definition would they not be employees of the boards?

No, they are not employees. They are employed by the board. They do the work but their terms of employment mean they have a contract with the Board. The Minister might have a look at the situation.

I thought they were employees of the boards.

No, they are under contract.

Before I leave the "employer" situation, would the Minister not even consider changing this to "...employee, means the person or persons..."? I think that would be more correct.

Let me deal with two more definitions, first, "industrial action" and second "strike":

"industrial action" means lawful action taken by any number or body of employees acting in combination or under a common understanding, in consequence of a dispute, as a means of compelling their employers or any employee or body of employees, or to aid other employees in compelling their employer or any employee or body of employees, to accept or not to accept terms or conditions of or affecting employment;

That appears to refer to a group. What is the position of an individual?

All these definitions are taken from the general Interpretation Act, 1937. We are satisfied that all these terms are adequate. We understand from the draftsman that all that is needed by means of definition is already included here. The Deputy's amendment would not make any great difference to the Bill. I agree that in the definition of "strike" it does not refer to individuals but we are assured that the entire gamut of industrial action is covered in the explanation of these terms in this legislation and are in accord with the Interpretation Act, 1937.

My reason for referring to that specifically here is that we will on a later section be dealing with the "individual".

Question put and agreed to.
SECTION 2.

I move amendment No. 4:

In page 4, subsection (1) (a), line 3, before "who is dismissed" to insert "(other than a person referred to in section 4 of this Act)".

This is a drafting amendment which clarifies the intention behind section 4, namely, that the Bill shall apply only during apprenticeship once the initial six months' probationary period has expired.

I see no reason for not accepting that amendment. I understand why it was included and when we come to section 4 and the amendments we will have an opportunity of discussing it.

Amendment agreed to.

I move amendment No. 5:

In page 4, subsection (1) (a), lines 3 to 5, to delete "who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him" and substitute "whose contract of employment commenced less than one year prior to the date of his dismissal".

The reason for this amendment is that I fear there may be a loophole that could be used to the disadvantage of the individual. Subsection 2 (1) (a) reads:

an employee who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him...

That is not tight enough to guard against the merger, the takeover, the change of employer or the change of the employment structure of the individual. For this reason I suggest that instead of the words used, we suggest "whose contract of employment commenced less than one year prior to the date of his dismissal". In other words, his contract of employment with the firm, or the people or the person, whether it changed as a result of a takeover, being purchased or anything else, under this subsection should be tied to the job rather than to any change in persons that may have taken place within a period of 12 months.

My worry about this amendment is that it could be used as a means of evasion. I appreciate that this is not the Deputy's intention. The requirements of subsection (1) (a) are tied to the concept of continuous service as embodied in other forms of worker protective legislation. I prefer to think that this is a better way of dealing with this problem from the employee's point of view.

We seem to have the same complaint—the Minister about my amendment and I about the original subsection. As I read this subsection if John Murphy, an employer, has 20 employees and sells his entire business to James Murphy, depite the fact that a man may have worked for John Murphy for 24 years, if the business is sold to James Murphy before this Bill becomes law, the chances are that this man may only have been employed by James Murphy for six months and James Murphy will not come under the terms of that subsection which says "who, at the date of this dismissal, had less than one year's continuous service with the employer who dismissed him". If we relate that subsection back to the definition section we will find the definition of "employer". There is a very wide loophole here that has to be closed. I thought my amendment was most reasonable and would be prepared to accept the Minister having another look at it but I believe the subsection as it stands is not adequate to close that loophole.

The Deputy is concerned about the change of employer and feels that a person who, through no fault of his own, finds himself in a changed employment situation, would not be covered under this section. Subsection (4) reads:

The First Schedule to the Minimum Notice and Terms of Employment Act, 1973, as amended by section 19 of this Act, shall apply for the purpose of ascertaining for the purposes of this Act the period of service of an employee and whether that service has been continuous.

This ensures that continuity of employment is preserved. Paragraph (7) of the First Schedule of the Minimum Notice and Terms of Employment Act, 1973 states:

If a trade or business is transferred from one person to another (whether or not such transfer took place before or after the commencement of this Act) the continuous service of an employee in that trade or business at the time of the transfer shall be reckoned as continuous service with the transferee and the transfer shall not operate to break the continuity of the service of the employee.

This would appear to meet the Deputy's concern. His amendment would make the position perhaps not quite so secure.

Perhaps ten or 12 years ago Deputy G. Fitzgerald's amendment would not have been necessary but in these days of mergers and counter-mergers, takeovers and counter-takeovers, an employee has a sense of insecurity and fears any mention of a possible takeover. If accepted, Deputy G. Fitzgerald's amendment would give the worker some reassurance and remove from the industrial scene one of the biggest grievances of workers nowadays, which is that in almost every takeover of a large concern there is some trouble and employees are penalised in one way or another. A new broom sweeps clean. Deputy G. Fitzgerald's amendment would fill a great void in our present legislation on industrial relations and I would urge the Minister to accept it.

I answered Deputy G. Fitzgerald's point earlier. Deputy Moore has made the same point on the merger question but I feel that it has been effectively answered in that the minimum notice does apply.

That section appears to cover it, but I am still concerned because I believe this Bill to be very explicit. My form of words may not be the ideal answer but the point should be spelled out here for the workers. All Bills referring to rights of workers and unfair dismissals should be simplified as far as possible with as little cross reference as possible.

The subsection needs far more tightening than it has at present. Why not use a better form of words? My amendment may leave the position open to abuse, too, but I can see little need to refer only to the employee's one year continuous service with the employer who dismissed him. It must relate to that year's service being within the employment from which he was dismissed. There is a certain difference. There should be a reference to the job he holds down within a particular company and not just to one year's continuous service. While section 7 covers this to a certain extent, I still fear there may be a loophole, and the section should be tightened. By all means rely on other Acts, but for the guidance of the person trying to read this Bill the reference to unfair dismissal should be included.

I will have a look at it but I feel that this amendment might endanger the very people the Deputy is seeking to protect.

Amendment, by leave, withdrawn.

Amendments Nos. 6 and 7 may be discussed together.

My amendment, No. 7, is a substitute one. I have withdrawn my request to have lines 14 to 17 deleted and instead to have a new paragraph submitted. There is a distinction between the two and I feel that they should be discussed separately.

They may be discussed together, with separate decisions, if you like.

I move amendment No. 6:

In page 4, subsection (1), lines 14 to 17, to delete paragraph (c) and to substitute the following paragraph:

"(c) a person who is employed by his spouse, father, mother, grandfather, grandmother, stepfather, step-mother, son, daughter, grandson, granddaughter, step-son, step-daughter, brother, sister, half-brother or half-sister, is a member of his employer's household and whose place of employment is a private dwellinghouse or a farm in or on which both the employee and the employer reside,".

This, again, is a drafting amendment which clarifies the intention—that this exclusion is intended to deal with problems raised in farming enterprises and private households.

I do not disagree with the amendment but I cannot agree with the Minister that it is only a drafting amendment. The extension itself is too narrow. I realise the problems that would be created in having this Bill cover the type of person in the employer's household, relative or otherwise. I also realise the problems it could create for the farmer and the employee. Here, however, it is confined to a person residing with him. Perhaps the Minister should have gone further here. It would appear to me to be impractical to have this Bill applying only to a farmer and his employee. It would be an employer and an employee situation. In fact, it would be irrelevant if they resided within the one house. The amendment should have gone that far.

