Conditions of Employment Bill, 1935—Committee.
(1) This Act may be cited as the Conditions of Employment Act, 1935.
(2) This Act shall come into operation on such day as shall be fixed for that purpose by order of the Minister.
I move amendment No. 1:—
Section 1, sub-section (2). After the word "day" in line 18 to insert the words "or days".
The object of the first two amendments is the same. I should not press the amendment strongly on the Minister if he definitely prefers the Bill as it stands, but I should like to give him my reasons why I think some such amendment desirable. A number of sections of the Bill might quite properly come into force immediately. In respect of other portions of the Bill, a considerable amount of care would have to be exercised and time given perhaps for licensing. Special provision may have to be made in certain cases after consultation with employers and employed. If the section stands as it is the Minister will have to do either of two things— bring the Act into force with grave risk of a certain amount of dislocation because particular matters have not been dealt with or delay the operation of the Bill until these matters are dealt with. My suggestion is that the Minister should adopt the practice adopted by the Government in other Acts, notably the Road Traffic Act, and take power to bring specific sections into force on different dates. It is entirely a matter of administrative convenience, and my object is to make the Act work as smoothly as possible and not to delay the bringing into operation of sections which do not require adjustment.
I do not think I should like to see any section of the Bill brought into force until organisation has been created in the Department to deal with its implementation and examine any question which may arise affecting any particular industry. I stated here on Second Reading that two months at least would be required from the passing before the bringing into operation of the Act. During that period of two months we shall be able to make the necessary arrangements to bring the whole of the Act into operation. We have already taken steps to deal with certain work necessary to make the Act effective, and a staff has been put on that work. I expect that we shall be in a position two months after the passing of the Bill to bring it generally into operation. Consequently, I do not think that the Senator's amendment is necessary. If possible, I should rather see the whole Bill come into operation simultaneously. Otherwise certain difficulties might arise. I can assure the Senator that we shall not make an Order bringing the Act into operation until we are satisfied that the possibility of difficulties arising in a particular industry has been eliminated by regulations or orders, to be given effect simultaneously with the operation of the Bill.
I may point out first to the Minister that this would not prevent him bringing it before us at once. It is entirely to provide him with the power which he will require in case the period will be much longer than he expects it will be. I might be able to point out to him in several sections difficulties which he may not be able to overcome in two months. If the Minister does not want to have the power and assures us that he will be ready, it is not for me to press him. I am suggesting that if he is wise he will take it.
That is a temptation to any Minister.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
Question —"That Sections 1 and 2 stand part of the Bill"— put and agreed to.
(1) In this Act the expression "industrial work" does not include agricultural, commercial, nor domestic work nor mining nor the transport of persons or goods, but subject to that limitation the said expression includes all forms of industrial work and in particular industrial work done for or in connection with any of the following activities, that is to say:—
(a) manufacturing, altering, cleaning, repairing, ornamenting, finishing, adapting for sale, testing, grading, packing, breaking up, demolishing or transforming any article.
I move amendments Nos. 3, 4 and 5:—
Section 3, sub-section (1). To delete in line 26 the word "altering."
Section 3, sub-section (1). To delete in line 26 the word "repairing."
Section 3, sub-section (1). To delete in line 27 the words "adapting for sale."
I think it will save the time of the House if I discuss amendments Nos. 3, 4, and 5 together. Perhaps I should say first that on the Second Stage I criticised the rather unsatisfactory definition of "industrial." The Minister replied that it was taken from the Washington Hours Convention and they did not seem to be able to do it any better. I am afraid I am not able to do any better either. I do not like negative definitions, but I assume that it cannot be greatly improved upon. It is probably assumed that every one knows what industrial work is. It may be that these amendments are not necessary, but my object was to draw attention to a contradiction in the definitions of industrial work which you will find from (a) to (n) in the section and to suggest that some of those are definitely contradictory to the expression "commercial work." It may be that if you can prove it is "commercial work" then it will be excluded from it under Section 3 (1), because industrial work does not exclude commercial work. I am not satisfied that that is the case and I want to suggest to the Minister that he might be able to improve it. I am in the position of having to confess that as far as Nos. 3 and 4 are concerned, simple deletion might not entirely meet the case. This does not purport to be a complete dictionary of every kind of industrial work, but you find that the definition of commercial work is "work done for or in connection with the sale, wholesale or retail, of any article." We have "altering and adapting" in conjunction with every kind of sale in the drapery business as well as in some other businesses, and if it be held that altering, repairing or adapting for sale, particularly the first of the three, may be industrial work, then you will have every drapery establishment in the Saorstát applying under Section 4 to be exempted from the Bill on the ground that it is only a very small portion of industrial work which, undoubtedly, it is.
I want to make it clear that I am not going against the workers' point of view. In the greater part of the trade, generally speaking, there are better conditions than those provided for by this Bill. I understand this is part of the Government's plan and that there will be a Bill dealing with the distributive trades later on, and I suggest that incidental work, such as altering work, should not be industrial work within this Bill. It might be better — here I am arguing against my own amendment — to leave the words "altering" and "repairing" and put in a paragraph at the end providing for cases "other than in connection with sale." That might get over the difficulty. When you come to No. 5, "adapting for sale," it might not be put down as one of the specific things to which you draw attention in commercial work when you have a definition of commercial work. When you put an amendment down and think over it later you sometimes see a better way in which you might have put it.
I suggest that something might be done to get over this possible difficulty between commercial and industrial work, and if it was put in, "in regard to altering and repairing, except in connection with sale," and the words "adapting for sale" taken out, it would probably help the situation considerably. What I have in mind, and what the Minister has in mind, I think, is this: He wants to get all this work done in the factory and if it goes back to the manufacturer for repair he wants it covered and quite properly. But there is no danger, even in the case of a manufacturer, of claiming exemption, as it would never pay to take one assistant and say: "This is an assistant for repairing— therefore, it does not come under the heading of industrial work." In the case of the retailer this work is of a small character which must often be done for a customer, but when you connect it with Section 55 you will get a peculiar situation in connection with retail trade.
I think the amendments ought not to be passed because they aim at removing from the definition section, which affects the whole Bill, these classes of operation which are at present covered in almost identical terms by the existing law. So far as they concern night work, young persons in industry, women employed in industry and the minimum age for admission of children to industrial employment these three items are covered by the Act of 1920. The definition which is referred to speaks of industrial undertakings, "including particularly the industries in which articles are manufactured, altered, cleaned, repaired, ornamented, finished or adapted for sale." So far as this inclusion is concerned, they are practically identical with the Bill. If, in this definition section, we remove these three terms, "altering,""repairing" and "adapting for sale," it is removing those operations and excluding them from the value of the Act concerning employment of young persons, employment of children and night work for women. Whatever may be said in favour of the argument that the Senator has put forward it is covered, as I see it, by the power given to the Minister in Section 29 to make regulations declaring any specified form of industrial work to be excluded industrial work. If a case can be made for any special exemption the power is there in that section in respect of particular operations and covering particular parts of the Act. I am sure, however, that the Seanad does not want to exclude the provision prohibiting the employment of young persons, even in adapting or repairing.
I do not want to exclude that at all from industrial work, but the difference in the Bill is that, as Senator Johnson points out, it says, "Industries which include the following." If it were only that I would not have one word to say, but unfortunately we have here a definition of industrial work. I do not want to exclude anything whatever from what is generally known as industrial work, but I want the distributing trade and the things incidental to it dealt with under another Bill, and I suggest that the Minister obviously means that when you come to sub-section (2) of Section 3.
I am pointing out that there is a great danger in removing these terms from this definition and that, in the interregnum between the passing of this Bill and the passing of the promised Bill touching commercial work, the protection for which Senator Douglas is pleading can be provided by the use of this Section 29 and the granting of exclusion regulations.
I think that Senator Johnson is quite right in what he said in reference to the three amendments. It seems to me that, although these amendments might meet the case stated by Senator Douglas, they do not meet every case. Take, for example, the case of providing flowers for funerals and things like that. Is that an industrial occupation? Is it agricultural? Is it horticultural? Or is it industrial?
