Holidays (Employees) Bill, 1938—Committee.
Section 1 put and agreed to.
SECTION 2.
(1) In this Act—
the word "worker" means any person of the age of 14 years or upwards who is employed, other than—
(j) a person—
(i) who is the wife, husband, father, mother, grandfather, grandmother, stepfather or stepmother of, or who is a son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister of, the person by whom he is employed, and
(ii) who is maintained by and dwells in the house of such last-mentioned person, or
(2) For the purposes of sub-section (1) of this section the expression "agricultural worker" means a person who is employed by the owner of agricultural land and is so employed wholly or mainly on work (including industrial work) connected with the user of such land, but does not include—
(a) a gamekeeper, or
(b) a stableman, or
(c) a groomsman, or
(d) a person wholly or mainly employed in work connected with any part of such land which is maintained as an amenity to a residence on such land, or
In this sub-section the expression "agricultural land" means land used for tillage, dairy farming or horticulture or used as grazing, meadow or pasture land but does not include osier land or woodland or land used as a market garden or a nursery ground.
I move amendment No. 1:—
In sub-section (1), paragraph (j) (i), line 22, page 3, after the word "stepmother" to insert the words "uncle", "aunt",
This section, as the House knows, is making provision for the exclusion of certain people from the operations of the Act. I do not know how the Minister came to exclude these two classes of people in view of all the other relatives he has included in this particular sub-section. I do not think it requires any argument to make it appear necessary to make the insertion which I have asked the House to agree to.
We will take amendments Nos. 1 and 2 together.
The other amendment is much the same.
In sub-section (1), paragraph (j)
(i), line 25, page 3, after the word "half-sister" to insert the words "cousin or other relative".
As the Minister knows, it is a very common practice for these relatives to be resident with or working with their people, and I think it would be inequitable, particularly in view of the others who are mentioned, not to insert these. I hope the Minister will see his way to accept the amendment.
In recent years we have had a number of Bills of one kind or another in connection with which it was decided to exclude from their scope the relatives of employers. In the process of time we have evolved a standard definition of relative for that purpose and this is the classification of the relatives that should be excluded from that type of legislation. This definition here is in the standard form, and for that reason, apart from other reasons, I would be very slow to agree to any change in it. But, apart from the fact that we desire to keep the scope of this measure in conformity with those measures to which I have referred—the Shops Acts, the Workmen's Compensation Acts, and similar measures—there are practical difficulties in extending the definition of relative in the manner suggested by Senator Baxter. It is not infrequently a matter of some difficulty to establish the relationship between an employer and a relative employed by him when the question of enforcing legislation of this kind arises, but that difficulty is more pronounced in the case of those who are uncles, aunts and cousins than in the case of those who are of the degrees of kindred set out in the section. It would, I think, add very considerably to the difficulty of enforcing this legislation if this amendment were inserted and I do not think that we should do that. It must be appreciated that an employer who can, by means of the employment of relatives of these remote degrees of kindred, escape the obligations of measures of this kind secures an advantage over his competitors—an advantage which I do not think be should be given. It is necessary to exclude certain relatives because enforcement in their case might be still more difficult, but I think we should limit, in a very definite way, the class of relatives excluded. My experience when measures of this kind were before the Dáil and Seanad was that there was a much greater tendency to move amendments restricting the number of exclusions than extending these exclusions. What class of relatives should be brought within a section of this kind has been the subject of so many discussions in the Dáil and here in recent years that I do not think it would be advisable to depart from the standard form which has been evolved. To do so would cause complications not merely in respect of this Bill but in respect of other Bills in which the same definition has been used.
On the merits merely of the words, taking Senator Baxter's two amendments, he seeks to exclude "cousin or other relative." I sympathise with the Minister in his refusal to accept the phrase "cousin or other relative" because that is so extensive that it would nullify the whole list. But, referring simply to the wording of the sub-section, I do not understand how you can bring in a grandfather and grandmother and fail to bring in an uncle and an aunt. While I can see considerable difficulty in discovering—particularly in the country— cousinship, I cannot see any difficulty in discovering the relationship of uncle and aunt. Perhaps the Minister would compromise by accepting the uncle and aunt and abandoning the cousin.
There is no case for excluding relatives from the scope of the Bill save the difficulty of enforcing the measure in the case of relatives who are within the degrees of kindred set out. One can visualise a shopkeeper or other class of employer having very intimate relationship with relatives of these degrees who are residing in the same house with them —such a relationship as would not exist in the case of the ordinary employer and employee. It is because of that intimate relationship that it is difficult, if not impossible, for the State to intervene and regulate holidays and so forth. The only reason for excluding any relatives from the scope of the Bill is the practical difficulty of enforcing the Bill in respect of these relatives. There would be no means in these cases of ensuring observance of the law. But the narrower the class of persons excluded the fairer the measure. While that argument does not apply in the case of this Bill with the same force as it applied in regard to the Shops Bill, it applies, nevertheless, and Senators should bear in mind that an employer who succeeds in escaping this obligation in relation to relatives employed by him gets an advantage over his neighbour who has no relatives employed. In the Shops Act, the Workmen's Compensation Act and other Acts the particular degrees of kindred set out here are also to be found and, from the point of view of uniformity, no change should be made unless there is a good case for it. I do not think that there is ground for extension in the case of this Bill. I think the move should be in the opposite direction.
We have all had uncles and aunts and we all know instances in which young men are working in businesses in which their uncles or aunts were engaged. This provision does not refer to business——
It does not refer to shops.
If a nephew went into his uncle's or aunt's industry, he would have to make provision for giving his uncle or aunt holidays, while the grandfather or grandson would be excluded. I cannot see the point in that at all. If any relatives, after the father and mother, ought to be excluded from the terms of the Bill, it would be the uncle or aunt. After the parents and the members of the family, the uncle and aunt would rank.
I do not agree with that at all. In the ordinary case where a father employs a son, it seems clear that there should be an exclusion. All the rest follows from that. Where the son employs the father there should be exclusion. All the other classes mentioned here—daughter, grandson, grand-daughter and so on—come within the same category and, going backwards, you have the father, mother, grandfather and so on. Where that degree of relationship exists, where the parties live in the same premises and are maintained by the employer, then I think they should be excluded, however reluctantly we may do it, because of the peculiar difficulties of enforcement. I should be opposed to any extension of the exclusion beyond that degree of relationship, and I should object to bringing in aunts, uncles or cousins.
It is not a fact that the relationship of the uncle or aunt to the employer justifies their exclusion. Relationship is not the reason for exclusion; it is the difficulty of enforcement because of the relationship. If the person employs an uncle to work for wages, then I think the same conditions should apply to that contract of employment as would apply in the case of a person having no such relationship to the employer.
Amendment No. 1, by leave, withdrawn.
Amendment No. 2 not moved.
In Section 2, at the top of page 4, we have a definition of "domestic worker." This was inserted in the Dáil and inserted for a particular purpose. I am not sure that I am right in this, but, as far as I can make out, unless there is some reference elsewhere in the Bill "domestic worker" means a person who is a worker and who is entitled under his contract of service to free lodging either in his employer's house or elsewhere. Does that not conflict with the definition of an agricultural worker later on? Would not an agricultural worker, enjoying lodgings in his employer's house or elsewhere, become a domestic worker under this?
In the debate in the other House, which I read, the Minister said that it was now all right, and everybody let it alone.
I do not quite see where the conflict arises.