On the section itself, I will have the opportunity of discussing the relationships because I would question in greater detail some of the relationships concerned. The Minister will probably say that it is in line with other legislation. I think that it is not, for the most part, in line with anti-discrimination legislation which has been before the House. It is a very broad group of relatives and while, of course, we must accept that we cannot legislate for the family unit, at the same time we must realise that discrimination takes place. Unfair dismissals could take place on a straight line basis, such as brothers and brothers or brothers and sisters, and these could be very unfair indeed. While it is probably not desirable to legislate in such manner as might set brother against brother, at the same time one must have some protection for an individual who might be at the weaker end of a sort of partnership or employee-employer relationship. I would ask the Minister to consider this aspect in the interests of the farming community.

My anxiety was to meet the points made on the Second Stage that "close relative" was a little vague and might give rise to abuse. The definition of relative adopted here is that used in the redundancy code and the minimum notice legislation. Certain relationships are excluded. I believe this amendment meets many of the viewpoints put forward on the Second Stage.

This is much more than a drafting amendment, as the Minister suggested initially. The restriction relates to responsibility. Obviously the Minister intends to limit the subsection to those whose place of employment is a private dwellinghouse or a farm. I am concerned about the farm element. There are occasions where a father and son or two brothers may work the farm but not actually reside on it. One or other may reside in the nearest town or village. He may be totally and utterly dependent on his employment on the farm. There are many such cases and I am wondering why the Minister limits this to residence on the farm.

This is an area of infinite gradation in relationships. We have done our best to narrow the area to ensure the provision will apply as closely as possible. Deputies appreciate it is not possible to cover all the variations in relationships where injustice might occur and where the provisions of this Bill should clearly apply. On the other hand, we have to ensure that in trying to encompass practical difficulties this legislation does not become an element in stepping up the possibility of family quarrels. The residence qualification is clear. It is possible that in certain instances someone might not reside on the actual farm but we have to draw the line somewhere.

What I am questioning is whether the Minister's proposed restriction is quite what he intends. I doubt very much if the Minister or his advisers, even though the line must be drawn somewhere, would want to exclude people from the benefit of this protection. The majority may live on the farm but there are cases in which a father or a son may live some distance from the actual farmhouse, for good social or family reasons, but will be totally dependent on his employment on the farm. Why should such a person be in a different position from the person who actually lives on the farm?

Even though he may not be living on the actual farm he would not be excluded and the Bill would apply.

If that is what the Minister intends, fair enough.

What we have been trying to do is to ensure this legislation does not become an element inducing family quarrels. What we are trying to do is to say that in certain categories of relationships this will not apply and we will try to make it sufficiently narrow in those areas in which it should not apply. The cases mentioned will be covered and the Bill will apply in those cases.

What is the position in regard to adopted children?

In the case of adoption the adopted son would legally be described as the son.

Perhaps the Minister would have a look at that before the next Stage.

Amendment agreed to.

I move amendment No. 7:

In page 4, subsection (1), after line 17, to insert the following paragraph:—

"( ) An employee in employment which employs less than five persons".

I have given a great deal of thought to problems that may be created by this Bill. I said earlier on Second Stage that it was important that the legislation should not in any way hinder or harm employment. I appreciate fully that the Minister is trying to narrow the area of exclusions as much as possible. I am anxious to see the public sector under this umbrella but I am also concerned about the employer who has a small number of employees, particularly in rural Ireland but also in most of our cities and towns. While these may be small units of employment they add up to quite a sizeable number throughout the country.

I want to see the continued existence of these small units and I want to ensure that we do not have what I might call a conacre-type of employment being introduced. In such a situation an employer might be inclined to engage a person on an 11-month basis and then find he did not want the person concerned. The employer might continue for six months without anybody and then he might take on another employee for 11 months.

These small units of employment are most beneficial to the local area and we want to see them continue. I could see them coming under this Bill if the undertaking in question had six employees. The Bill leaves two options open to the employer. First, that the employee be re-engaged on similar work or on work that is suitable. In a small unit comprising perhaps only five persons it would be very difficult to re-employ a person on similar work; it would be much easier in a large company. The second option if the employee is not re-engaged is the 104 week payment. In the case of a small business in the country, I do not believe the owner will be capable of using that option.

If human nature were perfect there would be no need to have legislation dealing with unfair dismissals but, human nature being what it is, we will never have an ideal situation and we must legislate accordingly. I have made a few points to show why I think small units should not be included. First, it would be beneficial to the employment of the person in the short term at least; secondly, I do not think the small business would be able to withstand the provisions of the Bill; and, thirdly, I would be afraid a ruthless employer might adopt a system of employing people on the basis of 11 months—what I previously referred to as the conacre type of employment.

I do not believe that we should diligently follow British legislation— anything but that—but there is such an exclusion in some of their legislation which gives the impression that their legislators saw the need to protect employment within small units. There is also another consideration, though perhaps of lesser importance. Many people will not know that this legislation which affects them is going through the Dáil at the moment. They may be engaged in any kind of scramble without knowing of the existence of the legislation. There is also the possibility that when employers hear about this Bill they may be inclined to reduce their numbers. None of us wants legislation that might inhibit employment in any way or that might be inclined to make people reluctant to create jobs.

I appreciate the Minister's dilemma in the matter but perhaps he might consider adopting my suggestion even as a temporary measure. I agree that this Bill should apply to business and industry as far as possible, but perhaps it would be advisable to see how it works in the larger industries and then extend it. Initially there is a case to be made and to be listened to why the small units should be excluded.

Let us take the case of a small unit where two people are employed. I do not want the Minister to get the impression that I am supporting the idea of unfair dismissal, but I would point out that at that level of employment one would find far less unfair dismissals than in other areas, simply because there is normally a local friendly relationship between employer and employee. The employer has two options open to him. There is the option of re-engagement, which may present problems for both parties. On the other hand, most small employers would not be able to meet the 104 weeks pay-out.

There are quite a number of such small units throughout the country and I would ask the Minister to give serious consideration to my amendment. It may be necessary to have a time limit put on it but I am convinced there is need for some protracted period to give us an opportunity of seeing how the legislation works. It will also be necessary to let people know about this legislation and advise them on the problems that may be created. I should like to see the small employment units expanding and thus coming under the control of the Bill. I have set out a number of reasons why I consider the amendment essential and I would ask the Minister to consider it seriously.

My main problem about this amendment is that I really wanted the Bill to apply to firms of all sizes. We do not have any reason to think that the problems of unfair dismissal will apply less to small firms than to large firms. The possibility of a person being unfairly treated exists in all employments irrespective of size. One could not accept the idea that because a firm was a certain size the employer in that firm could, if he wished, act unfairly in relation to the dismissal of his employees. It is a matter of opinion whether or not relations in the small firm are better than in the large one. It cannot be maintained that the possibility of unfair dismissal does not exist in the small firm. It exists in any firm irrespective of its size. I would not agree that this Bill should not apply, that it should exclude firms of five employees.

Dismissals can occur in an arbitrary fashion in small firms with little redress even now. I could not see myself agreeing to accept this amendment. Deputy Fitzgerald said that employers could, to some extent, get around the provisions of this legislation by employing people for fewer than 12 months. The Bill does not apply to any person unless he or she has been 12 months in continuous employment. Deputy Fitzgerald asked whether an employer who employed somebody for 11 months escapes the provisions of this Bill? It is possible for me to stop this type of abuse under the powers of amendment in section 16 (1) by resolution of the Oireachtas. I will not hesitate to invoke that power if a small number of employers attempt to escape the provisions of this Bill by adopting such an approach. I could not see my way to accepting an amendment which says that because a firm employs only five employees the employer in that firm should not be forced to accept the provisions of this legislation. The Bill should apply to all firms irrespective of size.

