Vol. 7 No. 8
I move:—
In Section 2, sub-section (1), to delete in line 32 the word "directly."
In Section 4 the word "directly" was deleted on the Committee Stage. This section is to some extent parallel to that. I think the Minister intimated that he would be prepared to accept some such amendment as this.
I just want to point out that this amendment is in a sense irregular, because it is a reversing of what was done in Committee. The matter was considered in Committee, but in view of the fact that when the Committee came to Section 4 they arrived at a different conclusion, I am not raising any point about it, but I only want to safeguard the Seanad.
The word "directly" would seem to be equally necessary or unnecessary in both sections. It does not matter which it is, but both should be alike.
That is why I am allowing the matter to be reviewed. Whatever decision the Seanad comes to, it should be the same in both sections.
I oppose it for the same reason that I opposed a similar amendment on the last occasion. The original Act of 1924 confined the provision for loss of employment very properly to loss of employment sustained as a result of the Act, that is through reason of the amalgamation. The reason for the definition of the qualifications appears to me very definite, but the object of this amendment appears to be to make it less clear and definite. The original intentions of the original Act should be preserved and for that reason I oppose the amendment.
I urge the Seanad not to tie the hands of the arbitrator in this manner. Surely what the arbitrator has to do is to ascertain what the cause for a man being dismissed is —whether he is redundant or not because of the amalgamation. The arbitrator should be allowed to exercise his discretion. We have deleted this word in Section 4, and it is for that reason that I move that it should be deleted in this section. The question as to whether the dismissal is directly due to amalgamation is surely a matter for the arbitrator.
I feel I should have made some reference to this in the Seanad the last day, when the word "directly" was taken out of Section 4. I have been advised that whether the word "directly" remains in or goes out makes very little difference. I think that the only difference is that if the word "directly" remains in one section it should remain in the other. If it remains in Section 2 it should remain in Section 4.
I move that the word "directly" be reinstated in Section 4.
The Seanad must dispose of this amendment first. If this amendment is rejected, then you can deal with that.
Amendment put and negatived.
I beg to move:—
Section 2, sub-section (1). To delete all after the word "Act" in line 33 down to and including the word "cause" in line 39.
An amendment very much wider than this was moved by Senator O'Farrell on the Committee Stage. I voted for it, but I do feel that that amendment went rather far, and now this amendment is very much more restricted. The underlying principle in the Bill is the question as to whether a man's services have been rendered unnecessary owing to amalgamation. It is still open to the company to cite any of the reasons as against redundancy, and I think they may be safely left to cite these reasons without their being enumerated as they have been in this section. For instance, in this section, after going into a number of restrictions, for fear anything would be left out, we have the words, "or other economic cause." That is very wide. If the company contest a man's claim to compensation they will be represented by counsel and solicitor, who are experts on these matters, and the man should be left some chance of getting compensation, which was the intention of the original Act. The Minister may think that the Principal Act was too wide, and should be restricted by this Bill. The section, I think, would be sufficiently tight and stringent if the words that I have moved be deleted are deleted. The railwaymen feel that they have very little chance of compensation if the claim is decided before the arbitrator. Anybody who reads this section will see that the deletion of the words I have moved will still leave the railway company in a very strong position.
I wish to speak against this amendment. How I read this clause does not matter very much. How the arbitrator will read it is very important. If I read this amendment accurately it seems to me that if it is passed the railway company will have to pay compensation to any employees who become redundant for any reason besides amalgamation. If that is so, I fail to see why this particular industry should be deprived of the rights to dispense with the service of any of its employees. I do not see that the company can benefit much from the process of amalgamation, and I do not see that it should be singled out for this exceptional treatment, and compelled to do a thing that no other commercial concern would be asked to do. To do what this amendment would effect would be against economic laws. I may be wrong in my reading of the amendment, but that is my impression of it. It would obviously retard all developments.
In reference to what Senator Bagwell has said, if the Senators would read the section they would see the point of the amendment.
If part of a duty of a railway porter was to light the lamps of a station at, say, 8 o'clock in the evening, and when the Minister's Shannon scheme was fully working, and the lamps are lighted by turning on a switch from the stationmaster's office, that might be pleaded as a ease of that man's redundancy.
Quite right.