Well, now, that is just the difficulty. I have in my mind the case of horticulturists — people who sell flowers for crosses and wreaths, and things like that. They get an order for the flowers at 7 o'clock in the evening and these flowers must be delivered immediately. The cutting up of the flowers, working them up, and mounting them on wires — all that must be done immediately the order is received. They are usually required promptly for either a funeral, a wedding, or some other function. I think the difficulty arising in such a case would not be met by Senator Douglas's amendment, but, with Senator Johnson, I think that it could be met by the Minister exercising to the full the powers which he has under Section 29, sub-section (1); that is, the Minister may make regulations declaring any specified form of industrial work to be excluded, industrial work for the purpose of all or any of the sections of this part of the Act.
Yes, but could it not just as well be specified now as then?
No, but he could exclude them for the purpose of some sections of the Act and not for the purposes of other sections. I think it might be better, instead of passing these amendments, to rely on the power given to the Minister under sub-section (1) of Section 29. At the same time, I am glad to have the opportunity of bringing to the Minister's mind the case of florists and people like that who have business in this city and whose position is rather undefined — whether they are agricultural, horticultural or industrial. In any case, I think they are people who are entitled to an exemption under Section 29, sub-section (1).
That deals with times of work, Senator. I think what you are referring to is dealt with in another part of the Bill.
Oh, I see, Sir. I am sorry.
I am going to suggest to Senator Douglas that his amendments should not be pressed, but for somewhat different reasons than those advanced by Senator Johnson or Senator Comyn. Senator Douglas started off by saying that we have here a definition of industrial work. That is precisely what we have not got. I could not tell him what is the exact significance of the phrase "adapting for sale," or, for that matter, the phrase "repairing or altering"; no more, I think, than the Senator himself could tell me. The phrases and words are in there because they are in the Washington Hours Convention and because they have been used in connection with similar legislation. The point, however, which, I take it, Senator Douglas wants to deal with, is the possibility of a worker, who is engaged in work in connection with a commercial establishment, being held as coming within the scope of this Bill.
If it does those three things.
If the Senator will look again at the section he will see that we are not defining industrial work but that we are saying that the Bill covers industrial work done for or in connection with these particular activities and, therefore, we are, in a sense, begging the question. Whether particular work is industrial work or not will have to be determined otherwise; but whether or not it is done in connection with such activities as adapting for sale or repairing or altering, nevertheless, it comes within the scope of the Bill, and therefore we say that when industrial work is done in connection with adapting for sale or repairing or altering, the worker involved comes within the scope of the Bill; but if commercial work comes in he does not, and we attempt to define what the work is. I agree that it is not a 100 per cent. satisfactory arrangement, but it is the only arrangement based upon the form which was adopted in the Convention to which I have referred, the terms of which we are taking and putting into this Bill. The question of what constitutes industrial work in the abstract is one which I think will be impossible to answer. If the amount of industrial work done in connection with any establishment is so small that the Act could not be conveniently applied, then, under Section 4, we have power to exclude the workers concerned from the scope of the measure.
That, of course, is my real difficulty. I think that there are somewhere about 10,000 or 11,000 drapers in the Free State — possibly more. Take the case of adapting for sale, shall we say, a lady's frock, which practically always has to be adapted before its sale because we have not got the uniform woman yet and there is practically always some small alteration to be made. Unless the Bill can be made quite clear — I am not saying for a moment that it will be so decided under the Bill — that that work, done in an ordinary shop, does not come under the Bill, the Minister will have an application for exemption under Section 4 from about 10,000 persons. I want to avoid that if I possibly can, because I do not think it is intended. I know that I more or less gave my case away at the beginning by saying that I was not going to press the amendments because I was not sure that they would achieve the object they intended. I realise that there are difficulties. Of course, I had seen the Minister's point with regard to industrial work, and whether it is industrial work in connection with other things. But when you come to sub-section (2) it is by no means so simple, because you find that work is work done for or in connection with sale. Now, I have no doubt that if there were a case of some considerable importance in that connection, my friend, Senator Comyn, could show at very considerable length that there is no work done in connection with the manufacture of ordinary goods that is not for the sale of the goods. I do not know of any manufacturers who do work on goods except for the sale of them. I suggest to the Minister that between this and Report Stage he should consider whether he could not help in this matter by introducing either in sub-section (1) of Section 3 or in sub-section (2) of Section 3 something that would make clear what I believe is the intention; that is to avoid industrial work which is done on the premises where the main purpose is the sale of goods, whether wholesale or retail. I think it is necessary to exempt work in which the main purpose is the sale. Let all work in industry mentioned by Senator Johnson come under this Bill. We do not want anything in industry that does not come under the Bill. Certainly, as far as I am concerned, I do not, except office work, which is to come in under another Bill and which can easily be defined as ordinary clerical work.
I just want to say this, that Section 29 does give power of excluding any form of work. It is mainly, however, in relation to Part III of the Bill that any difficulties may arise. A general exclusion can be applied if it is found necessary to do so rather than dealing with a large number of individual applications under Section 4.
I have no doubt that the Minister has sufficient power in the Bill to exclude, but I have grave doubts as to whether he will be able to do that under Section 29 where he has to make a definition. I doubt if he will be able to succeed with his Order under Section 29 if he fails here to get a definition to deal with the specific kind of work that I want defined. I do not want to deal with this matter so far as it concerns myself personally. I want to point out to the Seanad that there is general uneasiness about it. Quite a large number of traders have come to me within the last fortnight pointing out their uneasiness about different points. There is uneasiness in the trade. I am most anxious to avoid a situation in which it would be necessary to make a large number of applications with all the trouble, delay and uneasiness that that would involve. I think the Minister will find it difficult to do under Section 29 what I am seeking by means of a general order because there again he has to define the particular kind of work. Could the Minister not consider making it commercial work done in connection with sale on premises: that is, on premises where the main work is sale. I think if the Minister could put that into a suitable form of words that it would probably get over the difficulty.
You have, in fact, retail establishments associated in the same premises with quite considerable factories, and that is particularly so in the drapery trade.
Not in the same premises.
It is not unusual. I agree that is the difficulty about making an exclusion order because you could not exclude seamstresses or other people employed on the premises where a retail trade was also carried on. There may be a hundred such people on the premises. I think that the factory inspectors apply a rough and ready test, and say that a factory is a factory where power is used. But that would be an inaccurate test to rely on in legislation.
I am quite sure that the Minister will give consideration to all that Senator Douglas has said. I hope that when he looks closely into it he will not forget the necessity of safeguarding the interests of the assistants in the shop: the danger that there would be if any loose redefinition was sought for, which would make it possible for retail shopkeepers to evade all the conditions that are imposed on manufacturing industries in this Bill.
Amendments Nos. 3 and 4, by leave, withdrawn.
Amendment No. 5 postposed for Report Stage.
Section 3 agreed to.
(2) Where the amount of any form of industrial work done in the carrying on of any undertaking is so small that in the opinion of the Minister the provisions of this Act cannot be conveniently applied to the employment of workers to do such form of industrial work in such undertaking, the Minister may, upon the application in the prescribed form of the person carrying on such undertaking, grant to such person a licence to employ workers in such undertaking to do such form of industrial work while remaining exempt from the provisions of this Act and while any such licence remains in force the person to whom such licence is granted shall in respect of the employment of workers in such undertaking to do such form of industrial work, be an exempted employer for the purpose of this section.
(4) The Minister may at any time while a licence granted under this section remains in force revoke such licence by notice in writing to the person to whom such licence was granted.
I move amendment No. 6:—
Section 4, sub-section (2). After the word "licence" in line 33 to insert the words "subject to compliance with such conditions as may be stated in such licence."
The object of this amendment is to ensure that the Minister will have power, when issuing a licence under sub-section (2) of Section 4, to insert conditions. If a licence is to be given exempting the licence holder from the conditions of the Bill in any respect, then the position of the worker employed in the industry concerned will be worsened unless conditions, at least as restrictive, as these at present in operation under the Factory and Workshops Act, are imposed in the licence. This Bill does repeal certain sections of the Factory Acts and these sections will not apply after this Bill is passed. If a licence is given to carry on any operations without conditions being imposed in the licence, then the effect will be that the present law regarding employment will have been abrogated. What I am asking in this amendment is that the Minister shall have power to insert in the licence certain conditions. I would hope that the conditions will, at least, ensure that there will not be any loosening of the regulations governing the conditions of employment.