The Minister has not convinced me. He said that this will be an all-embracing Bill. I agree with the sentiments behind why it should be an all-embracing Bill. I would not attempt to condone an unfair dismissal at that level. I am very genuinely concerned about this matter. Concern has been expressed by all shades of industrial society, some, perhaps more publicly than others, that legislation of this nature at a time of high unemployment can be ill-timed.

It is desirable for us to make progress in a reasoned sort of way. We are now introducing an Unfair Dismissals Bill. Should we now concentrate initially introducing that to cover most of the commercial and industrial business which we would do even by accepting my amendment? I do not want to push the Minister completely against his will but I ask him to consider this matter. I am concerned that all the people in our constituencies, whether they employ one, two, three, four or five people, continue to employ those people and also more and that they are not encouraged by any legislation to use ways and means of getting around it.

I should like to have an assurance from the Minister that he will look at this matter between now and Report Stage. I believe he will find that there is a case for this particularly in rural Ireland. I take the point he made about the danger of an unfair dismissal, which I absolutely condemn. In small businesses there is less danger that unfair dismissals will occur than in a large firm. If it happens under this legislation it will be very difficult for small employers to cope with the situation which will arise.

I believe that lines of communication from Dáil Éireann to many of those people will break down here and there and they will not even know that we discussed this legislation. They will not know that this legislation has been passed. In fact, they will not know anything about it until the problem arises. I understand there was a limit of five in some of the legislation introduced by the Labour Government in Britain. They must have some specific reason for doing this. If this is accepted, we will have moved a certain distance. It can be easily extended. The Minister could write something into the Bill for that extension after a period. The small unit should not come in on the first day of the introduction of the Bill. A period of six or 12 months should be allowed elapse.

I would like to accommodate any Deputy, no matter what side of the House he sits on, in relation to any amendment that would improve things or incorporate a new suggestion if it adds up to assisting the main intention of the Bill. I do not want to assure the Deputy that I will look at something that I am afraid I cannot see myself incorporating. If we agree to exclude firms with five employees on the general grounds that such employers should not be asked to accept the same obligations as employers of larger firms, there could be some schools excluded. It could happen that certain schools that have four teachers would be excluded from the provisions of this Bill. I do not think any of the teachers' organisations would be too happy about seeing such exclusions accepted by us. I am sure the Deputy would probably have as many reservations as I have about the exclusion of this kind of school from the provisions of the Bill. This is the kind of problem which could arise if we were to change the Bill and bring in this criteria that if there are five employees in a firm the provision of the Bill should not apply to that firm. There is no rational basis on which one could incorporate such a provision in legislation of this kind. We are safer to say that the Bill should apply to all employments irrespective of size.

I feel a bit concerned about that situation. I accept the necessity to have this legislation as all-embracing as possible but I do not take the point made by the Minister on the school situation and the teachers. Can the Minister tell me if in the small school he referred to the school manager is the employer?

Yes, the manager would be the employer.

I felt the teacher was in a different category, that while he was employed by a school manager he was one of a number of people who would be included in a group.

I am trying to ensure that the Deputy will not suffer any damage as a result of his suggestion.

I am trying to be helpful to the Minister and I am sure there are many Deputies behind him who agree with the point I am making about small country towns. I am talking about small businesses employing three or four people.

Every professional office would be the same.

And every drapery shop and grocery store.

The Deputy would be excluding those?

There would be no worry about professional people but I would be worried about the small shops being in a position to pay out 104 weeks. If the Minister is not prepared to consider my amendment I will withdraw it but I would ask him to consider introducing one on similar lines on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 8 is out of order.

I am not happy about this situation.

It is in the same position as the one referred to earlier.

I do not see how it can be held that the amendments referred to are putting a charge on the State unless the Minister becomes one of these hire and fire merchants. Assuming that the Minister is not going to become one of those merchants—we all assume he will not— the decision of the Chair cannot be right.

As already explained, amendments Nos. 2 and 8 apply the provisions of the Bill to employees who are paid out of State funds and that could involve a charge on Revenue.

It could not unless a man is unfairly dismissed. If a man is unfairly dismissed the Revenue deserves to have a charge put on it. I suggest that there is a difference here.

They are in the same position and the Chair suggests to the Deputy, if he wishes further information on the matter, to raise it on the section.

Question proposed: "That section 2, as amended, stand part of the Bill."

This is the section where we have all the exclusions. My amendment No. 8 specifically referred to this section and sought to have all public sector employees included. I find it hard to understand why these people, the gardaí, civil servants, prison officers, officers of local authorities and health boards and officers of vocational education committees and committees of agriculture, are excluded. I should like to know if vocational teachers are classed as officers of vocational committees.

Are vocational teachers excluded?

As officers they are.

However, the primary and secondary teachers are included. Surely that creates an anomaly that is hard to understand. We have already had reference to the exclusion of the chairman of the Army Pensions Board. This is continuing the divide between the private sector and public sector. In the past cases have been taken through our courts by people dismissed by local authorities and State Departments and those employees can still avail of that machinery but surely legislation of this type should be introduced on the basis of it applying to as many people as possible. It should give to all employees the right of going to the normal channels of the courts or a rights commissioner or the appeals tribunal. If that facility is being given to the employees in the private sector, there is no reason why it should not be given to employees in the public sector. I had hoped to discuss this matter on my amendment but as that has been ruled out of order I reserve the right to oppose some of the provisions in subsection (1). I do not see why a Bill of this nature should be sectional in any way.

The vocational teachers have their own statutory dismissal procedures under the Acts dealing with vocational education. The general relationship of the civil service is determined by law under the Civil Service Regulation Act, 1956. They are covered by the many existing procedures. As I explained at the outset, it was my intention to ensure that this legislation primarily would protect those who are not covered at present. That is why such categories have been excluded from the provisions of the legislation.

I should like to hear the Minister justify in principle the reasons for these exclusions, rather than simply say they are already covered in different Acts. I hope the Minister will be able to give us his reasons and spell them out for us, as I think he is obliged to do. If he is relying on the exclusions in those Acts, he should tell us precisely what safeguards there are which are as adequate as the safeguards he is introducing in this legislation.

Deputy Fitzgerald gave one of many examples, that is, the anomaly which will exist between the position of a primary teacher and a secondary teacher and that of a vocational teacher. We are hoping to have some integration in the system of education. We understand that is the attitude of the Minister's party. We want to ensure, to the maximum possible extent, free movement between the various sectors of education in so far as teachers are concerned. If the protections in this Bill will be limited to primary teachers and secondary teachers, and will exclude vocational teachers, in my view that is wrong in principle.

The Minister is talking in terms of vocational Acts and procedures rather than principles. Procedures in themselves are not guarantees. Principles are. If the Minister can tell us that the vocational school teacher is as protected as his counterpart in primary and secondary schools will now be under this Bill, perhaps we can listen to him. The Minister is producing this legislation on the basis that it is a necessary and desirable social amendment. Then the onus falls on him to justify the exclusion of people in similar positions.

The same question arises in relation to employees and officers of local authorities and of the State. Through the Minister the State is telling the people at large: "These are the standards by which we believe you should be bound in your conduct in your employment. These are the conditions we feel it is now necessary to introduce into the relationship between employers and employees. These are the safeguards which we as the Government think must be introduced into your contractural relationships. While we feel these are appropriate safeguards to provide in the private sector, we have no such concern for the public sector." Surely there is an anomaly there.