I think Senator Hayes is wrong. If he will read sub-section (1) of Section 2 he will find that a worker is there defined, and that a worker means a person, excluding a whole long list. One of these exclusions is an agricultural worker, and, therefore, he is not a worker for the purposes of this Act.
I move amendment No. 3:—
In sub-section (2), line 27, page 4, to delete the word "mainly" and to insert in lieu thereof the word "partly."
Sub-section (2) reads as follows:—
For the purposes of sub-section (1) of this section the expression "agricultural worker" means a person who is employed by the owner of agricultural land and is so employed wholly or mainly on work, including industrial work, connected with the user of such land.
I want to insert the word "partly" instead of the word "mainly" there, so that it would read "employed wholly or partly on work." In the first place, I think it would be impossible for anyone to define this matter. I am at a loss to know how exactly it will be determined whether a man is mainly employed working on agricultural land or not. Who is going to determine that? I think it would be impossible. An inspector may come along, but is it the inspector who will determine the matter or is it the worker himself or the employer? I think it would be impossible to get a definition as to whether or not a man was mainly employed on agricultural work. For two or three days in the week a man might be employed, during the greater part of his time, doing what would be undoubtedly agricultural work purely, out in the fields, but for part of another day or two he might be engaged in the type of work that might not be said to be mainly agricultural work. Accordingly, I think it is essential that this amendment should be inserted here. The administration of the section would be impossible otherwise. I myself, at any rate, cannot see how it is going to be properly defined whether a man is mainly engaged on work on agricultural land or how much more work he will have to do on agricultural land for the purposes of definition. Who is going to watch the number of hours and so on, and how is it going to be done? Further, I think that if the man is doing work on the land, even though he is engaged at another period on work of another type that, from the Minister's point of view, is not purely agricultural work, it is altogether wrong to be trying to draw that line in that form. If you have a man, because he is doing a certain amount of work around the place and who is then called out to the fields, being entitled to holidays while other men working in the fields with him are not entitled to holidays, I think that work on the land would be impossible. I believe that the insertion of the word "partly" there would remove difficulties with regard to administration that are impossible to visualise at the moment.
As Senator Baxter knows well, it is the custom down the country to hire men from May to November, and from November to May, and I think that Senator Baxter is right in the point he makes. The man is employed on the farm from 8 o'clock in the morning until 8 o'clock in the evening, and I believe that he is a whole-time worker. In any case, I think it is well that the point should be made clear so that employers down the country may know where they stand in connection with this matter— that is to say, that if you employ a man on the farm you cannot allow that man to do work apart from that.
I agree with Senator Baxter, and I think that his amendment would remove the difficulty of administration, as otherwise there would be great confusion.
Senator Baxter and the other Senators who spoke are merely concerned about the possibility of administrative difficulties arising. I am prepared to take the word "mainly" out so that the sub-section would read "employed wholly on work connected with the user of such land," but I do not think Senator Baxter would agree to that. The insertion of "mainly" was a concession to agriculturists to ensure that a man would not lose his status as an agricultural worker if he were employed mainly on work connected with the land. I am prepared, as I say, to remove that word, but I could not agree to substitute the word "partly" for "mainly." To insert the word "partly" would make a farce out of the Bill altogether, because it would be open to any employer to evade the holidays provisions by employing a man once or twice in the year on agricultural work. I could not possibly agree to the insertion of "partly" instead of "mainly." I am prepared to consider taking "mainly" out, so that only those will be described as agricultural workers who are wholly engaged, all the year round, upon agricultural work and upon no other form of work. I do not think that the actual difficulty of determining to whom this will apply, because of that certain looseness in the definition, will prove to be very great in practice. The only answer there is that individual cases will have to be considered on the facts. This is something of which we have fairly considerable experience, because the same question arises frequently in connection with the insurability of persons under the Unemployment Insurance Acts, and it is necessary, for the purpose of these Acts, to determine in individual cases whether a worker is employed mainly upon agricultural work or upon work which is insurable under these Acts, as agricultural work is not insurable.
In any event, I think that if, in the course of an employment year, a man does the qualifying number of hours of work to which the Bill applies, and which is not agricultural work, he should get the same treatment in regard to public and annual holidays as other workers get in similar work for a similar amount of time. That is what, in fact, the Bill purports to provide. The inclusion of the word "mainly" was decided upon in order to ensure that a person would still be regarded as an agricultural worker, and, consequently, outside the scope of the Bill, even though on occasion that person did work which was of another character. I think we have gone a considerable distance to meet the representations put forward by agriculturists. We have excluded agricultural workers and those mainly employed on agricultural work, and we have also excluded industrial workers if their work is mainly done in connection with the running of a farm. I would not be prepared to go further than that, and under no circumstances would I agree to accept the word "partly," because that would open the high-road for the evasion of the Act throughout the country, a high-road which I feel would be availed of in full.
Might I ask the Minister on what grounds he excludes agricultural workers from benefits under this Bill? It seems to me that agricultural workers are as justly entitled to holidays as any other employees.
That is a point of view with which I have a great deal of sympathy. The only answer to it is that it has been the practice to deal with the conditions of employment of agricultural workers under separate legislation, legislation which applies to them only. The application of this principle of holidays to agricultural workers should properly be done by an extension of the Agricultural Wages Act rather than by inclusion in a Bill of this kind. If Senator Sir John Keane is prepared to have that principle extended he will not find much opposition from the Government. They have much sympathy with that view.
Is that matter under consideration by the Government?
We are not dealing with that.
Has the Government given consideration to it?
The Government is not proposing it but in principle I agree with the Senator; there is very little to be said against it.
Does the Minister intend to introduce it?
If such a measure is brought in will the Government give their co-operation or support to it?
For fear of being misunderstood, I want now to say that I do not want to be taken as promising the co-operation or support of the Government for a Bill of that kind. The introduction of that measure will have to depend upon an improvement in agricultural conditions.
Is the amendment being pressed?
The Minister says he will not accept it. There is no use in arguing it any further.
Amendment, by leave, withdrawn.
I move amendment No. 4:—
In sub-section (2), line 34, page 4, after the word "land" to insert the words "not in a rural district."
I may say that in my view there is nothing more detrimental to the progress and development of agriculture than this type of legislation. It is bad enough to have us in the country looking at the joys of the towns and nothing the ease of the dwellers in the urban areas and all those amenities that we cannot enjoy in the country, but it is going to be much worse when you are going to divide the country against itself. One sees the road workers walking home on their half-holidays while our men —country workers—have to stay on in the fields. Now there is going to be added to that another list of people who are going to be given their holidays while our workers have to stay on if the food is to be produced and if agriculture is to live. I find it rather impossible to reconcile the views of the Minister and of his colleagues in the Cabinet when they go out and talk at various gatherings, such as they have been attending recently—I find it hard to reconcile the views given expression to there with the great body of their legislation. The position the Government is going to create is this, that you will have men working around a lawn keeping the walks in condition and the grass trimmed and using their machines and the rest of it, and these men are going to be given benefits under this Bill. But the men on the same farm who are working out in the fields and who have to withstand the heat and burden of the day, men who are engaged with their ploughs and tractors during spring, summer and harvest, are not going to be given any of these holiday benefits at all. Both groups of men are working side by side, but the men who are around the lawns and whose work is so easy that they have not even to take off their coats, are going to be given holidays which are denied to the farm workers. I feel that that is a state of things that is most inequitable. When one talks about people getting holidays, one feels that they are being given holidays because they have worked very hard; because they have been engaged in exhausting toil and that because of that exhausting toil they have stored up something on which they can draw. It seems to me that the Minister has begun at the wrong end altogether. It is the people who are engaged in exhausting toil who are excluded while side by side with them the men who have to work less strenuously are to enjoy the privileges of holidays. The Minister admits that the agricultural position must be improved before agricultural workers can be given holidays. He admits that there will have to be very considerable improvement before the people who employ the workers will have holidays. A few nights ago the Minister for Finance said:—
"Anything, therefore, which would tend to impede the fair course of trade between the two countries, anything which would create enmity between the two peoples, or arouse prejudice against this country, her people or her products, is a matter of the gravest concern to everyone of us, but most of all to those who are the mainstay of Ireland, the farmers and the tillers of the soil."