The Minister said quite right. Is that fair? It is not quite fair. Let us say that instead of the Minister's Shannon scheme some new invention came along which the railways adopted for the switching on of the lights, and then pleaded that was the real reason for this man not being redundant, and availed of the opportunity which, I think, this section gives a railway company, would that be fair? I consider that is not quite fair.
I am very glad the Senator chose the illustration he did, and it shows the dangers of accepting the amendment. What the Senator has said is that something quite apart from amalgamation comes along and it renders less men necessary, and under cover of the Amalgamation of Railways Act the railway companies are going to be made to compensate that man as if he were retired from the service of the company by reason of amalgamation.
I am sure the Minister does not want to misrepresent me. What I said was that if portion of the task which went to make up a man's employment was done away with that might be pleaded to show that the man was not redundant.
I must again advert to the Senator's failure to distinguish the difference between pleading and proving. A company can plead anything, but they have to prove to the satisfaction of the arbitrator that a man's dismissal is due to some of those things mentioned. Take this vague term "other economic causes." If a railway company can show that a particular individual's dismissal is due to economic causes, then I say it was never the intention when the 1924 Bill was going through to pay compensation to such a man. The whole idea was you are not going to have the benefit expected to accrue from amalgamation where hardship is due to the amalgamated scheme. Take the position, of two railways. Take the Great Northern Railway, where a big number of men have been dismissed from time to time as the economic requirements of the company and traffic necessitated. Then take the Southern Railways Company, and, say, the company put in electric lights which would deprive a certain number of lamp-lighters of employment, are the Great Northern Railway to be allowed to get rid of their men without compensation while the Great Southern have to pay? One is the effect of amalgamation, and the other is not. We want to give compensation to people who have suffered by reason of amalgamation, but for no other reason. The Senator has said if the words be omitted, after the word "Act" in line 33 down to line 39 that the railway company may still bring in any of these arguments as a reason for a man dismissal. Why does the Senator want these words omitted?
I feel that any counsel appearing for the railway is bound to bring in anything that is pertinent in support of his argument. without getting a lead from the Minister.
I move:—
Section 2, sub-section (3). To delete the sub-section and to substitute therefor a new sub-section, as follows:—
"(3) For the purposes of this section any period of service as a trade apprentice with any amalgamating or absorbed company shall be reckoned at the rate of one half of the actual period of the apprenticeship with such amalgamating or absorbed company."
Apprentices to a trade after some little time become of some use, and as time goes on they become more and more skilled. The railway companies recognise that because they pay a small wage, increasing after each year of service as an apprentice. While I do not think it fair to ask that apprenticeship service should count as full service, still I think that this is a reasonable compromise, and it has been agreed to in the English Act.
I am against the amendment. The principle is altogether contrary to the regular practice of apprenticeship. Apprenticeship does not imply continuity of employment as is well known. It is a most excellent system for enabling boys to learn a trade. If the principle in the amendment were admitted, implying continuity of employment, it would be a sure way of killing the apprenticeship system. When boys have served their time they have to find employment in the market elsewhere. That is a natural and by no means unsatisfactory position. I think a most objectionable principle is involved in this amendment. If it were passed there would be less apprenticeship. As a result of the way in which this form of compensation would work out there are several men between the ages of twenty-one and twenty-four who would actually be given, compensation for loss of apprenticeship in the form of an annual pension. I think that that is a most extraordinary theory and most unfair to the employers, and I believe also to the employees discharged for economic reasons, and who would see these apprentices who had no continuity of employment guaranteed by the nature of their apprenticeship treated in this exceptional way.
In reference to Senator Bagwell's remarks, I said nothing at all about continuity of employment. I do not seek to enforce continuity. Take the case of a boy who served six years as an apprentice and who continues to work in the railway for eight years after that. What I seek in this amendment is credit for eight year and for half of six years, in all eleven years. In every other business, whether in the Civil Service or in a commercial business, it is well known that a boy during the first year is a confounded nuisance. He sends letters to the wrong people and puts them into the wrong envelopes. All the same in the Civil Service or in a commercial house a boy's years of apprenticeship count from the time he went in. Why should there be differtiation in the railways? I only ask that an apprentice should be allowed half the period of his apprenticeship in calculating his claim.