I am not saying that is precisely what the Minister feels. I am saying if he stands over what he has introduced here he is giving effect to that. If he wants to tell us there are protections in the local authority Acts or the Acts dealing with the employment of civil servants, he should spell out what they are. We have a list of Acts here which may have some relevance. Until we examine them in more detail I doubt that they relate to any thing more than procedures. I am pretty confident they do not cover principles to the same extent as the principles we are now discussing.

Is the Minister now telling employees and officers of local authorities —and that covers a fairly wide range —that they are to be in a different position from people in an executive capacity with firms, or people earning salaries or wages far in excess of their earnings? Is he telling the staffs of the various offices of the State that they are to be excluded from this? If so, why? The Minister should tell us precisely the grounds on which he justifies this, and spell out exactly what protections apply to those people.

Apprentices employed by An Comhairle Oiliúna are to be excluded. It is a long-established principle of the law that apprentices are in a special position for a reason different from the reason envisaged here. Under the existing law, misconduct in the discharge of one's office is a justification for dismissal and thereby renders it a justifiable dismissal. Misconduct on the part of apprentices has been excluded, for very obvious reasons, as a justification for termination of the apprenticeship under the common law. An apprentice is subject to other disciplines which do not apply to the servant or officer as the case might be. Termination of his apprenticeship could be a very serious step for him. Under the existing law there are other sanctions which can be applied to apprentices which, perhaps, could not be applied to other people.

One might say the Minister proposes to exclude the people who are most vulnerable. I am not saying this would be the intention of An Comhairle Oiliúna, but we have to guard against any such eventuality. Some of the categories the Minister proposes to exclude cannot be justifiably excluded. I doubt that we would state as a principle that officers and employees of the State or semi-State bodies are henceforth to be in a less protected position than officers and employees in the private sector. That seems to me to be contrary to what most of us would stand for, and contrary to what the Minister's party present as being their stance. It will introduce a new element into employment which could not be justified in principle. There are thousands of people in that position. As the Minister acknowledged in reply to Deputy Fitzgerald's question about teachers, it gives rise to terrible anomalies.

The Acts in this list go back as far as 1930, 1931, 1941, 1956 and 1959. I presume that in 1976 there is social enlightenment on or awareness of the need to protect employment which, perhaps, did not exist in 1930. To rely on the provisions of a 1930 Act as corresponding to the safeguards in a 1976 Bill does not do justice to what the Minister intends to do. If he relies on those Acts he should tell us what safeguards they provide and we can judge one against another and, on principle rather than on procedures, decide whether these exclusions are justified. On the face of it, I cannot see how they are.

The general impulse for this legislation related to the number of disputes which had been caused in recent years as a result of disagreement on the disciplinary methods used in particular cases. Disputes had arisen because an employee felt aggrieved, and his sense of grievance, in the existing lacuna in our legislation, meant he sought the assistance and support of fellow workers in his disagreement with the employer. We had many strikes. We reckon that one-fifth of man-days lost in the year before last arose from disputes relating to dismissals. Therefore, I just want to let Deputy O'Kennedy know that the impulse for this legislation arises from the observable phenonema of disputes in an area in which the law was silent. It was to end that state of affairs that this legislation was introduced.

The problem of dismissals leading to disputes. I refer to have not been an occurrence in the public sector and that is the major reason why we have not entered this area. The public sector is amply covered by existing procedures. In the case of established civil servants, it requires a Cabinet decision to dismiss one. One cannot imagine greater security than that. The basic conditions of civil servants are provided for in the Civil Service (Regulation) Act, 1956, and any dismissal of a civil servant must take congnisance of the provisions of that Act, and, as I said, it takes a Government decision itself to dismiss an established civil servant.

One must take note of the fact that, by and large, the Public Service is an area of good relations between employer and employee and that we have not had any instance of the disputes which I have mentioned and which have largely brought about the introduction of this legislation, namely, the actual situation of a number of disputes occurring because of conflict arising from the interpretation of rights and wrongs under dismissal procedures in private industry. In the case of the Defence Forces, Garda Síochána and Prison Officers, Deputies will appreciate that these bodies have their own disciplinary codes designed in relation to their important security role, and it would be inappropriate to attempt to apply the provisions of general law in these areas.

The Deputy referred to the training authority itself in the matter of apprentices. I would inform him that the training authority is not an employer in the normal sense. Normally, it is the private employer who takes on the apprentice. This provision here is designed for a situation where the training authority might be forced to take on apprentices directly into its employment, but it is not an employment relationship; it is AnCO attempting to increase the volume of apprentice training.

The Minister has not attempted to justify in principle the exclusions. He has said that this is justification in principle, that the impetus for this Act arose because of concern about the security of employees in the private sector.

The incidence of industrial disputes in relation to dismissal procedure in industry which does not occur in the public sector.

The fact that it does not occur at the moment—if it does not occur—is no reason why the principles we are applying should not be introduced into the public sector. I do not suppose there is an implication that the public sector is more concerned for its employees than the private sector.

Better standards in general apply.

I am surprised to hear the Minister say that. I do not know whether there are better standards in the Public Service, but if there are, I wonder to what extent it is due to the fact that the employer, if such you can describe him, the Minister, has not the same personal, financial involvement in what is being applied as the person has in the private sector. Maybe when people do not care as much or are not affected as much they can claim better standards in general. It may be that when we are doling out public money, as distinct from private money, we are not as conscientious or concerned.

Whatever the reason is—and that is not the point I want to make—I do not think the Minister should rely on the fact that there is a higher standard applied in the Public Service than in industrial employment, or on the fact that because something has not happened up to the moment, it may never happen in future. Certainly I do not think we should exclude local authority servants or officers from the protection that is being given here to people who may be in much more secure positions in outside employment. When the Minister introduces what he calls a necessary and desirable reform in the relationship that exists between the employer and employee in the ordinary course, I do not think it is right for him to say:

"While I am doing this, I am excluding my colleagues and myself for the time being, whoever they may be, from this obligation that I am imposing on others." Surely there is a certain element of blindness or inconsistency in that approach.

If we are going to preach here in this House about standards to be applied to others, surely we should at least be ready to acknowledge that the same standards should be applied to us. In my view this will cause the type of reaction against this legislation which I would hope would not arise in the private sector, that the employers will say in regard to the Government—I am not referring only to this Government but to any Government: "There they are again preaching to us about our obligations, and when they are introducing legislation to protect employees they exclude themselves from the same obligations."

I do not know how that can be made to conform to any social ethic or social or political philosophy. We hear a good deal about political philosophy from time to time, when people parade the concern they have, not least the Minister's party, under what they regard as their fundamental political philosophy that in their view makes them more concerned for universal social justice than others. If such is the case, I ask the Minister under what principle of philosophy can he justify what he is asking us to do here, to exclude the people who happen to be employed in the State sector, the local authority sector or committees, as the case might be, in this instance, the vocational committees of local authorities.