Now that is true, and I am quite convinced that there is no use either in the Minister for Industry and Commerce or the Minister for Finance going to open new industries or attending meetings of the Industrial Development Association or bankers' dinners and talking about how essential it is for the welfare of the State to have agriculture put on its legs if they are going to go on legislating along lines that are definitely creating inequalities as against the rural workers. It is bad enough to divide the country from the town. It is bad enough to make the town more attractive as against country life. But it is much worse to divide the country against itself. It is much worse to divide one house against itself as the Government is doing under this Bill. Under the Bill as it stands there will be found houses where one maid will get holidays and the other maid will not. I feel that the Minister ought now to take these matters into account. If you decide to exclude certain people from the privileges of this Bill you will not exclude them for all time. But if you give people certain privileges now you are never going to be able to take them away. We are all poor or rich in comparison with somebody else. Our lives are hard or easy judged by the standards that others are enjoying. If in the rural districts certain people are going to be given certain privileges because they are not workers on the land then you will not be able to get people to work in the fields at all. I strongly urge on the Minister that he should take into account that point of view now. If the Minister leaves the section as it stands certain people will be given benefits under the Bill and others working on the very same lands will be excluded. I am sure the Minister is not prepared to face up to the position to which such legislation is leading.
I believe that, in an agricultural area, if you can pay a man and feed him you are going to have that man; there is no question about that, and it is optional to yourself to give him a holiday if you wish to do so. I would agree with the Minister that the agricultural labourer should not be included in this Bill. Generally speaking, the small farmer employs only one man and one girl, and if that labourer were to be given a holiday of two weeks or even one week in the year it would embarrass the members of the household. It would be much better to give him extra pay, and have him there. That is my idea. I certainly agree with the Minister that the agricultural labourer should not be included in this Bill.
With regard to the line of argument pursued by Senator Baxter, I am afraid those anomalies are inevitable with this class of legislation. When you get the Government interfering with industry in that way you are bound to have anomalies. I am astounded that the Minister should differentiate, first of all, by casual remark between agriculture as not being able to afford and other industry as being able to afford legislation of this kind. Surely the Minister must admit that all those burdens are borne by agriculture in the last resort. All those high costs which the Minister is piling on by this legislation are ultimately borne by the small farmers with 30 or 40 acres all over the country.
I think it is quite unfair for Senator Baxter to attempt to make a comparison between industry, as such, and agriculture, for the purpose of decrying the holidays to be given to industrial workers under this Bill. There is no comparison between the work done in industry, so called, and work done in agriculture, so called. I think it is quite an unfair premise for Senator Baxter to make that comparison. Work on the land, difficult and onerous in itself, is no more onerous than work in factories, and certainly to oppose giving those holidays to industrial workers on the grounds that agriculture is not in a satisfactory condition is unfair, and should not be done.
Senator Sir John Keane made reference to the fact that agricultural workers were not being included in the scope of this Bill, and attributed that to the depressed economic condition of farmers. I had more in mind the circumstances under which agriculture was carried on than the actual financial condition of farmers at present as compared with any other time. The manner in which agriculture is carried on in this country would make it difficult to apply a measure of this kind to that industry. Certainly an entirely different type of machinery would be needed for enforcement purposes, but as the Senator is, no doubt aware, the suggestion of paid holidays for agricultural workers has arisen before, and has arisen outside this country. I think I mentioned here on the Second Reading debate that the Committee set up by the Government of Northern Ireland to consider the conditions of agriculture there recommended the introduction of legislation to provide paid holidays for agricultural workers in that area, and I think I am correct in saying that in many districts in Great Britain it is an established practice. That has nothing whatever to do with the amendment before the House now.
Senator Baxter's speech, in so far as it related to the amendment, was in fact a speech against it. He did complain here, and complained bitterly, during the course of the Second Reading debate that the Government was legislating for the benefit of the urban population to the neglect of the rural population. I pointed out then, and want to emphasise now, that not merely was the contrary the case, but the Government had of deliberate policy exercised great care to ensure in all this kind of legislation that differentiation was not made, and this Bill as well as previous Acts of a similar character is based upon forms of work—not localities or areas or anything else. It is Senator Baxter who is now proposing to make a differentiation between rural and urban areas. We set out to say that certain classes of workers—estate workers, those who are employed attending to gardens and doing work in connection with the maintenance of the amenities to a residence—should be regarded as coming within the scope of this Bill, no matter where they are employed, whether in rural or urban areas. But Senator Baxter says: "No; do not give that privilege to workers in rural areas. Give it only to workers in urban areas." That is the purpose of Senator Baxter's amendment and that amendment I am going to resist. I think we should not make that differentiation in the treatment of workers doing a similar form of work in rural areas and urban areas. I think those workers, if they should be within the scope of the Bill at all, should be entitled to precisely the same treatment whether they perform that work in a rural area or an urban area. I think workers employed in that form of work, employed as estate workers attending to those amenities, should be given the same rights in respect of holidays as other classes of workers to whom this Bill relates. Apart from that objection in principle to Senator Baxter's amendment, there is the practical difficulty that so far as I know there is no legal definition of what constitutes a rural area. Certainly it would be a rather tedious matter to get embodied in this Bill a definition of a rural area which would convey what is obviously Senator Baxter's idea. In any event, I do not think any differentiation should be made. I think the Bill should be based on forms of work, and should apply to workers engaged on those forms of work no matter where they do it.
The Minister definitely mentioned the case of gardeners as coming within the scope of this Bill. Can he satisfy himself on the difference between gardening and horticulture? Horticulture is definitely excluded.
That would be the next amendment, I think.
I presume that if horticulture is done as an amenity it comes under one category, and, if it is not, it comes under another.
I think the Minister has not approached this matter fairly. In the first place, he alleges that I am responsible for trying to make a differentiation between town and country; that I am trying to create a situation where the man in the town will enjoy something which the man in the country, who is engaged on the same sort of labour, cannot enjoy.
Of course my view is that the man in the country should enjoy all those amenities first; that if the country could afford them the first man who should get them should be the countryman. I would relate every other man's privileges to those of the countryman. That is where the Minister, in my view, is entirely wrong; he is beginning at the top, and leaving the poor people at the bottom to carry the whole weight all the time. The poor people at the bottom are getting fewer and weaker and, unless there is a vast change, a great many people at the top will come tumbling down. There is no doubt whatever about the truth of that. With regard to this particular amendment, in the first place my view is that the number of people who will come under it and enjoy those holidays is a very limited number. Accordingly, I think that their exclusion from this particular privilege will not cause any very great hardship. But what it is going to do is this: Let us take any of the places here, perhaps Senator Parkinson's or Senator Quirke's. A man employed there will perhaps to-day, to-morrow or the next day be engaged in the garden—and the day after he will be ordered to help with hay or something else. There you have him out amongst the other workers, this gentleman who can enjoy his holidays, while the other men who are reaping the corn or gathering in the beet have got to carry on without any holiday whatever. Now, that is the thing I do not want. It is the psychology that it is going to create which is really going to be very disturbing to our rural life. We are disturbed enough already and it is this sort of thing I am totally opposed to.