I think that this is a very reasonable amendment. The Schedule to the Bill gives a list of the Acts that are being repealed by this measure. Certain sections of the Factory and Workshops Act of 1921, of the Children's Act of 1903, and of the Factory and Workshops Act of 1907 are being repealed. What the amendment seeks is that if permission is given the conditions that would normally apply under the Acts that are being repealed should continue, and that these should be inserted in the licence. The amendment is reasonable, and I hope it will be accepted by the Minister.
I wonder whether Senators have considered if their amendment would give the Minister power to make new law. According to this amendment he is not confined in any way as to the regulations he could impose or insert in his licence. They need not be the same regulations provided in the repealed Act, but could be any sort of regulations that the Minister might choose to put in. If Senators think that is a right understanding to place on it we will have no objection.
Senator Comyn forgets an important fact, that this section empowers an employer to ask for permission and that the Minister may give permission. Is this particular employer to get permission to do anything he likes, notwithstanding the Act of Parliament?
I was only pointing out one difficulty, that the amendment gives the Minister power to make new law.
I should like to clear up a matter that may have caused some anxiety to the House owing to the observations of Senator Comyn. As Senator Farren said, it is perfectly obvious to anyone who reads the amendment that the object is to give the Minister power to place conditions upon the licences he is to grant under the section, and not to give a licence to a person without any restrictions or limitations. That is all the Senator wants. Instead of being an enabling section for the Minister it is one limiting his powers, and obviously is as construed in other Acts of Parliament.
I was going to point out something like what Senator Comyn has pointed out. It seems to me that this amendment as it now stands is definitely objectionable. The object of the section is to deal with trades not dealt with by the Bill, trades that do an infinitesimal amount of industrial work. If the Minister carries out the intention, as I have no doubt he will, he would only give exemptions where for all practical purposes the amount of work is very small. Senator Farren's argument forgets that the most that can happen is the giving of a licence affecting a small number of workers. The other workers in that industry do not come under the Bill; if a substantial number of workers are affected the Minister has no right to give a licence under these provisions. As the amendment stands, to a firm employing 200 people, only four of whom are doing industrial work, the Minister could say: "You are only getting a licence for the four." I do not want the Minister to exempt firms doing industrial work generally. The provision as it stands is reasonable. It would be ridiculous to give the Minister autocratic powers.
Are employees to be worked for unlimited hours?
Senator Douglas objects to giving the Minister power, but in opposing the amendment he does not object to the employer being left free to do what he likes with the workers. He said that very few firms would be affected by this amendment. A few moments ago he assured the Minister that if he did not do something to exclude portion of another class, he would have 10,000 applications to do so. I suggest that that is a contradictory attitude. The basis of the amendment is to leave the workers exempt under the Bill in no worse position than they were. When this Bill comes into operation certain sections of the Factory Acts go by the board, and employees might have no regular meal hours. For instance, in repair work, there might be no regulations to deal with the position. Notwithstanding the advice of Senator Comyn, we think it better to give power to the Minister, rather than give unlimited, power to the employer.
The discussion appears to be wide of the mark. The occasion for this amendment arose out of the existing Factory Acts. Senator Johnston and Senator Farren suggest that their purpose is to ensure that where an exclusion permit is given under Section 4, the workers will be subject to the existing Factory Acts. It is because experience has shown that it is not possible or convenient to apply the existing Acts that this amendment is necessary. The class of case is one I mentioned in the Dáil: Woolworths, where a machine was put on the counter which produced visiting cards. One of the assistants turned a handle to produce the cards. Woolworths then became a factory under the existing Acts, and were required to display notices as required by existing law and by the factory inspectors. Possibly there are other cases where the amount of industrial work is so insignificant, in relation to the business carried on by a firm, or so small absolutely without relation to anything that the provisions of the existing factory and workshop code cannot be conveniently applied. Then we take power to issue a permit which means that the workers concerned will not be regarded as industrial workers in the ordinary sense, but will be subject to whatever statutory provisions that may be adopted later to regulate the employment of commercial workers. It is not possible to issue that permit subject to conditions. The difficulty is that once a place was regarded as a factory, just as Woolworths became a factory in the circumstances mentioned, the provisions about inspection apply. You do not avoid that position if you give an exclusion permit, subject to conditions, because if you make conditions they will be enforced, whereas the essence of the case you want to deal with is that of a firm where the amount of industrial work is so small that you cannot effectively enforce any conditions of an industrial kind, whatever conditions may subsequently be adopted to regulate the employment of commercial workers. The workers concerned in the type of case in which permits will be given are properly commercial workers, and not industrial workers, and that is why this power of exclusion is retained. It is not possible to exclude them from the provisions of this Bill, and to say that they are still subject to the factory and workshops code. It is not possible to apply that code in the peculiar cases I have in mind.
The Minister's explanation makes the matter worse. What he has in mind is the extreme case, but he says that one reason for not putting any condition in the licence is the difficulty of ensuring compliance.
And the factory inspector.
I take it that if there is any machinery he can make it apply to the conditions of the licence. There is no assurance that this undertaking is to be confined to so small a range as originally contemplated unless we have the perfect faith that all Ministers for Industry and Commerce that will follow the present Minister. This provision in the section, as it stands, will mean that if he once gives a licence it is an open licence without any conditions whatever. I suggest that the Minister ought to be placed in a position to require that a licence holder shall confine the exempted undertaking to that small degree of development that he contemplates at the beginning. The position at present is that it is practically an invitation to the Minister either to refuse to give any licence, or to give an open licence to the licence holder, to progress and develop his undertaking so that he will come into competition and rivalry with every other undertaking carrying on similar business on a larger scale. But the persons employed in these small undertakings, as Senator Douglas has pointed out, in the aggregate, will be a very large number, and I think the Minister himself indicated that Senator Douglas's desires might be met under the provisions of Section 4. If that is going to be the course there is going to be a very large number of people exempted from any protection under this Bill. They may be scattered very widely over the countery—three here, four there and half-a-dozen elsewhere —but they are going to be exempted and there are not going to be any conditions of employment covering them, because they have got an open licence without any condition at all.
Having regard to what the Labour Party members have said, I speak with considerable diffidence on this matter, but it seems to me that this amendment as it stands is definitely against the interests of the workers for the reason that if you authorise the Minister to grant a licence without any conditions whatever it is perfectly clear that his granting of licences will be watched, and closely watched, and that they will be granted only in a very limited number of cases. If you give the Minister power to make regulations, or if you give him power to grant a licence with such regulations as he might consider proper, he will proceed at first to make regulations for the benefit of the worker — little regulations here and little regulations there — and the thing will become easy, and finally he will grant a greater number of these particular licences, and ultimately supersede the beneficial provisions of this Bill altogether. I do not say that the present Minister will do it, but you are opening the door now for a Minister easily, quietly and gradually to supersede this Bill altogether. These are the arguments I submit and I think they ought to carry some weight with the members of the Labour Party.
I should point out to Senator Johnson that a licence is not issued for an indefinite period. Under Section 2, it must be issued for a stated period and expire at the end of that stated period. In any event, it can be revoked forthwith if it is found that the amount of industrial work in any establishment has so increased that such a permit should not have been given. I think the meaning of sub-section (4) is quite clear from the wording:—
Where the amount of any form of industrial work done in the carrying on of any undertaking is so small that in the opinion of the Minister the provisions of this Act cannot be conveniently applied to the employment of workers to do such form of industrial work in such undertaking.
Then a permit may be granted. The type of case intended to be met there is quite clear. That type of case is one in respect of which it is not possible to apply the provisions of the existing Acts any more than the provisions of this Bill, because the workers concerned are properly commercial workers and should be made subject to the legislation that will be enacted, I hope, next year to regulate the conditions of employment of such workers. The regulation of these conditions will probably be done by a separate organisation from the organisation which enforces the factories and workshops code and can consequently be more conveniently done by that organisation.
Amendment, by leave, withdrawn.
I move amendment No. 7:—
Section 4, sub-section (4). After the word "by" in line 44 to insert the words "not less than 14 days."
This is similar to several other amendments. All I want to provide is that there should be some reasonable notice where a licence is withdrawn, because you may definitely affect the workers employed. I think reasonable notice where they are in danger of being dismissed by the withdrawal of a licence should be given. I do not want to make it a long period and I do not want to take away the powers of the Minister to deal effectively with the matter, but I think that the withdrawal of a licence without any notice whatever is a mistake. I have suggested 14 days, but seven days will satisfy me.