It is not right for us to assume that it will not happen in future. If the economic stringencies of the day were to continue, who is to say that people might not be vulnerable to the exigencies of the Executive to have them removed from positions that the Executive are not able to support? I have seen cases where temporary employment in the Board of Works has been terminated months in advance of the normal termination date because of financial stringencies. If this trend were to continue, who is to say that public sector employees would not be the victims of the economic axe of their superiors for the time being, be they county managers or Ministers? There is no justification for the Minister's decision. We have asked for examples and have not been given any. The Acts to which the Minister refers do not provide the safeguards in principle that this Bill intends to apply. There are procedures but no principles. This Bill is giving new statutory rights to the people concerned, rights which can be maintained and vindicated in our courts. The ones the Minister refers to are not covered by judicial protection but are ordinary administrative procedures, whether one talks in terms of local authority employees, gardaí, apprentices and so on. Public sector employees are in secure positions in comparison with private sector employees. Because it is true at present does not make it true for all time and does not justify the principle which the Minister asked us to introduce— a principle which he lauded as recently as last Sunday, when he was addressing his own conference, as being a vindication of the social concern of his party. If he was genuine about the need to introduce it into the private sector, why is he excluding it at present? How can he be consistent in that connection? The question cannot be answered by saying that there are procedures.

I accept the Minister's point in relation to AnCO. I know that AnCO is not an employer within the meaning of the Act. I cannot accept an exclusion which brings about the anomaly that Deputy Fitzgerald spoke about. Why should there be a difference between a teacher in a vocational school and a teacher in a secondary school? Why should there be a difference between an established clerk in a county council and a sales manager in a large firm? Why should there be a difference between an administrative officer of a health board and a senior executive in private industry? If there should not be a difference, the Minister should recognise that some of his exclusions are not appropriate to the intention of the measure.

We are asking the private sector to accept this Bill. How are we to get the private sector to accept this Bill when it applies only to them? Local authority staff are controlled exclusively by the manager. I support this Bill. I have been informed that the Bill is too severe on the private sector and that they would be prepared to accept what the public sector would accept but the public sector are not included. The Minister should tell us the reason for the exclusion of the public sector. This Bill was introduced to protect employees from unfair dismissals. It is not right to introduce a Bill which caters for only one section of the community.

In replying to a point made by Deputy O'Kennedy, the Minister said that the Bill was introduced to eliminate the contributory factor of unfair dismissals in the industrial relations problem which had created the loss of one-fifth of the man days lost in 1974. That is only partly correct. In the opening paragraph of his Second Stage speech the Minister said:

This Bill sets out to correct a serious omission in our statute law in respect of the individual's right to fair treatment by his employer in circumstances where the employer either contemplates or has decided that he should be dismissed.

In other words, we are talking about the rights of the individual in addition to the effort to curb the difficulties in industrial relations. Surely there are rights for individuals in both the public and private sectors. In view of the fact that the Minister introduced an amendment regarding the servant of a local authority, is a caretaker, for example, with the health board included or excluded in this Bill? The reason for this question is fairly obvious. An amendment was put down in relation to local authorities to ensure that servants of local authorities who were omitted are now included. It would appear to me that a caretaker of a health board in addition to an officer of a health board is excluded. I see absolutely no reason why paragraphs (h), the civil service, (j), the officers of a local authority and (k), the officers of a health board, vocational educational committee or a committee of agriculture, should not be included. They are the three paragraphs that I am opposing in subsection (1) of section 2.

The Bill has not the intention of eliminating disputes and grievances; its main objective is to assist in eliminating conflicts. In the public service disputes have not been common. Existing procedures cover the persons not included in this legislation. Those who are excluded under this section do not lose any of the rights that this legislation was intended to confer on those who have not got them up to the introduction of this legislation.

I have made it clear that the amendment brought in in relation to the local authorities was to cover people who were not already covered. The officers are covered and they do not require the protection of this legislation, that is why they are not included. Officer categories in paragraphs (j) and (k) are already protected because a local authority may not remove an officer from office without obtaining the consent of the Minister for Local Government under the Local Government Act, 1941. Before applying under that Act the authority must inform the officer concerned of their intention to apply, and must give reasons for applying. The Minister must consider the representations of the officer and where an alternative post is proposed particulars of such post must be provided. All these provisions have existed for many years and demonstrate the kind of procedures which have existed in the public sector over the years and from which people in outside industry did not benefit.

Vocational teachers have protection under the Act that applies to them and secondary teachers are covered by the provisions of this legislation because they were not covered previously. The main point that must be made is that in the public service we have procedures which work satisfactorily and a situation where security is the rule and has always been the rule, and the need for this legislation is arguable. If one were to delay badly needed legislation for the protection of categories of the population not previously protected until one had uniformity of procedures in relation to the public service it would mean that the incidence of disputes over unfair dismissals, which has been a so unfortunate and increasing tendency in industrial relations recently, would increase and an existing injustice would be allowed to continue. For too long we have allowed the law to be silent in relation to the plight of the person who had no protection. If this legislation passes both Houses the law will no longer be silent and that person will have some of the protection that other categories have had over the years. I do not rule out the possibility that when this legislation goes through, some of the bodies concerned in these procedures may consider that there should be changes in the legislation, but that is another day's work. Our priority is to get legislation through to fill that gap in our present statute law.

In regard to the servants of health boards is the caretaker covered?

Yes, he is covered.

The caretaker is included, but if he is included why is it necessary to bring in an amendment for the local authorities?

We think that he was covered in the existing provision, but to make it absolutely clear that he was covered, we added that as well.

If the Minister wanted to make it abundantly clear surely it is necessary to introduce a similar amendment for the servant of the health board?

I am advised that it is not. It is a drafting matter.

Surely it is more than a drafting matter. If the Minister saw the necessity for the amendment to cover a servant of the local authority surely it is necessary for an amendment to cover the health board?

The Deputy will accept that if I was convinced of the necessity in one case and made the amendment, I would also make an amendment in another case if I thought it necessary. The fact that I have not amended it shows that it was not necessary.

There must be some consistency. If the Minister saw the necessity to introduce an amendment to satisfy everybody, including himself, that a servant of the local authority was included, then the position of the servant of the health board must obviously, because of the introduction of that amendment, remain in mid-air. The Minister has said nothing to convince me or this side of the House as to why this Act should not extend to local authority officers, health board officers, vocational teachers, county committee of agriculture officers and civil servants. For that reason we must oppose the paragraphs referred to. The Minister lauded and praised the 1941 Act. That was an amazing change for the Minister. It was an amazing change to hear the Minister praise so highly the 1941 Act which was introduced by Fianna Fáil. That Act was ideal for its time but did not contain the redresses that are necessary now and which are being introduced in this Bill 35 years later. I do not accept that the parts of that Act referring to civil servants, to officers of local authorities, to health boards, to employees of vocational education committees and to committees of agriculture should not stand part of subsection (1) of section 2 of this Bill.

While I would go some way with what the Minister said, I would ask him what is wrong in including the categories mentioned by Deputy Fitzgerald?

It is not necessary to include them.

It might become necessary in future years for these groups to have the sort of protection we are discussing. What is sauce for the goose is sauce for the gander.

I have been looking for copies of the various Acts referred to by the Minister but they are out of stock. Consequently, we are stymied to some extent in considering this legislation. I was not here while the Minister was speaking but I gather that in relation to the Local Government Act, 1941 there is protection by reason of the fact that in regard to dismissals there must be consultation with the Minister for Local Government. This merely underlines what I have said already, that is, that the protections in Acts such as these are merely by way of setting out procedures. Procedures in themselves are all right but as I am sure Deputy Esmonde will agree, any procedure can only go so far as the principle binding it will allow it to go. One may talk about the provision for consultation but of itself that does not import the protection that the Minister sees fit to introduce here in relation generally to unfair dismissals.