I ask the Minister to look upon this matter with a more open mind. I realise that when you put something in a Bill you are very reluctant to alter it, but I am convinced that in this matter the Minister is going to do something which will have a further disturbing effect on the people who are trying to do the work in the country. The country people know at a distance what is going on in the towns. You only see the townspeople when they come out into the country after their day's work has long finished and you are still working away. What we are most concerned about is what is going on in the country, what is happening at our neighbours' places, what one man has to say to another when they meet after the day's work is done; and if the man who has been trimming hedges, attending to gardens or mowing lawns can come out after his day's work is done and at a time when other people are working hard, and can occupy the privileged position of getting holidays when the others have not a chance of doing so, it will finish up with all of them being anxious to become gardeners or hedge-trimmers.
I would like some information, really for my intellectual satisfaction, as to the meaning of that term "amenity." The section sets out—
"a person wholly or mainly employed in work connected with any part of such land which is maintained as an amenity to a residence on such land."
Is "amenity" a legal term? Has it a strict legal definition, or will you have arguments in the courts as to what an amenity means? There are all kinds of problems that can arise in connection with gardens close to the city. Take my own case. I got an agricultural grant for my garden. I have two and a half acres of land and I employ a gardener. The gardener grows vegetables for me. Quite a considerable amount of vegetables. He is mainly employed on that work. Does he, or does he not, come under this Bill? I think that is a point that requires to be cleared up.
I do not know whether there would be any judicial determination of the exact meaning of the term "amenity." We set out to put in the form of legislation the ideas which were accepted by us as appropriate to a measure of this sort and we have here the result of the efforts of the draftsman to that end. If there is any suggestion offered by way of improvement of the draftsman's handiwork I am prepared to consider it. I want it to be clearly understood what we are attempting to do. Senator Baxter is obviously confused about the purpose of this section. He talked about a man clipping hedges one day and the next day attending to corn or hay. Clearly, from the words the Senator used, he has not fully appreciated how the sub-section or the paragraph came to be here at all.
The purpose of the Bill is to ensure that all workers will get holidays with pay. We have already provided under previous Bills for holidays with pay for industrial and shop workers. It was decided to extend that to all workers, but we found that certain exclusions had to be made and one of the classes to be excluded was agricultural workers, those employed wholly or mainly upon agricultural work. In order to ensure that there could be no evasion of the intention of the Bill by reason of that exclusion, it was found necessary to put in a definition of agricultural workers. We make it clear that amongst those not to be regarded as agricultural workers are people employed wholly or mainly on work on any portion of land which is maintained as an amenity to a residence situated on such land. We do not regard persons who are employed wholly or mainly on that work as agricultural workers and, therefore, we are not going to exclude them from the Bill, whether they do that work in a rural or an urban area.
An employer with an estate in a rural area may be better able to pay his employees than an employer with an estate in an urban area. Senators do not have to look very far around the country to see situated in rural areas employers who could, without difficulty, afford to pay workers who would be granted holidays. The question of the ability of the employer to pay might arise in a rural or an urban area. To make a differentiation on the basis of the locality in which the work is done is fundamentally wrong. I am quite prepared to consider excluding altogether from the Bill men employed on market gardening, but I am not prepared to make an exclusion merely because of the locality. I believe the provisions of the Bill should apply whether the work is done in a rural or an urban area. It may be that the definition of agricultural worker here will give rise to some difficulty. I am not foolish enough to hope that it will not. The definition of agricultural worker inserted in previous Bills nearly always gave rise to difficulty and such definitions were either the subject of legal determinations or administrative difficulties.
I mentioned already the effects of the Unemployment Insurance Act. That Act does not apply to workers employed wholly or mainly in agriculture and, although it is very nearly 20 years since the Act was passed, one of the principal duties devolving on the Minister for Industry and Commerce is deciding on individual cases whether a named worker is an agricultural worker or not and whether he is wholly or mainly employed on agricultural work. These decisions are continuously coming out of his office. It would be foolish to expect that no difficulty will arise from the definition. I am prepared to improve the definition, if it is possible. The purpose is merely to ensure that a class of worker, namely, the agricultural worker, to whom we do not think this applicable, will be excluded, particularly persons not employed on agricultural work, but who, because of the locality in which they live or the nature of the work they do, might reasonably be mistaken for agricultural workers.
The Minister has not convinced me. I want to point out that I made no reference whatever to the capacity of the employer to pay. I did not introduce that point at all. I do not think it has any relation whatever to the amendment or to the section. What I did point out was, and what I think the great inequity is, that you are here going to legislate in such a way that certain employees who at certain times of the year will be doing exactly the same work will be divided: one or two will get holidays and the others will not. I fear the result of that will be actually the dropping of some of those men who are at present engaged in keeping residences in the trim condition they are in to-day or it will have such an unsettling effect on the minds of the other people who are working on the farms and who are not getting holidays that it will be much more difficult to keep them. As a result of all this legislation, we will very probably have fewer people employed and a further fall in our productivity.
There is the question of the person wholly or mainly employed. I want to point out that in the rural districts these men will go out on the farm at certain periods of the year and will work at the same kind of work that others are engaged on in the fields. The men in urban districts or in cities will not do that. The men in the urban districts or cities are not going to the hayfield or the cornfield. They are not going to be called on when there is a rush in spring, in summer or in harvest. There is no comparison at all between the conditions and the kind of circumstances in the city and in the country. It is because it is my view that this legislation would result in obvious inequities and that these inequities are very bad for rural life that I am urging the Minister to accept this amendment. I do not know what difficulties there are about the words "not in a rural district." I took it that "not in a rural district" meant that it would be in an urban district or in a city and that that would cover it. Everything the Minister has said has convinced me of how essential this is. I am now more convinced than when I introduced the amendment. It may be that he and I are talking in different languages.
I do not think the Minister is quite fair to this amendment. I agree with the Minister that workers ought to have holidays and I am entirely convinced that all kinds of workers ought to have holidays, but the Minister is a very skilful debater and is not quite fair to the amendment or the arguments put forward on its behalf. I made an endeavour to understand the exact points that are being made by Senator Baxter. The Minister has put up an argument that nobody else put up, that is, the argument regarding the ability of the employer to pay. The Minister says his purpose is to give holidays to all workers. We have already dealt with shop workers in another Act. That is that. We are now dealing with another class of workers, agricultural workers, but the Minister has in his mind, and I agree with him entirely, that the thing should be finished up eventually by including all classes of workers. The question is one, not of principle, but of expediency as to what kind of workers you are going to include in this Bill for the moment. The Minister says, with a certain amount of half truth, that the object is to differentiate between types of work done, not between the localities in which the work is done. That, of course, is perfectly sound, but he must be aware, as we are all aware who know anything about this country, that the point Senator Baxter is making is a clear and simple one: that in a particular rural area you will have a man—call him a farmer or gentleman farmer or anything else you like—who may have half a dozen employees all of whom will work together for certain times of the year but one of whom, owing to the operation of this particular paragraph of the sub-section, will get holidays while the other five will not. I do not begrudge holidays to the whole six. I would like them all to get it but, while the state of mind of the Government and the economic state of the country are such that you cannot give the six of them holidays the point arises for discussion whether it is not more unsettling and more unjust in that particular place and in those particular circumstances to give one of them holidays and exclude the other five, whether it would not be better for the moment, when you are proceeding step by step, to exclude the whole six of those particular people. That, I think, is the argument and it is a simple one. It is not an argument directed towards the ability of the employer to pay. It is not an argument directed towards depressing the conditions of any particular class of worker. It is an argument as to whether that is going to have a very bad effect upon the five people concerned and also, I think, as to whether it is not going to make it more difficult for some of the people, and the decreasing number in the country, who are actually in jobs to-day to keep the jobs they have. That is a point the Minister ought to deal with and I think it ought to be dealt with without indulging in any kind of debating arguments.