I have no strong objection in principle to the amendment, but I should prefer to see the Bill remain as it stands rather than to see it amended in this wise. We have just been discussing this section and the power of the Minister to revoke a licence when he is satisfied that the amount of industrial work has so increased that the licence should not have been given. I think, in these circumstances, he should withdraw the licence forthwith, but forthwith would, in any event, probably mean 14 days. I cannot raise much objection to the amendment, either from the point of view of principle or from the point of view of practicability, but I should personally prefer to see the Bill without it. If there is any strong feeling in the Seanad that the amendment should be inserted, I shall be prepared to accept it. That is my position in the matter.
I at first thought it was desirable to give some notice. Notice is mentioned here, but I am wondering whether it is desirable to give notice at all. If this is a penalty for a complete nullification——
If it is in effect a deprivation because of some fault committed, I do not know if notice is desirable.
Let me give a case in point. This is not provided as a penalty. If it were, I would agree with Senator Johnson. Take the case I was discussing before. I am speaking of a trade I know a great deal of and similar things occur in other trades. Many firms print their own window tickets and that is industrial work under the Bill, unless it is done for and in connection with sale, whatever that means. It will, I think, possibly not be included, but, assuming that it is, there will be perhaps two people employed once a week for an hour or two on this work. The Minister withdraws the licence on one day's notice and immediately the whole of the establishment are liable to have their meals at the one hour, which would be quite impracticable in the retail trade. They will get a permit in seven or 14 days to exempt them from that: from the necessity to have meals at the one hour. I am instancing, if you like, an absurdity, but it is the small points which we want to avoid having difficulty with.
If a firm got a permit to print tickets and got in a linotype and proceeded to print a newspaper, the Senator will agree that the licence should be withdrawn. Unless the amount of work done is such that it comes under the category in sub-section (2) the licence can operate.
I think 14 days would kill the newspaper as effectively as one day.
This provision as to notice would seem to give the person who gets a licence a sort of vested right. Fourteen days is a considerable period of time and it gives the idea that he has a vested right in the licence and the carrying on of the business provided for in the licence. The argument put forward by Senator Douglas in his last remarks was, I think, an extreme statement of the case. I do not suppose that the present Minister, or any future Minister, will be so unreasonable as to withdraw a licence suddenly and without any cause whatever which would have the result of making all the people take their dinner at the same time. That, of course, would be a terrible thing. The workers take their dinner at 1 o'clock and the employers at 7 o'clock.
The employer takes it twice. He takes it at 1 o'clock and again at 7.
The first is only a lunch. I do not think that argument of Senator Douglas's is good.
If the Senator reads the Bill, he will understand what I mean.
The idea of this licence is that there should be no legal right whatever to it and when it is given there should be no vested right in it. It should be a matter for the discretion of the Minister — not to be used very generally but only on rare and special occasions and for specific purposes. Saving that, the general provisions of this beneficial measure should have full force and effect.
I would think that it is much better to leave the section as it is. The Minister has discretion to issue licences and he should have discretion to revoke a licence, whether instantly or within 14 days. The firm that was mentioned which had one person turning out a card might take in 1,000 people to do the same type of work. Are they to be allowed to continue on 14 days' notice flagrantly to defy the Act of Parliament? If anything ought to be left to the discretion of the Minister, it is the date on which a licence, if it is to be revoked, should be revoked.
The Committee divided:—Tá, 18; Níl, 21.
- Bagwell, John.
- Baxter, Patrick F.
- Bigger, Sir Edward Coey.
- Blythe, Ernest.
- Brown, Samuel L., K.C.
- Browne, Miss Kathleen.
- Counihan, John C.
- Douglas, James G.
- Fanning, Michael.
- Griffith, Sir John Purser.
- McGillycuddy of the Reeks, The.
- MacLoughlin, John.
- Milroy, Seán.
- O'Hanlon, M.F.
- O'Rourke, Brian.
- Parkinson, James J.
- Toal, Thomas.
- Wilson, Richard.
- Boyle, James J.
- Chléirigh, Caitlín Bean Uí.
- Comyn, Michael, K.C.
- Connolly, Joseph.
- Cummins, William.
- Duffy, Michael.
- Farren, Thomas.
- Fitzgerald, Séamus.
- Foran, Thomas.
- Healy, Denis D.
- Honan, Thomas V.
- Johnson, Thomas.
- Kennedy, Thomas.
- Lynch, Patrick, K.C.
- Moore, Colonel.
- O Máille, Pádraic.
- O'Neill, L.
- Phaoraigh, Siobhán Bean an.
- Quirke, William.
- Robinson, David L.
- Ruane, Thomas.
Tellers:—Tá: Senators Douglas and MacLoughlin; Níl: Senators D. Robinson and Fitzgerald.
Amendment declared lost.
Sections 4 to 6 agreed to.
(1) Subject to the provisions of this section, the following days and no other days shall be public holidays within the meaning and for the purposes of this Act, that is to say:—
(a) Christmas Day, and
(b) St. Patrick's Day when it falls on a weekday or, when it falls on a Sunday, the next following Monday, and
(c) Easter Monday, Whit Monday, the first Monday in August, and also (if it falls on a weekday) St. Stephen's Day.
(2) Whenever in any year a day is appointed under the Public Holidays Act, 1924 (No. 56 of 1924), to be a bank holiday instead of a day mentioned in the next preceding sub-section of this section, the day so appointed shall in that year be deemed to be substituted in the said next preceding sub-section for the day so mentioned and that sub-section shall be construed and have effect accordingly.
(3) Any employer may, on giving not less than one month's previous notice to all persons in his employment, substitute in any year any of the following days for any of the days mentioned or deemed to be mentioned in paragraph (c) of sub-section (1) of this section, that is to say:—
(a) the 1st day of January,
(b) the 6th day of January,
(c) Ascension Thursday.
(d) the Feast of Corpus Christi,
(e) the 29th day of June,
(f) The 15th day of August,
(g) the 1st day of November,
(h) the 8th day of December.
(4) The following provisions shall have effect for the purpose of the next preceding sub-section of this section, that is to say:—
(a) the notice mentioned in the said sub-section shall be in writing and may be given to any person by handing a copy thereof to him personally or by posting a copy thereof in a conspicuous position in the place in which such person is employed;
(b) no day mentioned in the said sub-section shall be substituted under that sub-section in a year in which such day falls on a Sunday;
(c) when a day mentioned in the said sub-section is substituted under that sub-section by an employer in respect of any year, the day so substituted shall, in that year and in respect of all persons employed by such employer, be a public holiday within the meaning and for the purposes of this Act instead of the day for which it is so substituted.
I move amendment No. 8:—
Section 7, sub-section (4). Before paragraph (b) to insert a new paragraph as follows:—
(b) the day substituted for any day mentioned or deemed to be mentioned in paragraph (c) of sub-section (1) of this section shall be the day mentioned in the next preceding sub-section of this section which is immediately following the day for which it is so substituted.
Under the Bill as it stands, the bank holidays mentioned in sub-section (1), that is Easter Monday, Whit Monday, the first Monday in August and St. Stephen's Day, can be disallowed and the other days mentioned in sub-section (3) substituted for them. As the Bill now stands, it will therefore be possible for an employer when giving a month's notice to his employees to substitute winter holidays for summer holidays by, say, selecting instead of Whit Monday and the first Monday in August two holidays in the winter months. We feel that that was never intended in the Bill and that is why we move an amendment so that if there is any alteration it will be to the next succeeding holiday—in other words, to whichever of the holidays follows the one which he wants changed, so that the change will be in no way detrimental to the interests of the workers concerned. I think the sense of the amendment ought to commend it to the House.
As the Bill was introduced only the public holidays mentioned in sub-section (1) were included and it was provided that these holidays would have to be given. Subsequently representations were made by employers and others in various parts of the country to the effect that outside the cities and some of the large towns the practice was to observe Church holidays and not public holidays and that there should be power given to substitute in these parts of the country Church holidays for the public holidays. These representations were so reasonable that the Bill was amended to provide for them. There is a larger number of Church holidays than public holidays, and we do not think we ought to provide for more than six public holidays. Therefore, a certain element of discretion must be used as to which Church holidays will be selected.