If, for instance, the Minister were to say that the protection of section 6 in regard to unfair dismissals as well as the protection contained in section 7 are also in the various Statutes to which he has referred, we would give way but he cannot say that. Therefore, one cannot understand his asking us to agree to exclude from the legislation the categories we are talking about. Whatever may be the position now in regard to disputes and the likelihood of disputes in the private sector as distinct from the public sector, we cannot say that the position will remain as it is. We must not provide for making judgement in relation to a private employer in industry if we are not prepared to apply the same yardstick to ourselves. I am speaking generally here because, as the Minister will realise, what is involved goes much further than the Executive. It extends to officers of local authorities and to health boards. With the extending functions of local authorities—for instance, in relation to the health boards' activities, to planning and to water pollution legislation—the likelihood is that as the State assumes further responsibility, and that would seem to be the policy of the Minister's party, more people will be involved by way of employment within the public sector. We are being asked in this legislation to exclude these workers from conditions that are considered proper and reasonable for the protection of workers in the private sector. I see no logic in that. Neither is there any justification for it. I doubt if the Minister would have stood before his party's conference and tried to explain the proposal to exclude the public sector from this Bill. At a time, too, when Ministers have been asking for a response to the national need it is difficult to understand why they should be excluding themselves from the obligations they are prepared to impose on others.

I would point out that the prime need for this legislation relates to the protection of those who up to now have been without protection. This area had been neglected for too long. The Bill is intended to fill the gap in which the individual found himself without the protection of the law and to cope with a situation whereby in many instances in recent years the economy was the victim of disputes and when one-fifth of man days lost related to this very subject in industry. In those circumstances it was fair that legislation of this kind would have to be introduced.

I have indicated the procedures which exist in the public sector in relation to the guarantee of security of employment. These procedures have existed for quite some time and, regardless of what may have been the main contributory factor, it remains that there have been very few disputes in the public sector. It may be that in the years ahead we shall see greater uniformity in the whole area of the public sector, that changes may be made in this legislation at a later stage providing for uniformity in regard to a variety of procedures in relation to employment in the public sector. However, that is not the pressing need for now. Our aim is to ensure that the legislation is effective where it is required and that is the main interest in bringing the Bill before the House.

I should like to refer to a matter mentioned by Deputy O'Kennedy. I have a good recollection of dealing many years ago with the same sort of situation in respect of a local authority official in Deputy O'Kennedy's constituency. The Deputy was concerned about whether such local authority officials are protected. The county manager soon learned that the official in this case was well protected and, having purported to dismiss the employee, he had to bring him back again because he was well protected in existing legislation. I just give that as a personal experience having known the case. It did not require any legal ingenuity; there is very strong statutory machinery there to protect local authority officials.

The county manager and the Minister are not covered in this Bill. That is the objection I have —that we are passing legislation that will apply to a certain section of the community but we are not prepared to have it apply to ourselves. If there is legislation there already, what is wrong with providing that this legislation operate across the board?

The State have a certain obligation at least to give good example. If they want to establish a precedent they should do so. As far as workers' rights and the whole question of good relations are concerned, the State have introduced proposals for worker participation on boards in the hope, I suppose, that eventually this will become a norm throughout the private sector generally. I should like to see that hope fulfilled. They give the example in that case and introduce that kind of development and, indeed, protection of good relations.

The Deputy would not look for universality?

No. The State have done it there but they go the other way around here. The only reason they could do it in the first case, apparently, is that it would not cost anything.

Where is the argument?

If you want to be consistent and if you want to give an example, if the principles you are applying should be adopted by the State or the semi-State sector in the first instance, as in that case, where it does not cost anything but shows a certain awareness on the part of the Government, surely where it might cost something, the State should be consistent? If they gave good example in that case they are certainly giving very bad example in this case.

This Government produce law where it is necessary as they did in the case of the State enterprise area and as we are doing here.

The question is: "That section 2, as amended, stand part of the Bill."

We are only dealing with subsection (1) of section 2.

There is nothing in Standing Orders or in the practice of the House whereby——

We have a long way to go before section 2 stands part of the Bill. First, we are opposing by vote paragraphs (h)——

No, section 2 will have to stand complete.

I was informed earlier when I made a protest on the refusal of an amendment that I could oppose those particular paragraphs.

The Deputy can register his disapproval by voting against the section.

I pointed out that there were certain paragraphs within the section that we objected to and opposed. My amendment was refused on grounds that I do not believe were correct.

The Deputy will appreciate that there is no provision in Standing Orders, or in practice, that anything other than the section is put. The Chair cannot put subsections.

If that be so, we reserve the right to submit amendments on Report Stage.

The question is: "That section 2, as amended, stand part of the Bill."

First, I want to know from the Minister if he will explain subsection (2) (a) which deals with a dismissal where an employee is under contract of employment for a fixed term before 16th September, 1976. In regard to subsection (3), I am not happy with the possible exclusion of some people who may well be excluded under this paragraph. Could the Minister point out where these people are included? I refer especially to the last paragraph in (a) where it says: "in case the employer was a body corporate or an unincorporated body of persons, had its principal place of business in the State during the term of the contract." We are talking about an employment contract here. What is the position about a body whose principal place of business is outside the State, especially multinationals? Is there a way in which they can get around this legislation in specific contracts for specific periods?

Going back to paragraph (a) (ii) may I question the use of the word "domiciled"? Is it the appropriate word? There are a number of legal men present who could deal with that word in all its implications far better than I could. In a situation when in the European context we can have people domiciled in the State and working elsewhere I should like the Minister to elaborate on the use of the word "domiciled" and also to deal with the last paragraph referring to a body with its principal place of business in the State. What about the multi-national company whose headquarters may well be outside the State?

I do not know what the Deputy's desire for a vote is based on.

We are not asking for a vote at this stage.

You said some minutes ago that you wanted a vote and you do not appear to be eager for a vote now.

The Minister has not been listening properly.

I am sorry if I misunderstood. The Deputy is now seeking extra information on the section. I shall do my best to give it to him.

We never sleep in Limerick.

The Deputy was wrong in his predictions last week about Limerick. He should not go into the business of predicting. He is not a very good prophet.

(Interruptions.)

As regard section 3 (a) (ii) the person who is working outside the State is not covered but if he is himself working inside the State for a body outside the State he is covered. "Domiciled" is the usual term used. We could have a legal debate on the word. I am sure Deputy O'Kennedy will be able to explain the exact legal background of "domiciled" to his colleague.

Tell us what is it. It is the Minister's obligation rather than mine.

Deputy Fitzgerald may take it from me that "domiciled" has illustrious precedent for use in legislation of a similar character. He need not worry about it. If there is any further information he requires on that section I shall do my best to provide it.

In relation to the section, the exclusion relates to people resident outside and not domiciled in the State. What is the position of a person whose contract was obviously made in the State, as in most cases it would be if the person is engaged in employment with an employer here whether multi-national, national or small-time, to do work for that company outside the State? This section excludes such a person who might be dismissed on unfair grounds from bringing proceedings here to have the rights of this Bill applied to him. Perhaps I am wrong. If the Minister could tell me no, such a person is protected, I would be happy. I raise this query because subsection (3) as it stands appears to exclude such a person who, for instance, could be a sales representative abroad and for that reason almost by definition would be both resident and domiciled outside the State but, in fact, he was discharging his functions in relation to a contract which he made with an employer within the State. Is the Minister saying that such a person should be excluded from the protection of the Act?

Of course it is the residential status of a person which determines whether he will be covered by this legislation. If he is resident in the State, he will be covered. He must be working, of course.