Senator Sir John Keane stated in connection with this amendment that in a Bill of this kind you cannot avoid certain anomalies. I think he is probably right, but we are here for the purpose of trying to reduce the number as far as possible. I would like to suggest that this matter should be left over for further consideration. I agree with the Minister that the exact amendment of Senator Baxter would not meet the case and would possibly go too far if it were worked at all. But there is a clear distinction to my mind between ordinary agricultural land and the large estate which is not maintained for the purpose of agriculture at all—there may be a certain amount of agriculture incidental to it— and I am inclined to agree with the Minister that in that case it ought to come under the Bill. But where you have a farm in which there happens to be a very small proportion of it around the house and a man is employed most of the time there I think it is an unwise provision to provide that that man alone should have a holiday. I think it might be possible by a different method to get over the difficulty by providing a different type of amendment, an amendment to provide that where the amenities (I still do not know exactly what the legal definition of it will turn out to be, but we will assume for the moment it means the land around the house, pleasure grounds) are a very small proportion of the total the employee should not come under the Bill. If this is passed I think the effect will be very much like this: a farmer who may have employed one man as a gardener who is not particularly suitable for agricultural work will cease to employ that man and will get a man who is generally suitable and divide up between his workers such work as has to be done around the house and keep them all on the same basis. I do not think that will be done simply to avoid one man's half-holiday. It may in some cases, but, generally speaking, it will not. I think most of us who have any experience at all as employers know that it is highly undesirable to have different sets of conditions with regard to holidays. I shall have something to say about that later on in the Bill in connection with another matter. As far as possible, we should aim at amending this Bill so as to provide that people who are employed together in the same kind of business and doing the same kind of work should be entitled to the same holidays.
As far as I can see, one statement made by the Minister in his argument covers the whole thing, that is, the difficulty of defining what is a rural area. Senator Baxter suggests that it is a terrible thing to insist on segregating the people in the rural areas into different groups. I suggest that they are already segregated into different groups. The people he refers to in his various statements are the people who have not already benefited by the previous Act wherein the definition of an agricultural worker came up for discussion. The stableman, the gamekeeper, the groomsman and various others did not come under the heading of an agricultural worker for the purposes of the Agricultural Wages Act, and when it is the policy of the Government to pursue the thing until every man in the country comes under the heading of some Holidays Bill, I see no sound reason why the amendment should be insisted upon at all.
There is no doubt about it that agricultural labourers are at present the most unprivileged class of workers in the country as a whole and there is no doubt about it that there is a lot in what Senator Baxter and Senator Hayes have advocated, that we should do nothing to aggravate the sense of lack of privilege which these people must feel under present difficult economic conditions. I understand that agricultural labourers are not eligible for unemployment pay, but that road workers are. I am told by some of my farmer friends from the country that it is difficult under present conditions for a farmer to add to his staff of agricultural workers, because the people who ought, in the country's interests, be taking up agricultural work, very much prefer to take up some of those other very privileged occupations in which they are entitled to unemployment pay during certain seasons of the year. If you legislate on the lines which the Minister is advocating you will merely add one more to the objectionable differences which lower the status of the agricultural worker and make him feel his lack of privilege and merely add another difficulty to the difficulty that exists at present of getting a desirable increase in the recruitment of agricultural workers in the agricultural industry. In general, I think that there could be no greater economic advantage than to increase the number of workers for agricultural wages in this country, but if you legislate on the lines of this Bill the number of agricultural workers is more likely to diminish than to increase.
Senator Douglas told us that estate owners will find ways and means of evading their obligations under this Bill. I realise clearly that such is the case. In fact, I might say from my own experience, whether in connection with Unemployment Insurance Acts, National Health Insurance Acts or Conditions of Employment Acts, estate owners, as a class, go to the greatest lengths to avoid giving to their workers the benefits secured for them under legislation. They are the hardest class of employers on whom to enforce legislation of this kind. The way out of that difficulty—the difficulty that employers may find methods of evading their obligations—is not to release them from the obligations but to improve the machinery of enforcement. I would not be disposed to exclude any class of workers from this Bill merely because of the possibility that they may be unfairly deprived of the privileges of the Bill by some device which has not been foreseen by us.
On the general question raised here, I just want to say that I think we should be very slow to depart from the basis on which the Bill has been framed. It is designed to ensure that certain regulations shall apply to forms of work and not to localities, classes of persons employed, or classes of employers. We have to relate these regulations to forms of work and we should stick to that basis. If we do that, I think we must reject Senator Baxter's amendment even though somebody else may take his arguments and urge them to secure the exclusion of other classes of workers no matter where employed. I know that anomalies will arise. The fact that the Bill is not universally applicable means that these anomalies are unavoidable, but I submit that we must not, in our anxiety to avoid anomalies, take the risk of creating a much larger number of them and that I think is what would result from the adoption of this amendment. Senator Hayes made a reference to clever debating. One of the commonest tricks in debate is to present a picture and to get it accepted as a typical picture of the condition of affairs by the other party to the debate. I submit that the picture which Senator Hayes depicted on Senator Baxter's inspiration, was not in any sense typical. The ordinary case will not be the case of an employer with half a dozen employees, one of whom will get holidays and the rest of whom will not. It will be quite the reverse. It will be the case of an employer with half a dozen workers, all of whom, with the exception of perhaps one, will be entitled to holidays. So far as numbers are concerned that case will arise perhaps nine times for every one case of the kind to which Senator Baxter refers.
Take the case of the ordinary employer in a suburban area who employs a domestic servant, a chauffeur, and a gardener. His domestic servant, his stableman and his chauffeur would be entitled to holidays, but his gardener, if this amendment were adopted, would not be so entitled. That is clearly a case which would be more likely to cause discontent and the other evils to which Senator Hayes referred to than the other type of case where the employer maintains a number of agricultural workers and one gardener who would come within this definition. I would urge that Senators should keep that particular case in mind. We cannot avoid anomalies altogether, but if we proceed on some logical basis, we shall at least reduce them to a minimum. We want to give these privileges to all workers. We recognise that certain classes must be excluded, either because of the fact that they are able to protect their own interests, because they receive a remuneration above a certain figure, £350, or because the nature of the regulations are such that it would be difficult to apply them in their case. One of the classes we want to exclude is that of agricultural workers. Let us exclude them, but let us take care that we are excluding only agricultural workers and not persons who are employed in a suburb of a city or a town who could not be, by any means, classed as agricultural labourers. We do not regard them as agricultural workers. They should not be regarded as agricultural workers, and they should be given the same right to annual holidays and public holidays as any other classes to whom the Bill relates.
Would the Minister explain the difference between a gardener and a horticultural worker which was referred to by Senator Sir John Keane?
I cannot do better than to quote the terms of the Bill. The Bill states that the expression "agricultural worker" means a person who is employed by the owner of agricultural land and, further, that the expression "agricultural land" means land used for tillage, dairy farming or horticulture or used as grazing, meadow or pasture land.
If land is used as a market garden, what happens?
The question of market gardening does not arise on this amendment. It arises on the next amendment. We can consider that separately.