Senator Bagwell's contention is the proper contention in this respect. The Bill sets out to compensate officers and servants. The point that we should consider is: what was the prospect of continuity of employment in the railway service? Senator Bagwell has told the Seanad what it was. There was no prospect of continuity. There was hardly even a reasonable expectation of employment in the railway service. This Bill only seeks to compensate those who were considered officers and servants. No one could consider apprentices in that category.
I must not have expressed myself clearly.
Your amendment, Senator, is not drafted to carry out what you desire. As the amendment stands it provides that apprentices with six years' service should be allow to treat three of these years as service for the purpose of gratuity. You mean that if an apprentice stays on after his apprenticeship is at an end he should include three years of the apprenticeship for gratuity?
Yes.
That is not your amendment.
If the Minister is prepared to accept the alteration that has been suggested by you, sir, I will agree.
I would like to take the point that you make about apprentices. The apprenticeship period does not entitle him and was never considered to entitle him to a prospect of continuity of employment in the railway service. Why, because he happens to have got further years of service should he go back to the apprenticeship? We recognise that that is the difficulty. This is a matter of principle and you cannot have a compromise on it. If the Senator thinks it right to count the apprenticeship period at all, why not count the whole years? Why take 50 per cent.? I put it to the Committee that if it accepts the proposal in regard to the apprenticeship years there is no reason for saying that an apprentice who has gone into the service of the railway company should not count all the years he was in the service of the railway company. You can only count the period he was a fully fledged officer of the railway company after the apprenticeship.
I put down the following amendment:—
New section. Before Section 4 to insert a new section as follows:—
"4.—Every officer or servant of the amalgamated company with twelve years' service or upwards whose service is dispensed with for any cause other than misconduct or incapacity, shall be deemed to have lost his employment through amalgamation and shall be entitled to compensation accordingly."
Since I put it down I had an interview with the manager of the Great Southern Railways, and he assured me that the object I had in view has already been arranged between the representatives of the railwaymen and the management. The object I had in view was that men who had been longest in the service would be retained. The manager assured me that the company had accepted the policy that those last in should be first out. I have been informed also that if this amendment is carried it will upset the whole Bill. Accordingly I ask leave to withdraw the amendment.
If I am in order at this stage I move that the word "directly" be restored in line 39 of Section 4.
I put down the following amendment:—
Section 4, page 3. To delete all after the word "Act" in line 41 down to and including the word "cause" in line 48.
In view, however, of the decision of the Seanad on a previous amendment, I now think it covers the object of this amendment, and I ask leave to withdraw this one.
I move:—
Before Section 7 to insert a new section as follows:—
"7.—Every claim for the payment of a gratuity or of compensation arising under the Third Schedule to the Principal Act shall be determined by the amalgamated company or on appeal by the standing arbitrator or board of arbitrators in accordance with the provisions of the said Third Schedule as amended by Section 2 of this Act if the date of the happening of the event giving rise to the claim occurred before the 26th day of March, 1926, or in accordance with the provisions of the said Third Schedule as amended by this Act if the event giving rise to the claim occurs after the 25th day of March, 1926."
The effect of this amendment is that the Bill will apply to men with short service who became redundant on the 26th March. In all other cases the Bill is to apply since the introduction. At the beginning of the proceedings before the arbitrator the company expressed objection to expediting the hearing of cases. Answers which should have been delivered within ten days were not delivered until long afterwards. The company got extensions to three
Section 8. To add at the end of to participate in the sittings of the arbitrator twice weekly, while there was work for a whole week. The result was that cases were held up for many months. If the arbitrator had been allowed to proceed a great many cases would have been decided that have been held over. It is not fair to men who were considered redundant, say, in February last year, whose cases were held over, that they should now come in. If the arbitrator was allowed to proceed, as he could have done but for the delay of the company——
We should have some evidence of that.
If the Minister wants evidence, perhaps he will allow the amendment to go in and leave the matter to the decision of the arbitrator.
You are not putting that in the amendment. Can the Senator give us some evidence of that? I have asked for evidence of that repeatedly.
If the Minister wants evidence of that, perhaps he will allow the amendment to go in, and he will find it in the decisions of the arbitrator or the board of arbitrators.
The Senator is not putting that into the amendment.