Yes, but the Minister has not justified the Bill. Deputy Esmonde could tell us, in any event, that you can sue on a contract in the place where the contract is made. The Minister's studies of the law will have brought that home to him.

If a person is engaged by any of the major companies here to do work which of necessity involves him spending almost all of his time outside the State, is the Minister saying that he should be prevented from the protection of this section? He is saying that of course it is residence we are talking about in the section. I can recognise that for myself, but is he saying that a person engaged under contract of service or employment made here if he has to work abroad to do the job for the employer should be excluded?

Employment abroad is not covered. Employees in the State are covered wherever the headquarters of the company they work for may be based. The Deputy knows that we could have a very interesting afternoon or night on a discussion on the exact meaning of domicile and, perhaps, on Report Stage we could have a full discussion on it. The main intention of the legislation is to ensure that the Bill will protect employees in this country, when they are working and resident in this country. To a limited extent we cover those who work outside the State, provided they live here or can claim domicile in the State. Where the person works is the criterion, not where the contract is made.

I still say the Minister should recognise that there are and are likely to be cases where a person will be resident or domiciled in the State but obliged to work outside the State.

I think we can have the vote now.

Stop the childishness. The weekend is over and this is serious business.

This is going into law. If the Minister thinks I am playing games he is wrong. Somebody is going to look at this when it is an Act and see whether this protection will apply to the type of people we are referring. We are engaged in winning and promoting markets abroad and many of our companies will be so engaged. People will as a condition of their employment be sometimes possibly obliged to live abroad so that they can do their job more effectively. I point out to the Minister that those people who will have such a contract of employment entered into in this country will have no protection under this Bill. He has not justified this. If he does not wish to do so, that is his own business. It is a very important point and one that in future may be highlighted.

It is a matter of an address. If you have a foreign corporation its main place of business is not here.

I was not talking only in terms of foreign businesses. I could be talking in terms of any of the major companies here and the fact that a contract is made with one of those companies to do certain work abroad. It could be any of the major companies; Guinness for example. We are excluding a person who is employed in the sales sector for instance who might be obliged to live abroad to pursue his job effectively. If the Minister and the Deputy think that should be done, that is their business. I see no reason in principle why such a person should be excluded.

If you use the term "where the contract is made" that could be wide open to abuse. The last necessary party signing the contract determines where the contract is made. That is a principle the Deputy got in his second year doing law.

Deputy Esmonde would like to confuse the issue.

I would not. I could see that being abused too easily.

We will not get involved in a jocose game.

I am very serious.

The Minister will not include the public sector and we have had no argument to convince us that they should not be included. The legislation that Deputy Esmonde referred to does not contain the necessary compensatory measure now contained in the new legislation. Among other things, it is 35 years old. We believe there is no reason why civil servants, including members of the staff of the Houses of the Oireachtas, or officers of a local authority for the purpose of the Local Government Act, 1941, or officers of a health board, a vocational educational committee, vocational teachers and officers of a committee of agriculture should not be included. In view of the fact that our amendment was ruled out of order to have these included, in view of the fact that we cannot oppose certain paragraphs of the section, I now say that section 2 should not stand part of the Bill on these grounds.

Question proposed: "That section 2, as amended, stand part of the Bill."
Question put. The Committee divided: Tá, 63; Níl, 56.

Barry, Peter.Barry, Richard.Belton, Luke.Belton, Paddy.Bermingham, Joseph.Bruton, John.Burke, Dick.Burke, Liam.Byrne, Hugh.Cluskey, Frank.Collins, Edward.Conlan, John F.Coogan, Fintan.Cooney, Patrick M.Corish, Brendan.Costello, Declan.Coughlan, Stephen.Crotty, Kieran.Cruise-O'Brien, Conor.Desmond, Barry.Desmond, Eileen.Dockrell, Henry P.Dockrell, Maurice.Donegan, Patrick S.Donnellan, John.Dunne, Thomas.Enright, Thomas.Esmonde, John G.Finn, Martin.FitzGerald, Garret.Fitzpatrick, Tom (Cavan).Flanagan, Oliver J.

Gilhawley, Eugene.Governey, Desmond.Griffin, Brendan.Halligan, Brendan.Harte, Patrick D.Hegarty, Patrick.Hogan O'Higgins, Brigid.Jones, Denis F.Kavanagh, Liam.Keating, Justin.Kelly, John.Kenny, Enda.Kyne, Thomas A.L'Estrange, Gerald.Lynch, Gerard.McDonald, Charles B.McLaughlin, Joseph.McMahon, Larry.Malone, Patrick.Murphy Michael P.O'Brien, Fergus.O'Connell, John.O'Leary, Michael.O'Sullivan, John L.Pattison, Séamus.Ryan, John J.Taylor, Frank.Timmins, Godfrey.Toal, Brendan.Tully, James.White, James.

Níl

Allen, Lorcan.Andrews, David.Barrett, Sylvester.Brady, Philip A.Brennan, Joseph.Breslin, Cormac.Briscoe, Ben.Brosnan, Seán.Browne, Seán.Brugha, Ruairí.Callanan, John.Calleary, Seán.Colley, George.Collins, Gerard.Crinion, Brendan.Crowley, Flor.Daly, Brendan.de Valera, Vivion.Dowling, Joe.Fahey, Jackie.Farrell, Joseph.Faulkner, Pádraig.Fitzgerald, Gene.Fitzpatrick, Tom (Dublin Central).Flanagan, Seán.Gallagher, Denis.Geoghegan-Quinn, Máire.Gibbons, James.

Gogan, Richard P.Haughey, Charles.Healy, Augustine A.Herbert, Michael.Hussey, Thomas.Kenneally, William.Kitt, Michael P.Lalor, Patrick J.Leonard, James.Lynch, Celia.Lynch, Jack.McEllistrim, Thomas.MacSharry, Ray.Meaney, Tom.Moore, Seán.Murphy, Ciarán.Nolan, Thomas.Noonan, Michael.O'Kennedy, Michael.O'Leary, John.O'Malley, Desmond.Power, Patrick.Smith, Patrick.Timmons, Eugene.Tunney, Jim.Walsh, Seán.Wilson, John P.Wyse, Pearse.

Tellers: Tá, Deputies Kelly and B. Desmond; Níl, Deputies Lalor and Browne.
Question declared carried.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."

We are opposing the section for a number of reasons. The first is that a probationer comes under its terms if the contract of employment is in writing and the duration of the probation or training is two years or less and is specified in the contract. It seems strange that that should apply under this section and not under section 2, where the period is one year. I submit the difference is an unjustified restriction in relation to probationers. If there is to be a restriction, the same term of one year should apply as in the case of section 2.

It appears to me that a probationer or trainee can be exempted from the application of this Act, under the provisions of this section, for two years rather than one. It seems that during a training period of three or four years this Act will not apply to dismissal after a period of two years, whereas in the previous section the period mentioned is one year. Is this not unjust discrimination? In the latter case, the period of one year is taken and if his or her employment is regarded as satisfactory then the section applies.

I appreciate that there will have to be a distinction between the qualifying period and the subsequent period but should the period not be confined to one year's exemption—that those concerned, if they had one year of satisfactory progress in their training or probation, would come within the control of the Act in the same way as those mentioned in section 2? For instance, nurses go through a training period of three or four years before they are fully trained. I appreciate that at the end of that period we cannot insist that the hospitals in which they have been trained must take them on, because there might not be sufficient vacancies and if they continued to employ their trainees year after year, eventually they would have more nurses than patients.