For the moment I shall withdraw the amendment in the hope of bringing forward something else on the Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 5:—
In sub-section (2), line 45, page 4, after the words "market garden," to insert the words "situated in an urban area."
The arguments which I would be inclined to use on this amendment have already been put forward. The case is the same as on the previous amendment. As far as my knowledge goes anyway, with regard to market gardening, market gardening in the country is a part-time occupation. In County Meath, and in a few other districts where market gardening is carried on, it is carried on in conjunction with other types of agricultural activity. My view is that it should be excluded from the operations of this Bill. I move, therefore, that the privilege will apply only in the case of gardens situated in an urban area. I do not know how the Minister is going to meet the amendment, but so far as my knowledge goes, and I have some knowledge in regard to this matter, market gardening in rural areas is carried on in conjunction with other agricultural activities. If there is to be a holiday for men doing market gardening let them have it as well as their neighbours in city areas, but such men should not be held up amongst their fellow - workers in rural areas as individuals enjoying privileges that others of them cannot enjoy. The Minister has intimated that he proposes to deal with some of these cases by exclusion. I should like to hear what he has to say on this amendment.
I do not see how the Minister can maintain any logical distinction between grazing land and woodland, knowing local conditions. What I am afraid of is that local conditions are not understood by many people in high places. When men work a few days in the woods there is no actual difference between work in the woods and on the land. I do not know how this section is going to operate. If a man works a few days in the woods is he going to claim the benefits of the Act? I should like to ask another question in reference to another anomaly that may arise. What about poultry-keeping? Is that mentioned at all? Does land used for poultry-farming come within the definition of agricultural land or is it outside it? That is not mentioned in the Bill.
When the Minister is replying, I should be glad if he would make clear to me a point that does not seem at all clear in relation to the amendment. The Bill says that the expression "agricultural land" means, amongst other things, land used for horticulture, but does not include land used as a market garden or a nursery ground. Would the Minister say what is the distinction between horticulture on the one side and a market garden nursery on the other? The thing seems to be somewhat mixed up.
I do not think so. I must confess that I could not find more lucid terms myself to explain the purpose of the section than those actually contained in the section. I think that if the Senator takes the trouble to examine it he will find that, under various enactments of one kind or another, each term used in the course of a section is given a special significance, and that applied in this particular case. However, the matter before the House is Senator Baxter's amendment which proposes to exclude from the Bill workers employed in a market garden situate in an urban area. As the Bill stands, and as Senators have pointed out, agricultural land does not mean land used as a market garden and, of course, the term "agricultural worker," about which there has been so much discussion, is defined by reference to the person by whom he is employed, and the land on which he works. In order to be an agricultural worker, he must be employed by the owner of agricultural land for work on such land.
In consequence of the phraseology of the sub-section which has been quoted, workers in market gardens are not regarded as agricultural workers for the purposes of the Bill. That is a very narrow distinction. I always had some doubts about it in my own mind. Senator Baxter proposes to confine the benefits of the Bill to workers in market gardens which are situated in urban areas. I do not think we should make that distinction. In my view, we should regard workers in market gardens as being agricultural workers or not. If we decide to regard them as agricultural workers, then they should come under the general definition and be excluded from the Bill, no matter where the market garden is situate. On the other hand, if we decide that there are some special features about the work done in market gardens, which distinguishes it from work on agricultural land then I suggest that we should hold that such workers are not agricultural workers, and consequently should be entitled to the benefits of the Bill.
I do not think that Senator Baxter is quite clear as to the purpose of this section. He spoke of the possibility of a man being employed one day on one form of work and on another day on another form of work. I would remind him that in this paragraph of the section we are only dealing with persons who are wholly or mainly employed upon one form of work. Therefore, it should not, in any individual case, be difficult to determine whether a person is wholly or mainly employed as an agricultural worker, a market gardener, or anything else. I do not think Senators should allow themselves to be confused by the possibility of administrative difficulties arising in individual cases. If difficulties do arise in individual cases, we will have to find a way of resolving them. I am prepared to accept the guidance of the Seanad on the question as to whether we should regard workers in market gardens as agricultural workers or not. If Senators think that we should so regard them; that there is such a close similarity between the work they do, that, therefore, they should be subject to the same treatment, then I am prepared to amend the Bill to exclude such workers from its provisions whether they work in urban areas or in rural areas. If, on the other hand, the Seanad is of opinion that the work done in a market garden is of a different character to that done by the ordinary agricultural worker, and that it is work that should be subject to a different type of regulation, then I am prepared to leave the Bill as it stands. In its present form the Bill secures to workers in market gardens the full privileges which all classes of industrial and non-industrial workers have secured. I am not, however, prepared to accept the Senator's amendment. I think that we should have regard only to the form of the employment. It is for the Seanad to decide whether we should keep within or without the definition of "agricultural worker," those who are employed in market gardens.
I think the Minister would be well advised to treat market gardeners, nursery workers, woodland workers and all such as agricultural workers.
The Minister has stated that he is disposed to leave it to the House to decide whether market gardeners be included or excluded from the scope of the Bill. If the House decides to exclude them, he says that he is prepared to amend the Bill. I put it to the Minister that a much stronger case can be made for excluding woodland workers. I think that anybody who knows what the conditions in the country are will agree with me on that.
I think the Minister should not consider changing the section. Market gardening, in my opinion, is more closely allied to an industrial occupation than it is to agriculture as such. Usually these market gardens are situated close to large urban centres. The work performed in them is not of that broad character one associates with agriculture as a whole. A good deal of it is concerned with bringing vegetables to the nearest town. I can find no close alliance between the type of work done within those walled gardens and the work which is ordinarily called agricultural work. I was amused when I heard some Senators, who put themselves forward here as authorities on agriculture, speak of market gardening as if it were closely allied with agriculture. It seems to me that there is no comparison whatever between the two classes of work. You have amenities, which are largely domestic gardens, attached to fairly large residences occupied by wealthy people, so that if a change is made as regards a market garden a similar change will have to be made as regards those amenities. Senators, I think, will find that very frequently these amenities perform a dual function. First of all, they provide vegetables for the use of the owner-occupiers, and the surplus is taken to the nearest town and disposed of commercially.
Market gardeners in and around cities like Dublin, Cork and Limerick are engaged on work which bears no comparison whatever with agricultural work, properly speaking. There is quite a good case to be made for market gardeners and their assistants benefiting by the provision of this section, but if these benefits cannot be extended to them at present, presumably they will be extended at a later date. Market gardening and work in nurseries are very closely allied. In regard to what Senator Keane said about the caring of woodlands and that type of work, that should be distinguished from work which farmers ordinarily perform in the fields. The benefits extended to workers in market gardens should be continued, and I hope the Minister will not make any change. If he does make any change later, there should be a more detailed inquiry into the work done by market gardeners and those who provide vegetables for cities and towns. Such an inquiry would show that that work is closely related to what is called industrial work, and would distinguish it clearly from agricultural work.
The Senator stated that there is a wide distinction between market gardening and agricultural work. I think he will admit that there is a distinction between agricultural work and horticulture, but while horticulture is excluded, market gardening is included, so that the whole thing is utterly illogical.