I understand in some parts of the country different practices operate. Certain Church holidays are more generally observed than others in different parts of the country and on that account it is, perhaps, undesirable that we should specify the holidays that must be given under the Bill where the substitution is affected in the manner which the amendment proposes. Senator Duffy stated that as the Bill stands an employer is empowered to substitute winter holidays for summer holidays. It is also true that he may substitute summer holidays for winter holidays and the effect of the amendment would be to prevent him doing that, but generally speaking, the effect of it will be to preserve the holidays more generally recognised and established by local practice. The cases where employers will try to ring the changes on the workers will be very few indeed.
In the majority of cases there will be full agreement between the two because they will be the holidays observed locally, whatever they may be, and no difficulty will arise, but in any event, we feel that as these holidays are to be observed the selection of them must be done by the person responsible for the direction of the business in so far as important considerations may arise in connection with seasonal work— where there may be a great rush of work at one period of the year and a slackness at another period. Consequently, it is desirable that while securing adoption of the principle there should be allowed a certain element of discretion so that business will not be unduly interfered with, and therefore it is proposed to give employers discretion as to which of the Church holidays may be substituted for any of the four public holidays mentioned in sub section (1).
We are in sympathy with the view expressed by the Minister to a large extent on the question of these Church holidays being substituted for public holidays in this sub-section of Section 7. In large industrial centres the Church holidays are not kept, but in rural areas they are kept. Bank holidays are not generally recognised in rural areas. We have no objection to the Church holidays being substituted for these bank holidays. In rural areas the community usually works on Whit Monday, but on the 29th of June there is a Church holiday. If Whit Monday is not kept we want to see that the holiday will be kept on June 29th. Similarly with the first Monday in August — if it is not desirable to keep the first Monday in August then the holiday to be observed would be that on the 15th August. We have no objection to the substitution of Church holidays for these bank holidays that are being named, but we want to prevent holidays which fall in the summer being observed in November and December. We think that the amendment put down by Senator Duffy is a reasonable one and ought to be accepted.
I would like to supplement what has been said by pointing out that there is no suggestion in the section that an employer shall consult the desire of the workers in his employment in selecting the holiday to be observed. One would hope that if the substitution takes place all the employers in the town would adopt the same alternative, but this makes provision for employer A making one arrangement and employer B making a different arrangement. By that fact there is going to be a certain amount of dissatisfaction and probably discord unless there is some kind of restriction.
I was very much impressed with the apprehension on the part of the mover of this amendment that there might be abuses of this power by employers. I was very much impressed by the apprehension of my friend Senator Duffy, and those who are associated with him in this matter, but I was also impressed with another matter, which is this: It may be in the power of employers, either a number of them or perhaps not a great number of them, to do what is apprehended by the Senator who moves the amendment. It may be in their power to do so if this amendment is not accepted, but I would venture to suggest that, if any employer abuses that power, or if numbers of employers abuse the power that they may have under the section as it stands, there is a way of dealing with them other than that provided by the amendment. I do respectfully suggest that the way proposed by the amendment is unpractical and, I would almost venture to say, unprecedented. We must trust to the good sense and sense of fair play on the part of employers that they will not do any of these things that are apprehended by the movers of this amendment.
I think that the position at present is that in the parts of the country where the Church holidays are observed work is not done on these days. This section provides that in future for six days they are to be paid as Senator Johnson points out. Similarly, in parts of the country where public holidays are observed they will continue to be observed, but in future the workers will have to be paid for these days instead of as in most industries up to the present. It is true that the power of substitution might be used in an undesirable way, but I think it is so improbable that it is not worth while providing against it, particularly having regard to the fact that a certain amount of freedom of action is desirable when legislating for all classes of industries, seasonal industries as well as others, and where we cannot provide for the circumstances of them all. This matter was discussed at considerable length in the Dáil and I was left at the end of the discussion as convinced as I had been at the beginning that the Bill is better as it stands than it would be if it were amended in the way that was proposed, and that is how I feel about this. I do not think there will be .01 of 1 per cent. of employers who will try to abuse this power or who will try to break away from whatever is the established practice, and I think it is fair to allow them to take into account the special exigencies of their own businesses, particularly where the industry concerned is a seasonal industry. I think it will be found that in the majority of seasonal industries the rush of work comes in the winter and it will be in the winter period for that reason that most employers will prefer not to give holidays and to substitute summer holidays instead.
I cannot understand the Minister's attitude at all, because the Act provides that "any employer may, on giving not less than one month's previous notice to all persons in his employment," substitute one of the Church holidays mentioned for one of the bank holidays. The holidays we are concerned with all happen to fall on a Monday — Easter Monday, Whit Monday, and the first Monday in August. Of course, St. Stephen's Day is the other one, but it is immediately after Christmas and joins up with Christmas Day to make a short holiday period. The changing of a holiday from a Monday to a holiday which may fall on any day of the week is not as beneficial to the worker. The workers generally have the week-end as well as the Monday. They have from mid-day on Saturday, Sunday and also Monday, perhaps to travel some distance and bring their families to visit friends, and they can enjoy themselves to a greater extent than they possibly could on a holiday which would take place, say, in the middle of the week. That is one of the reasons for this amendment. The employer is vested by this section with power, of his own volition, to change any of these days and substitute another, and that is what we object to. If it were laid down that the employer, should consult with his workers, or if it said "after consultation with his workers" or, "the Minister after consulting with both parties," we could understand it; but it places the absolute power in the hands of the employer to change the holiday from an existing and well-recognised holiday, such as the Mondays I have referred to, and substitute a holiday such as the 1st November or the 8th December, or the 6th January, or any of the other Church holidays mentioned. I think the amendment is a very reasonable one and I would ask the House to adopt it.
I agree that the existing public holidays are more suitable from the point of view of breaks in work than the Church holidays, but I am afraid that in certain parts of the country they prefer to have the Church holidays.
I want to ask Senator Duffy a question. Does not your amendment, Senator Duffy, prevent the employer and the workers from agreeing?
Yes, it does, but we have whittled down our demands as far as possible so as to fall in with the ideas of the Minister in the matter, and with what we believe is the certainty of getting the amendment adopted.
I am rather surprised at the Minister's statement in reply to Senator Duffy. When Senator Duffy pointed out that the section as it stands means that an employer could substitute for three summer holidays three winter holidays, the Minister said that he could do the reverse also and give the worker the benefit of three summer holidays in lieu of three winter holidays. I noticed that that statement was made in the other House and I should like to know from the Minister how it would be done. As far as I know, there are only four holidays in paragraph (c), and only one of them that might be considered a winter holiday —St. Stephen's Day—while, on the other hand, the employer is given the opportunity of substituting from five holidays that are not in the summer holiday period. The Minister also went on to say that in his opinion employers would do the decent thing regarding the changing of the public holiday to the Church holiday. Undoubtedly, the great bulk of employers will, but as the position is at present, it leaves it to the employer, who is permitted to take advantage of the position, to use that position to his own personal advantage. I think that the Minister knows industrialists in this country sufficiently well to know that they will miss no advantage that they can possibly get, and I think that for that reason the House should adopt this amendment. It places every employer in exactly the same position. If an employer wants to open up his premises on the first Monday in August, which is undoubtedly a better holiday for the workers than the 15th August, he has got to give the holiday on the 15th August. Surely there is nothing unfair in that. The Leas-Chathaoirleach asked whether Senator Duffy's amendment means that the employer and worker will be prevented from agreeing on the particular day. As it stands it prevents an employee from agreeing because it gives the employer the absolute right to fix the day. This right to substitute a public holiday for a Church holiday is going to put the worker in a worse position than he is at present, because under the Factory Acts an employer has to give an employee at least three public holidays between the 16th March and the 1st of October. Instead of that, the employer is now going to be put in the position of choosing for himself any of those holidays which he thinks will suit his interests best, and which, in many cases, will be used to the detriment of his competitors.
Senator Johnson made a statement which impressed me very much, and that was that some employers, particularly in towns, may choose a day for the holiday which, with other employers, may be a working day. The Minister should make some provision to guard against that, because if that kind of thing were to be done it would be very disagreeable. It would be resented, I think, by a great many workers if they had to work when other people were on holidays. I suggest to Senator Duffy that he should withdraw the amendment and have a consultation with the Minister with a view to bringing in an amendment that would guard against a possibility of that kind.