No. But as to the Minister's quibble about evidence, I have not come here with an enclycopædia of cases tabulated in detail for his information. He knows, or he ought to know, that I am stating facts. As a matter of fact, the arbitrator heard no cases since the 25th March. Perhaps the Minister would tell us why. I am asking him for evidence this time. I think it is not right that owing to the dilatoriness of the railway company in holding up cases, and only consenting to appear before the arbitrator twice a week instead of from day to day, the men should now suffer disability by reason of the company's want of diligence.
That is exactly the case that was made in the Dáil. It was made on Second Reading; it was made on the Committee Stage, and it was made on the Report Stage. Every time that it was made I asked for a little evidence. Beyond the mere statement we got nothing. I go now to the other extreme. I can say it was the men's representative that caused the delay. I have as little evidence for that statement as the Senator has for his statement. I have asked, over and over again, if there was any evidence that the Company caused delay, or definitely delayed cases, that that evidence should be given. If the evidence was given the stronger would be the case for some change with regard to the operative date for this measure. There has been no evidence. This question has not been asked without notice, and I ask now for the fourth time publicly to have some evidence produced. I make the statement here now definitely that there was dilatoriness on the part of the men's representatives. If the Senator brings forward evidence, at a later date, with regard to there being delay on the part of the companies I am prepared to bring forward evidence on the other hand. I believe I have evidence, but I do not want to bring it out. I do not believe it is going to be to the credit of certain people. It is not for me to criticise people in their professional activities.
The Minister is content to hint a fault.
I said until there is some evidence which I have to rebut as regards the Railway Company on the one side, I have to retort by making a case on the other. I prefer to leave the matter there.
This whole question of retrospection was considered with great detail in the Dáil. The Bill, as it stood, was definitely retrospective, and sought to upset decisions and awards already made by arbitration. That was very violently objected to in the Dáil. I promised that the retrospective portion would be knocked out. I consulted certain people who had been vehement about this particular section, and the result is the clause in the Bill as it now stands. That was queried by the Labour Deputies in the Dáil, but I think that the representatives of the other parties who talked against the retrospective element admit that the clause, as it now stands, meets their viewpoint. Their point was that there should not be such retrospection as would upset decisions or interfere with awards already given. That is the position as it is. I may simply say this that the effect of passing this amendment would be to render this Bill, as far as any change from the 1924 Act, absolutely useless. There have been many cases already listed for arbitration—235 since the 25th of March—although, of course, some of the dismissals may have taken place some date previous to the 25th March. But eighty or ninety per cent. of the possible cases that will arise are going to have the provisions of the old schedule operating.
Amendment put and declared negatived.
I beg to move amendment 8:—
To add at the end of the section a new sub-section.
"(5.) The standing arbitrator or board of arbitrators shall sit in open court."
Would it not be better to alter that to read that "appeals to the arbitrator shall be held in open court"?
Yes, I shall move the amendment in that form: that appeals to the arbitrator shall be held in open court. The arbitrator is a statutory officer appointed by the Chief Justice under the particular Act. His functions are interesting to a great many thousands of railwaymen and to a great many shareholders also, and I think he should sit in public court just as well as the Railway Tribunal. It is as well that as much publicity should be given to these proceedings as possible and that the Press should be present.
Is there anything to prevent his sitting in public at the present?
Generally they sit with a shorthand writer, but not in open court.
What is involved by sitting in open court?
That the Press will be there and the public if they wish.
Might it not be left to the discretion of the arbitrator?
That is the position at present.
The proceedings of the arbitrator interest a great many people. I think it was Disraeli once said that a subject that cannot bear discussion is damned.
The guiding principle of our jurisprudence is that cases should be held in open court. If they are not to be, provision is made for it. I do not think that anybody is going to be hurt by a provision that these cases should be held in open court.
After all, this is a private arbitration.
Practically every cause heard in court ultimately resolves itself into private arbitration. This is a proceeding before a statutory officer or officers, and what is the objection?
You might put it: "On the application of either of the parties interested."
I was going to suggest that Senator Guinness's remarks should be incorporated—"May, on the discretion of the arbitrator," but, as the Cathaoirleach points out, that is leaving the position as it is.
I am prepared to accept "may at the request of either party," and my amendment will then read as follows:—
fSection 8. To add at the end of the section a new sub-section as follows:—
"(5) It shall be lawful for the standing arbitrator or board of arbitrators, if so requested by either party to an appeal, to hear such appeal in open court."