I do not know how much Senator Lynch knows about market gardening or about agriculture generally. From what I know of market gardening there will not be much of it in the urban centres and cities unless the work is done by men who dig and plough the land. If the owner of a market garden was asked whether he preferred an industrial worker or a farm labourer, his answer would be a ready one. The work done in market gardens is the same kind of work that is done in the fields for the production of potatoes or any other root crop. The soil has to be handled and the crop has to be marketed. If an industrial worker was sent out to tackle horses and to bring a load of cabbage to market, you can imagine how some industrial workers would go about the work. When they had the carts empty, if they had to fill them with manure, what would happen? That is the sort of work market gardeners are doing everywhere. It is purely agricultural and cannot be separated from that class of work. It is "tosh" to say that it is industrial work. We are never going to get anywhere with a line of reasoning to the contrary. Senator Lynch will go further when trying to get holidays for all workers, by accepting the commonsense point of view. If I had the Senator's point of view, I would have had amendments down to include all agricultural workers within the scope of the Bill. I am wondering why we have had no such amendments. If we are not prepared to accept market gardeners as agricultural workers I do not know how any inspector is going to define "agricultural workers" when the point arises. I am glad the Minister appreciates the difficulties of those who are trying to get some sense of proportion with regard to legislation, where work of a similar character is being done by two types of people, supposed to be engaged in different types of occupation. If the Minister says that he is prepared to exclude these people from the Bill, I believe he will be doing the right thing. That will not prevent further legislation being enacted later, to give privileges to workers and others engaged in similar types of occupation, who ought to be getting them now if there was equity.
I should like to see everybody getting holidays. Market gardeners and agricultural workers are as much entitled to holidays as town workers. It is very invidious to select certain classes and to say that they will have to get holidays, while other classes doing practically the same work are not to be entitled to holidays. A considerable amount of market gardening is carried on, but men who are working on one farm are said to be doing market garden work, while others doing the same class of work on another farm are not. The man who sends produce to the Dublin market and sells it in small quantities is termed a market gardener, but the man who produces acres of potatoes is not a market gardener. For that reason I think the amendment should be accepted.
There are other things dealt with in this section that I intended to leave over until the section was being discussed, but I think I can make some reference to them with relevancy at this stage. As to the definition of "agricultural land," horticulture is included in that, but I find that in sub-section (2) the definition of an agricultural worker is a person who is employed by the owner of agricultural land. Why the owner of agricultural land? Does the Minister not know that in and around towns, whether on market gardens or on agricultural work, landlords with very large estates will sub-let some of the land to people who will use it for the cultivation of flowers? Will that mean that these people will not be regarded as agricultural labourers? The section seems to me to give rise to a good deal of anomalies. It would be very hard to say who is the owner of a good deal of the land of Eire. I do not know whether it is the Land Commission or annuitants are the owners. If "owner" means anything, it means something that is the absolute property and in the possession of a person who claims to own it. Can that be said in reference to a good deal of the land in Eire? I cannot understand why that definition should be allowed to go, that a man must be employed by the owner of agricultural land. At the risk of being irrelevant, I refer the Minister to the definition given in the Valuation Bill, where market gardening is included as agricultural land. This is a point that the Minister should look into. It is a very difficult section for the Minister to handle, or for anyone to say definitely what is and what is not agricultural land, or what is and what is not an agricultural labourer. If a man is engaged in the cultivation of flowers, must he be employed by the owner of a patch of land before he is an agricultural worker? The Minister ought to examine these things and see what can be done, as I think they are anomalies.
I have not had any clear guidance from Senators as to whether the majority view is in favour of the exclusion or the inclusion of market garden workers. I decided originally in favour of bringing the workers employed in market gardens within the Bill, although I recognised that it was a very difficult decision to make, as agricultural workers were being excluded. But, on reconsideration, my mind swung in favour of excluding market garden workers because of the similarity between their employment and the ordinary employment of an agricultural worker. At the moment I am rather disposed to include as agricultural workers, and therefore to exclude from the Bill, market garden workers, but I would not propose to do so on my own initiative unless there was a fairly strong feeling generally amongst members of the Seanad that that was the right thing to do, because I am not so completely satisfied in my own mind that it is the right thing to do. But, if there was any indication that the majority of the Seanad favoured the exclusion of market garden workers, then I am prepared to accept their point of view. If, on the other hand, the matter is not pressed, I would not propose to amend the Bill myself.
The other matters which were raised in the course of the discussion do not apply to the amendment, and I do not know that I should refer to them now. I presume that the term "owner of agricultural land" covers the lessee of agricultural land. I will have that point examined, but I feel certain that the term owner is adequate in the section.
The Minister will note that the word "user" is used.
"User" there has no relation to a person. It is the use to which the land is put.
Would not "owner or occupier" make it absolutely watertight?
Yes. It is a purely drafting point and I shall bring it to the attention of the official draftsman. Personally, I must confess that all these various terms—tillage, dairy farming, horticulture, grazing, meadow or pasture land, market gardening, nurserymen, etc.—do not convey any very clear pictures to my mind, not being a farmer and not having been a farmer. But I feel fairly certain, although I will have to verify it, that each of them has a separate significance. We can look into the matter and see if there is any contradiction in the section, which includes horticulture and excludes a nursery or market garden.
This will come up again on Report and could be considered then. To my mind, from a knowledge of market gardening and agriculture in the vicinity of Dublin, they are interchangeable. A farmer is both an agriculturist and a market gardener. Of course it will probably become an urban area. But there is no line of demarcation between market gardening and agriculture. Certainly what Senator Counihan pointed out would arise—that you would have one man claiming to be included and another man claiming to be excluded because he was, to a greater or lesser extent, a market gardener. On the whole I am in favour of the exclusion of market gardening.
I have an open mind with regard to the main point. I had for a number of years what is commonly called a market garden and I was foolish enough to give a half-holiday and also to give seven days' annual holiday for years. But I certainly think, with great respect to the Minister's reply to my question, that as the section stands he will certainly have to amend it. I find that the concise Oxford Dictionary describes horticulture as the art of garden cultivation. We find under this section that garden cultivation is exempt if the land is used for that purpose. On the other hand, we find that for market gardening it is not exempt. The distinction now comes on the word "market." I have not had time to look that up. I suggest that, as it stands, it is almost impossible to interpret and that until some case came before the courts we would not know whether the first part or the second part of the section really applied to land used for gardening. I suggest that this should be left over for Report and that there should be a definite amendment brought in on which, if necessary, the House could divide, if the Minister wants the opinion of the House as to whether market gardening generally should be exempt, and that the amendment should not be pressed now.
I am afraid that it is the word "gardening" is the trouble. There is the producing of food from an agricultural holding for the purpose of selling it in the market. It is the terminology that is applied to it, more in the vicinity of Dublin than anywhere else, which matters. It is the use of the words "market gardening" which is the difficulty. There are farms in the vicinity of the city used to supply food products to the city. The dictionary definition of horticulture as cultivating a garden does not apply certainly to what we interpret as market gardening, namely, producing food for the purpose of selling it in the city. The dictionary does not bring us any further than our commonsense in trying to solve that problem. Perhaps, the Minister would, with his various officials and advisers, try to cover this matter on the Report Stage.
In County Dublin, at all events, this question is rather mixed up. In the old days in Dublin there were certain people who did market gardening exclusively, such as Alderman Flanagan, the Beggs and other people. They have now gone out of business because the Dublin Corporation, in order to meet the housing requirements of the citizens, have taken over all this land which was formerly used as market gardens. Therefore, market gardening is now carried out largely by those who were formerly engaged in agriculture. Senator Counihan said that a number of people in Rush and other places in his locality are engaged in market gardening. In places nearer to the city, such as Clondalkin, a number of farmers who formerly did agricultural work now partly engage in the production of vegetables and other things as market gardeners. Therefore, the question is undoubtedly a very complicated one and very mixed up. A number of Senators have found it very hard to differentiate between what is exclusively a market gardener and what is an agriculturist. I would be inclined to agree with the suggestion of Senator O'Donovan that the Minister in his own able way should take the opportunity of going further into the matter before it is finally dealt with.