I do not agree either with the amendment or with the section in the Bill. Candidly, I am in favour of the Monday holiday. I disagree with the proposal which has been put forward that we should substitute Church holidays for the bank holidays. My reason for that is this: I have been in Dublin now for 30 years, and while I have had to attend to my business during that time, I have managed to cycle Ireland during week-ends. I always appreciated the week-ends. The holiday on a Monday was much better for me, and for every worker behind a counter, than a holiday in the middle of the week. If Senators look at this from the point of view of the health of shop workers, it is much better that they should get off at 1 o'clock on Saturday and return to work on Tuesday than that they should get off at 1 o'clock on Saturday, return on Monday morning, and then have a holiday on Wednesday. From the Church point of view, there has been a lot of talk about certain parts of Ireland which keep Church holidays. The diocese of Ferns is the only one in Ireland that I know of that observes the Church holidays, and so far as the workers in Dublin are concerned, that arrangement did not work out well for them. You always had excursions from Wexford on those days. Cheap fares were given by the railway company which Wicklow people also availed of. The result was that if a shop assistant in Dublin did not get Mass on a Catholic holiday before he went into work, he could not assist at it later in the day, due to the influx to Dublin of people from Wexford and Wicklow. A holiday on a Saturday or a Monday would, in my opinion, be preferable to a holiday in the middle of the week.
I want to correct the statement that has been made by Senator Staines, that there is only one diocese that observes Church holidays. I can state that all the dioceses in the North observe the Church holidays, and that, no matter what decision may be come to on this amendment, they will continue to do so. I think there is a good deal in what has been said by Senator Duffy, that if the Monday is substituted it would be much more convenient and a better arrangement for the workers.
The statement made by Senator Kennedy about the provision in the existing Factory Acts is quite misleading. The holiday provision in those Acts only applies to women and children. I have a great deal of sympathy with the idea that all factories in a town should fix on the one day, but that may be completely impossible. There are certain factories that may never close even under this Bill, and that will not be required to close because of the fact that they are factories in which continuous process industries are being carried on. Such factories are mentioned in the relevant sections of the Bill. Furthermore, the conditions in various industries may be quite different. They may be different, for instance, in respect of the period during which they are working at highest pressure. It is impossible, I think, to get uniformity in the matter of opening and closing hours, or even of days, although that has been done, to a great extent, in most cities and towns through the adoption of the public holidays. But, even in some cities and towns some of those industries will have to work on the public holidays because of the nature of the work carried on in them, and provision is made for that in the relevant sections of the Bill. Therefore, I should not like that the desirability of having that arrangement should weigh unduly with Senators.
Why not leave it to the Minister to decide?
The Minister may have to decide that it was necessary, in the interests of the industry, that the persons engaged in the industry would have to work on those days and that some other days would have to be observed as holidays by them.
But why not make the Minister's decision final on the matter?
What we are proposing to do is to leave it to the employer. We think, now that we are imposing on an employer for the first time a statutory obligation to give to his workers six public holidays with pay, that it is not unreasonable, within the narrow limits of selection given to him, to allow him to select the days upon which he is going to give them pay. Again, remember it is not a question of deciding on what days work will not be done, but rather the days on which the employer will be required to pay them, even though work is not done.
I have not heard anything to convince me that what is in the amendment is not perfectly reasonable. As the Bill stands, it will be possible for an employer to disadvantage the worker by substituting winter holidays for a summer one. That is the thing that stands out.
The Minister stated that he was not convinced by the eloquence of the appeals made to him in the Dáil on this. He seems to be equally unconvinced by the eloquent appeals made to him by members of this House. What I want to know from him is: is there any possibility of a compromise on the matter? He is very rigid on this.
If the Senator compares the section, as originally introduced, with the Bill as it is before the Seanad, he will see how far I have compromised.
It will be possible for an employer under the section as it stands to substitute a winter holiday for a summer holiday. Surely, there should be some provision made against a possibility of that kind. We all know, and the Minister better than anyone else, that if one employer takes an advantage of the provisions in the Bill, that will be an inducement to many others, and that certain abuses will develop. We are trying to anticipate that by pointing out to the Minister a way in which the very valuable efforts of the Government to ensure that workers will get holidays when they are most advantageous, will be maintained. If the wording of the Bill is left in such a way that employers could use them as they wished, the efforts of the Government would be nullified. Consequently, I suggest that the Minister should take power to safeguard the workers, and not to leave it to the employing class to decide when holidays will be given.
I suggest that a satisfactory way out of the difficulty might be found if the amendment was withdrawn and if a provision was put in at the end of Section 7 (3) providing that three of the holidays must be given between Easter and the end of August. That would meet the case and would allow a reasonable amount of holidays to be given during the summer.
Is the Minister prepared to agree to that?
I should like to consider it.
The amendment to be withdrawn now and brought forward on the Report Stage.
I would prefer if the Minister would bring forward an amendment then.
It can be postponed for the Minister to bring forward an amendment.
Amendment deferred to Report Stage.
Sections 7 and 8 agreed to.
(3) A prosecution for an offence under any section of this Act may be brought at any time within whichever of the following periods latest expires, that is to say:—
(a) three months after the date on which it is certified in writing sealed with the official seal of the Minister that evidence sufficient to justify the institution of such prosecution came into the possession or procurement of the Minister, or
(b) six months after the commission of the offence.
I move amendment No. 9:—
Section 9, sub-section (3). After the word "Minister" in line 34 to insert the words "but not later than 12 months after the commission of the offence".
The object of this amendment is to provide some ultimate time limit within which there might be a prosecution. It applies to both worker and employer and it seems to me that a year after the offence is a reasonable period. As the section stands if the Minister gets information five years after the offence and so certifies there can be a prosecution.
As the Senator is aware, this section is taken from the unemployment insurance code and it is our experience under that code that very frequently we do not learn of the commission of an offence until a long time after it happens. Take the case of a worker in regular employment for ten years who then loses his employment and goes to claim unemployment benefit; it may be found that his employer never stamped his card. It is only when the claim was made that the offence was discovered. That may go back for a number of years. Similar circumstances might arise here. It is extraordinary how ignorant people are sometimes of their rights in legislation. A worker in a place might not realise that he was entitled to a week's holidays in the year, and it might be only after three or four years that he realised that he was not allowed holidays. If the usual provisions applied it would not be possible to go back and penalise the employer for having defaulted in the provisions of the Act. Perhaps a worker might be an offender under other sections, and it would not be possible to penalise him except some such provision as this was in the Bill. The existing procedure under the unemployment insurance code is working quite regularly. As soon as evidence of the commission of an offence is forthcoming the Minister gives a certificate and on the basis of that certificate proceedings are taken. It is proposed to institute the same procedure here. The circumstances would be different if there was an overriding period of 12 months. I think if there was to be a limitation it should be longer than 12 months, as certain evidence might not be forthcoming within the 12 months.
I suggest that the insertion of such a clause would be almost without precedent and would be calculated to do injustice in some cases. As the Minister pointed out, it is impossible to discover sometimes when the offence was committed. I am opposed to the amendment.
I do not propose to press the amendment against the Minister but I think his reply is scarcely fair to it. I do not think the effect of the amendment would be to prevent a person getting back payment, because he could still sue for it. I am dealing with prosecutions which are comparatively rare. In the case of unemployment insurance the question of paying up and putting right bona fide arrears is common. There was nothing in my mind except with regard to making up anything done in error.
I was not thinking of that. I was thinking of penalising an offender when information on which a prosecution could be based, might not be forthcoming for 12 months. A number of prosecutions dealing with unemployment insurance arose when the workers claimed benefit, and on examination it was found that they got unemployment benefit two or three years before to which they were not entitled.
Amendment, by leave, withdrawn.
Section 9 agreed to.
Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution is passed by either House of the Oireachtas within the next subsequent 21 days on which that House has sat annulling such regulation, such regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under such regulation.
I move amendment No. 10:—
Section 10. To delete in line 37 the words "as soon as may be" and to substitute therefor the words "within seven days."