Here, however, there is a distinction and our aim is that all should be treated equally. Already, by division, we have decided to exclude the public sector. Having done that—we still do not agree with it—we must insist that once a person has completed satisfactorily a probationery or training period of one year he is entitled to the protection of the Bill. If a trainee's competence or capability is not found wanting in the first year, it would be a reflection on those responsible for the training to come in in the second year.

Obviously there is a grammatical error in subsection (1) which the Minister will have to amend. Paragraph (a) states:

if his contract of employment is in writing, the duration of the probation or training is 2 years or less and is specified in the contract, or

I presume the word "and" should be inserted after "writing" and before "the duration".

This Bill is primarily aimed at protecting people who are qualified and in employment, and the purpose of this section is to deal with somebody who is learning the job. I do not think it would be any simplification of the position if we accepted Deputy Fitzgerald's submission. We know of numerous cases where students or trainees do one year all right but do not in the second year. The purpose of training is to bring people up to a standard where they can be employed, having obtained proper qualifications, and one must accept that the person responsible for training should not be placed in the same position as an employer. Having said that, I want to make a distinction. I have been asked to mention the position of probationary secondary teachers. These do their theoretical work and then go into the field to gain practical experience. I can conceive a situation arising in which institutions run by private people might abuse the situation by taking on probationers, getting rid of them at the end of the probationary period, and taking on more probationers—using probationary secondary teachers to do the work of fully qualified teachers. It must be made clear that this will not be allowed. This situation will not arise in the case of primary school teachers. Perhaps the Minister will have a look at this between now and Report Stage.

The purpose of this section is to enable arrangements to be made for probationary training periods at the commencement of employment. Certain restrictions are imposed and I am seeking in this section to get a reasonably balanced provision which will take into account the interests of both sides. Many arguments can be advanced and views offered to suggest that some of the provisions of this Bill should apply in the probationary period. We must accept the principle of probation. In subsection (2) there is reference to different categories, such as para-medicals, nurses and so on. The Act will not apply in relation to the dismissal of the categories set out during the training period. The courses are very rigorous and the standards required are very high and we must be concerned to ensure that the highest standards are maintained. One must have regard here to the impact on the kind of training involved and I am reasonably satisfied that the absence of an exclusion provision could have serious consequences for institutions, such as teaching hospitals and so on. However, I will have another look at this before the Report Stage.

That is a welcome indication from the Minister and it will temper our attitude. When talking about probation or training the question of conduct or misconduct naturally arises. Paragraph (c) of section 6 refers to the conduct of the employee. Such would justify the non-application of the protection of the Act. If that is the case it would not tie the hands of the authority if it were found that the misconduct of the trainee was such as to oblige those in authority to terminate the contract of employment.

I would go a little further than misconduct when the person is training.

I am referring to what is in the Bill. Normally the balance is the other way. Most of the people here will be under 21 and, from that point of view, there is an argument at least that special treatment for them should be strengthened, if anything, certainly maintained, and nothing should be done to exclude them from a protection now being applied under a new statutory obligation. Such exclusion would not be consistent with the special protection given to infants under the law. The Minister should take this into consideration.

The persons designated in subsection (2) are nurses, pharmacists, health inspectors, medical laboratory technicians and so on. In most of these cases we are talking in terms of three- or four-year courses. Trainees have a reasonable expectation that at the end of such courses they will have the right to proceed to permanent employment. Take the case of a nurse who in her third year is dismissed. We are not talking about anything other than unfair dismissal. We are not restricting the right of a training authority in a hospital or elsewhere to tell a person he or she is not suitable for training for certain reasons which do not amount to unfair dismissal. We are saying that young people because of their youth and the time they have spent in training, perhaps up to three years, should be protected against unfair dismissal which would undermine their whole future——

Most of these people are going through some form of educational establishment or college.

No. Probation is another matter. Not all of the people concerned are going to college; some of them are being paid while they are working. Let us take the case of a girl who for personality reasons might fall foul of the matron. That young person might have spent three years training, she might be ready for her final examination before qualifying but then she is suddenly unfairly dismissed. I am sure all of us would be concerned to see that such a person should not be thrown out without any redress. We want to ensure that the young person's confidence is not undermined in this way and that if her capacity, character and conduct are suitable that she be allowed to continue training without wasting all those years.

The Minister said he will consider the matter between now and Report Stage but I do not know precisely what that means. On Report Stage we will not be able to tease out these matters to the same extent as on Committee Stage. We can get a better idea of what is in the Minister's mind at this point in the debate. I should like him to give us an indication why he sees the need to exclude people of the type we have referred to from the protection given in the Bill, having regard to the fact that we are talking about unfair dismissals and of the consequences of such dismissals on those involved. I should like to know the Minister's justification for this at this stage.

The Minister spoke of the importance of probation and training. We recognise that and we also recognise the discretion and the authority of the training body. However, we also recognise that that discretion or authority must not be applied unfairly and, therefore, we would like to know why they should be excluded. At any time it is a serious matter to lose a job but to be dismissed at that stage in a person's life can be much more serious and can have a very bad effect on the individual concerned. For that reason, we should not lightly exclude those people.

There is a very real problem here. If a training authority have to defend a dismissal by reference to any of the criteria that exist in relation to section 6 (4)— grounds of misconduct and so on— we will then be setting up the employment tribunal as a judge of the competence of the training authority in the nursing area——

No. It is competence of the character of the person being dismissed——

A health authority would maintain that it is difficult to separate the training aspect. They would claim that it is an integral part. My difficulty here is that I have to listen to the relevant authorities who have experience in this area. It is only fair that I should advise the House of the position.

I have reservations about this matter. Initially I was prepared to consider the Minister's suggestion that he would look at it before Report Stage but now I want certain assurances from him. As Deputy O'Kennedy pointed out, we are confined in our discussions on Report Stage. In addition, we will have to wait for the Minister to submit amendments. I think the section badly needs amendment.

I do not go along with Deputy Esmonde or with the Minister regarding their approach to probation and training. The point made by Deputy O'Kennedy was the most significant one. We are talking here about unfair dismissals, not about fair dismissals. There is a vast difference. The Minister mentioned health boards but for the majority of the people concerned their work starts as soon as they commence training. Probably the first year in training is one of the most difficult years in a nurse's life. If the training authority have not decided in 12 months whether a person is a suitable candidate, then there is a weakness in the training authority. I accept that there must be some safeguards. I realise that where a hospital is training a group of the people we mentioned there must be some provision, possibly like the apprenticeship provision in section 4, to safeguard the hospital.

The problem here is the competent authorities. For example, the religious superiors managing the secondary schools have asked me for a meeting. They are very strong in their view that the two-year probationary period is a necessary and essential element in this legislation. They would disagree with Deputies here who say that the provisions of the legislation should apply to the probationary period. I must listen to the views of the managers who are in charge of secondary education and to the health authorities. I wish Deputies would appreciate that I have to listen to these people when framing legislation of this kind. The religious superiors claim they need this two-year period.

The Minister should know that we appreciate his problem and wish to be of help. We would like an assurance from him that he will consider favourably what we have suggested, that he will make one year the basis, and if we can reserve our right to submit amendments on Report Stage——

I will review the matter but I cannot say whether it will be favourably or otherwise. I have mentioned some of the difficulties that exist.

If I thought the Minister was not going to do what I suggested we would oppose the section. We want to help the Minister.

I do not want to fool the Deputy. There are real difficulties and I have indicated them.

Progress reported; Committee to sit again.
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