This is the usual provision requiring that regulations made by the Minister shall be laid upon the Table of the House. It is in the usual form, that is to say, providing that the regulations shall be laid "as soon as may be." I used to think these words "as soon as may be" meant immediately and without any delay. They have not been so interpreted by the authorities here, and I want more precision. I suggest in the amendment that there should be a change, and that instead of "as soon as may be" (which might be three months) it should be within a very short time. Under the Unemployment Assistance Act there is a provision of this kind. It is very important, because the habit is growing of giving power to the Minister to make regulations which have the force of law unless and until they are annulled by the Oireachtas. Under the Unemployment Assistance Act we had a regulation which had to be laid on the Table and might be annulled by the House within a period of 21 days subsequent on which the House sat. Order No. 84 provided for the employment period beginning on the 17th day of April and ending on the 21st day of May. That was signed and became effective on the 28th of March but was not laid on the Table until 4th June. A second Order, dealing with the second employment period covering 17th of July to October 1st, was made on the 29th June and was not laid on the Table until 9th August. I have selected these two Orders out of a number of others because they concern the present Minister. I have only mentioned these two cases because the Minister might know about them. It is also not an infrequent happening for Orders of a similar kind to be made by other Departments, but not tabled for a considerable time after being made. It might well be that the value of the provision giving power to the House to annul an Order is lost utterly, because in the case of the two Orders I have quoted, the period concerned had practically lapsed before they were tabled. That is a matter of considerable importance unless we are to have an understanding of what the phrase "as soon as may be" means. If it is insisted upon and thoroughly well understood that "as soon as may be" means immediately, and without any interval of delay, it will certainly be within seven days, because before an Order is made it has at least to be typed, and a copy or two copies could be made of the typescript and the Order lodged with the officers of the House immediately. There is no need to delay even seven days, but when we have delays of two, three and four months before Orders are tabled, it shows that there is no understanding of this phrase in the minds of the officials concerned. It is an important matter and if there is going to be looseness in the observance of these regulations regarding the laying of Orders, it means that the authority of the Oireachtas is undermined and that the powers of the Oireachtas to check administrative faults is completely annulled. Therefore, it is a very serious matter and I have taken this method of bringing it before the Minister. I hope for all concerned that there will be a clear understanding of what the phrase means. I am not sure whether it would not be desirable to put a very definite period as a headline for clauses of this nature in future Bills, but I should like to hear from the Minister how he interprets this phrase.
The phrase "as soon as may be" has been interpreted as "forthwith" and has been always understood to have the same significance as "forthwith." I agree that it is very undesirable that there should be any delay in tabling Orders which have been made so that the power of either House of the Oireachtas to annual these Orders by resolution should not be impaired, but delays frequently occur when Orders have to be printed and translated into Irish before printing. However, I think that difficulty could be overcome by arranging to table provisional typewritten copies of the Orders and furnishing printed copies later. It is a matter I should like to look into. I do not think, however, that Senator Johnson gets over the difficulty by suggesting that the Orders must be laid on the Table within seven days unless he also provides what is to happen if they are not so laid. Even if that provision were in the Bill, and, through some mistake or otherwise, an Order was not tabled in seven days, it would be difficult to say what the position would be unless there were consequential provisions as well. The best procedure, in my opinion, is to use the term "as soon as may be" and to say that it means "forthwith" in practice. While I cannot say at the moment off-hand the reason for the delay in tabling the particular Orders to which the Senator referred, I agree that that delay should not have happened.
I am glad the Minister realises the seriousness of this. I put it to him especially because what seems to me to have led to this fault is the assumption that an Order that is made must be translated and printed before it is laid on the Table, while, as a matter of practice, in certain other sections of the Minister's Department, it is customary to lay the Orders on the Table in typescript. In the cases in question we have Orders made in June and, according to the printers' superscription, printed in September.
Is the Senator certain that copies of the Order were not laid on the Table?
Yes, I have made particular inquiry on that point. While I am speaking of the Minister's Department, I could quote a number of other cases of other Departments. The Bacon and Pigs Quota Order — I think that is the Department of Agriculture — was made on 25th October and tabled on 4th December. The Bacon and Pigs Quota (No. 2) Order is dated 31st October and laid on the Table on 4th December, and the Beef Voucher (Amendment) Order was made in August and tabled in December. I think I could say the same about the Department of Local Government, so that there is a screw loose somewhere, and I hope the Minister will take whatever steps are necessary to direct the attention of the responsible people, at least in his own Department, to it. I expect that when he finds out the fault in his own Department he will find the fault in all the other Departments.
I am afraid Senator Johnson will have to wait until somebody wealthy enough takes the case to the Supreme Court to find out the meaning of the phrase "as soon as may be" and what exactly happens when an Order is not put on the Table. It cannot invalidate anything done in the meantime, but if it was never put on, whether it is still valid is an important matter. In view of the Minister's remarks, I have come to the conclusion that it does not mean anything at all. It is merely an indication of what the House would like done, and I doubt very much if there is anything whatever to force the Minister to lay it on the Table at any time. I doubt if the proposed seven days would force him. It raises a very interesting constitutional point which I do not think was raised before, but I am inclined to think it does not mean anything.
Following what Senator Douglas has said, I think it would be very desirable to alter the formula, and I think I will propose an amendment for Report Stage to bring this point to a head so that these regulations will not be effective after a certain period unless they have had positive acceptance by the House.
Amendment, by leave, withdrawn.
Sections 10 to 14, inclusive, agreed to.
(2) Where any regulations made under this section are for the time being in force in respect of any form of industrial work it shall not be lawful for any employer to employ to do such form of industrial work either (as the case may be) any young person or so many young persons that the number of young persons so employed by such employer bears to the number of other workers so employed a proportion greater than that fixed by such regulations.
(4) In this section the expression "young person" does not include any apprentice who is employed under indentures whereby he is bound to serve as apprentice for a period not less than three years or is employed as apprentice under rules made by an apprenticeship committee under the Apprenticeship Act, 1931 (No. 56 of 1931).
I move amendment No. 11:—
Section 15, sub-section (2). To add at the end of the sub-section the words "Provided that it shall not be obligatory on any employer to cease to employ a young person or young persons if the proportion fixed by such regulations is altered because of the temporary absence of any adult worker or workers in his employment".
I do not know that this is a perfectly satisfactory amendment, but it is designed to deal with a possible difficulty. It is not an uncommon thing to have agreements between employers and trade unions with regard to the number of workers and the number of young persons, and, where that is done, there is, of course, a certain amount of elasticity. Where there is illness or anything of the kind, it is always arranged amicably. I am assured of that by both sides. When you come up against the law, it becomes necessary to have some little elasticity, and I think, whether this is the best way or not, it should be agreed that if you have proportions of, say, 25 per cent. young persons to 75 per cent. adults, you should not have to dismiss a young person because the absence of an adult sets the proportions wrong, at any rate, for a reasonable time. That would not be done so far as any agreements are concerned, but we know now that an offence might be discovered ten years afterwards. Departments and inspectors have to be rigid because there are, admittedly, people who will try to abuse these provisions, but I think there should be some elasticity provided in the Bill.
It strikes me that the amendment might very well be considered by the Minister before deciding upon it if the words "through illness" were inserted after the word "absence." If these two words were inserted, the matter might, I think, receive consideration, but, without them, I think it is too wide.
It would not be any consolation to a young person dismissed to find he need not be dismissed because the other person, with whom he had nothing to do, was ill, but that he would have to be dismissed because the other person took a holiday. That would be quite right if dealing with the person concerned, but where it is a question, possibly, of dismissing a young person because of the absence of another worker with whom he or she has nothing to do, the question of illness does not arise. "Temporary" might be defined as four or five days. If the worker were out for a week, the matter would have to be adjusted.
I think that there is something to be said for the amendment, and I ask the Senator to leave it over until next stage.
Amendment adjourned to Report Stage.
I move amendment No. 12:—
Section 15, sub-section (4). After the word "who" in line 47 to insert the words "at the commencement of this Act."
Sub-section (4) takes away from the Minister the power set out in sub-section (1) to prohibit the employment of young persons in certain forms of industrial work and to fix the proportion which the number of young persons may bear in certain industries to the number of other workers so employed. We contend that in sub-section (4) the Minister is leaving it to the employer to decide how many young persons he shall have in his employment, irrespective of what order the Minister makes. Assuming the Minister fixed the percentage of young workers at ten in a particular industry and there were 25 per cent. of young persons employed, there would be nothing to stop that employer from getting the additional 15 per cent. of young people indentured and, thereby, defeat the Minister's Order. On the last occasion on which the matter was raised, the Minister had some doubt as to whether or not I understood the power given in this section. I should like the Minister to understand the power he is giving to the industrialist to defeat, if he so desires, sub-section (1) of this section. I know industries in which there is at present a very high percentage of young persons employed. I know that these industrialists will do everything they possibly can, when this Bill becomes law, to continue to employ the same number of young people. If the Minister leaves sub-section (4) as it is, he will discover that the industrialists will take full advantage of it. I do not say that there are not many industrialist who have regard for decent conditions in industry, but it is against the people who will not have that regard we have to legislate. I know that while this Bill was being discussed in the other House, certain firms in Dublin were considering this section so as to defeat any restriction on the employment of juvenile labour that the Minister might impose. If my amendment were adopted, it would prevent an employer from using sub-section (4) so as to defeat the object which the Minister has in view.
I wonder if the employers who are unscrupulous could not be prevented from employing too many apprentices under the provisions at the end of this clause, which refers to rules made by an apprenticeship committee under the Apprenticeship Act of 1931. I wonder if this apprenticeship committee would have any powers that would override the powers of the employers.
I do not think that the matter is of very great importance. If the practice of evading the regulations made under this section were generally resorted to, it would be possible to deal with the position either by fresh regulations, made under the section, or by action under the Apprenticeship Act. I agree that we have not many apprenticeship committees established under the Apprenticeship Act. Bringing them into existence is rather a slow business, because the procedure to be followed is rather elaborate. It is clear that if an employer in a particular industry sought to continue to employ an undue proportion of young persons by the practice of indenturing them as apprentices, he could be got at by the process of bringing that industry under the Apprenticeship Act and setting up an apprenticeship committee with power to settle, by regulation, the proportion of apprentices to be employed to adult trained workers. On the other hand, there is not much of a case to be made against the Senator's amendment. I do not think that the amendment is of any great importance, and if the Senator desires to press it, I should be disposed to accept it. I think that the position will be much the same in either event. If the Senator thinks that there are dangers which the acceptance of his amendment will obviate, that is an argument in favour of putting it in, but I do not think it will make a lot of difference.
In reply to Senator Comyn, I should like to say that, if all apprentices came under the Apprenticeship Act, the position would be all right, because the committee would regulate the number of apprentices in a particular industry. However, there are two classes of apprentices to be considered — the indentured apprentice who does not come under the Apprenticeship Act and the apprentice who does come under the Act.
Will this amendment affect persons who may be indentured in the future?
No; it merely means that, in calculating the number of young persons employed in a particular industry, the apprentices must be taken into account. The amendment may require more detailed consideration in respect of the possibility of making an Order under sub-section (1). It may be necessary to provide for cases dealt with under paragraph (a) and I suggest that the amendment be postponed to Report Stage.
Amendment postponed to Report Stage.
Amendment No. 13, which is consequential, will also be postponed to Report Stage.
Section 15 agreed to.
(1) The Minister may in respect of any form of industrial work, after consultation with representatives of employers interested in such form of industrial work and with representatives of workers so interested, by order make regulations either
(a) prohibiting the employment of female workers to do such form of industrial work, or
(b) fixing a proportion which the number of female workers employed by any employer to do such form of industrial work may bear to the number of other workers so employed.
(2) When any regulations made under this section are for the time being in force in respect of any form of industrial work it shall not be lawful for any employer to employ to do such form of industrial work either (as the case may be) any female worker or so many female workers that the number of female workers so employed by such employer bears to the number of other workers so employed a proportion greater than that fixed by such regulations.
(3) If, when any regulations made under this section are for the time being in force, any employer employs a female worker or a number of female workers in contravention of such regulations such employer shall be guilty of an offence under this section.
I move amendment No. 14:—
To delete the section.
I hope the House will support me in my effort to have the section deleted. The arguments used on the Second Stage against my objection to this section were rather unfair. Senator Foran said my opposition was "feminism gone mad." I should like to assure the Senator that I was never associated with the feminist movement. I was always in sympathy and, where I could do so, I helped it if it did not clash with the work in which I was always engaged — work for the freedom of my country. That work is not yet completed and I have always felt that I required all my mind, heart and energy for that work. Therefore, though sympathetic to the feminist movement, I never associated myself with it, publicly or privately, and it was unfair to claim that it was a feminist objection on my part. When, if it occurs in my lifetime, we have obtained the full freedom of our country it is quite possible I will then join the feminists, but until then I am a Nationalist first. I hope I will always be a Nationalist. I think it was unfair for him to use that expression and in using it, I believe he knew my objection because, to some persons the feminist — particularly to men — is a horror. My objection to this is on national grounds— not on the grounds of feminism. I base it on the fundamental objects laid down in the 1916 Proclamation. That proclamation gave to every citizen equal rights and equal opportunities, and it seems to me that if you legislate against one section of the community, if you are going to curtail them in the way they are to earn their living, where are the equal opportunities provided for in that proclamation? I cannot see where they are.
Another argument which Senator Farren used was that if this legislation was not passed we would have men minding the babies and keeping the house while the women went out to work. My answer to that is that if men could do that job as well and as successfully as women, I do not see why they should not do it. It is most important work for the nation, though rather sneered at by men, because on that work depends what the individuals who will comprise the future nation are going to be. I do not think it would detract from their dignity in any way if they will do it as well as women. Senator Farren said that Section 16 had to be put in the Bill to try to preserve some little employment for male workers — that the section only gave the Minister power to say that the proportion of women to men should not be greater than that laid down. Why does the Minister not name the particular industries which he is aiming at? A lot of my objection would be met if the particular industries were named. I might probably be in sympathy with them. The present Minister may have the most holy, the most idealistic and the most beautiful ideas about what he is going to do with the women, but he is only here for to-day or to-morrow——
The next Minister may not have the same kindly feelings towards women that the present Minister has, and it is putting a weapon into his successor's hands which he may use ruthlessly against the opposite sex. It is unfair to put such a weapon into the hands of those who come after us. Senator Farren is smiling at me. He thinks it is all moonshine, but really you are legislating to-day for the future. As I said, the thing I am afraid of may not come within the time of the present Minister. It may be in the time of someone else and it is that somebody else that I am afraid of. Senator Johnson had none of the arguments of Senator Foran, but he is often so much above all our heads that I would not care to tackle many of his arguments. He asked to whom else would the power be given but to the Minister. I agree, but in giving the Minister the power I would give it to him in a very limited fashion. The limitation I would put on it is that I would ask him to specify the industries out of which he is aiming to put women. I would be perfectly in agreement — I will put that up to the Minister — if he said "I am going to prevent women from ever scrubbing floors and I will make men do it instead." With that aim, I would be in absolute agreement, because scrubbing floors is an ugly, hard and badly paid job, and men do not want it. If he brings in a clause that will prevent women from scrubbing floors, I will be with him.
This Section 16 of the Bill is directed in the main against the daughters of the very poorest class of the community. I think that statement is sustainable. Children over 14 years work in factories. To my own knowledge I know several families whose daughters are in factories, and they earn for the first period of their employment 8/2 per week — that is the wage for the child. I know a family where the man earns 25/- a week and he has two daughters each earning 8/2 per week, which makes 16/4. That 16/4 goes to the lifting of a burden on a very poor home. There is one thing in connection with the earnings of girls. I think we may be sure—in fact we can guarantee — that what they earn goes directly into the home. They do not drink it or play "house" with it — they bring it home. It is to that very poor class this section will apply. During the discussion on the Bill there was no effort to prove that by putting out the girls the men would get employment at a sufficient amount of money to keep not only themselves but the girls who are put out of work. In fact, it is our knowledge that that will not be the case. Really, what the section means is putting boy against girl, or woman against man.
Last night I heard over the wireless the protagonist of this section advocate his principles, but there are many thousands more females than males in this country, and if you are going to lessen employment of these redundant females as they are called, what is going to be the position? This protagonist said that after 25 years of age no woman should be allowed to work— she should be married and in a home. But where are the homes? Certainly the home is the place, but the men are not able to keep the home and the women must help. In another grade of society, men with £300 and £400 a year have to send their daughters out to work because they are not able to provide for them and they must be trained to do something for themselves. If you are going to put women out of employment you are going to take out of the homes these few shillings a week which are now a blessing to them. That will be acknowledged, I think, even by the Labour Party. The Senator who spoke held forth about the glories of the home and said the home was the place for women. Well, I hope he will set up a bureau to supply women with husbands and homes. That is his place.
The House adjourned at 7 p.m. until 3 o'clock on Thursday.