My excuse for intervening a second time is that the Minister said that he had not a very clear view of what some terms meant. Previously I suggested that market gardeners, nursery workers, and woodland workers should be excluded and treated as agricultural workers. I live in a very remote agricultural district where market gardening is carried on. There is also a considerable amount of nursery work carried on and a good deal of woodland work. I fail to see any logical reason why nursery workers, woodland workers or market gardeners should be treated differently from the agricultural workers in that area. They breathe the same air, do similar work, but get better pay. If anybody deserves holidays, it is the agricultural worker.
In view of what the Minister has said, I ask leave to withdraw the amendment. I presume the Minister will look into the whole section.
Amendment, by leave, withdrawn.
Question proposed: "That Section 2 stand part of the Bill."
Would the Minister develop the definition of "full day's pay"? It is set out as meaning the amount payable to a worker in respect of a normal full working day. There are casual workers who earn a very large sum of money one day and very little the next day. On that general definition it would be impossible to assess what a normal day's pay would be. I suggest to the Minister that the only logical way of dealing with the matter is to go arithmetically into the matter and ascertain what the earnings for the previous month or fortnight were and divide that by the number of days in the period. So far as one can see, it will be impossible to assess a full day's pay in the terms of the section if there is a dispute.
I suggest to the Minister that some further definition of "domestic worker" is necessary. It seems to me that any person entitled to a free room or to a free house, no matter what sort of work they do, provided they are not industrial workers, will come within the definition. A gamekeeper entitled to a free house would, under the definition, become a domestic worker. The provisions for domestic workers in this Bill are quite different—and properly so—from those for other workers. Unless I have completely misunderstood the position, this definition will tie us up in a knot.
Senator Hayes asked if the definition included an agricultural worker. Clearly, it does not but stablemen, grooms, gamekeepers and others who do not come within the category of industrial workers and who are paid partly by way of accommodation would come within the definition. That is not satisfactory. The Bill provides for the calculation of holidays for those workers in a different way from that in which it provides for calculation of holidays of other workers and the arrangement with regard to public holidays is also different. I did not put down an amendment because I was not clear as to what the Minister intended. I was going to move an amendment with regard to the wording of provision (c), but I thought it better to draw the Minister's attention to the matter and to ask him if it was intended that "domestic worker" should include every type of worker other than an industrial worker who happens to be partly paid by the provision of a room or a free house.
I do not know what the difficulty of Senator Sir John Keane is. The definition of "full day's pay" is inserted to make quite clear that it will not be a half-day's pay or anything less than the worker would get under his contract of service in respect of a normal, full working day. I do not see that any difficulty will arise or that it is necessary to undertake the mathematical calculation the Senator had in mind. I do not know why he thinks it may be necessary to make that calculation and I do not see where the difficulty will arise in connection with the definition. A worker employed casually as a dock labourer for a particular job, a man taken on at the beginning of the job and discharged when it is finished, will obviously not be affected by this definition at all. We are dealing here with people employed under a contract of service, and in respect of them I do not think that any real difficulty will arise in determining the amount payable in respect of a normal working day—a full day's pay.
Neither do I understand why Senator Douglas thinks a difficulty will arise by reason of the fact that stablemen or grooms with free lodging will be classed as "domestic workers." I think they must be classed as domestic workers for the purpose of this Bill, because the problem which arose and which had to be dealt with applies in their case as in the more ordinary case of the domestic worker who resides in his or her employer's household. The difficulty that occasioned this division of workers to whom the Bill applies into two classes —domestic and non-domestic—was due solely to the fact that part of the remuneration was given in the form of lodging or board and lodging. If the giving of a holiday involved the deprivation of the worker of that board or board and lodging, it might cause real hardship, and the holiday might be of no benefit to the worker, but rather a source of loss. Consequently, where a worker got, as part of his remuneration, board and lodging or board or lodging it was necessary to make special provision for him, and that is embodied in the Bill. That provision is intended to apply just as definitely to the case of the non-industrial worker who gets free lodging, such as a stableman, a groom or a chauffeur, as to the case of the domestic servant, as the term is more generally understood.
The term "domestic worker" may itself be the source of the confusion. It only applies for the purpose of this Bill. So far as I am concerned, any term will do provided it distinguishes between those workers who get all they earn in cash and those who get paid partly in cash and partly in board and lodging. In the case of the latter class of workers, special provisions have had to be made and these are in the Bill and are designed to deal with the case of such workers, whether domestic workers in the narrow sense or workers merely classed as domestic workers for the purpose of convenience under this Bill.
Take the case of a shop. Certain classes of workers in shops are dealt with under the Shops Bill. Certain other classes who work in or about a shop are not dealt with under that Bill. You may have a messenger working out of doors—I know of one case—who is entitled to lodging, not in the house of the employer but elsewhere. If a room or house forms part of the pay of a worker, then he becomes a domestic worker under this definition. So far as the Minister is anxious to provide that where these workers get a holiday they should get some extra pay to make up for the board or lodging I accept his argument, but I do not accept it in regard to the application of the whole of Section 12. If he were to put in a provision that any type of worker who was paid by means of lodging or board and lodging or either was to get extra payment, I should say that that would be fair and just. I certainly do not see, however, why he should class them all as domestic workers, because domestic workers are really dealt with in a substantially different way in the Bill.
I can see that a good deal of responsibility will be thrown on the Minister in deciding to whom this Bill applies.
The Minister does not decide. The courts decide.
The courts decide? Well, I think something ought to be done to make it easier for people to take the matter to the courts than it is at present. We know that in other legislation, where the Minister decided that certain provisions of an Act did not apply to certain classes of people, it was found very difficult by the persons concerned, because of lack of means or for other reasons, to take these matters to the courts. I think the Minister should re-examine that section with a view to seeing that, where there may be disputes as to the provisions of this measure, it should be made easy for the people concerned to get a decision.
With regard to this whole question of the interpretation of the section, and what classes are to be included or excluded, I think it is a matter of great difficulty, and I suggest that the Minister is a very good friend to the lawyers, because this whole thing is obviously bristling with difficulties. That is only the first view of the matter, because when you look at the section it is not going to operate at all. The Minister is taking arbitrary power to exclude or include any class he likes, and from the point of view of democratic government, I suggest that it is mere humbug. The Minister, by an order, can simply throw out anybody or take in anybody.
Mr. Hayes
The section says that
... the Minister may, whenever and so often as he thinks fit, by order declare that any particular class, defined in such manner and by reference to such things as the Minister thinks proper, of employed persons shall be an excluded class.
Then, the Minister certainly can exclude. He has power to exclude anybody he likes; so, really, the protection of the courts is nothing in practice. When any awkward situation arises, the Minister just puts in an order excluding a class. I suggest that it is worse than the Land Commission, because if there is an adverse decision, the Minister simply makes an order. There is no protection here, and, as a parliamentary document, the Bill affords no protection. The matter is simply handed over to the Minister to operate it.
As we are on the question of definitions, perhaps the Minister would tell us what is meant exactly by the last paragraph on page 3. That is paragraph (n) (ii). It is not clear to me what is meant there and the mathematics seem to be rather difficult for an ordinary person.
The last paragraph on page 3 is intended to exclude workers employed upon rotational relief schemes. Senator Hogan's point is one, I think, that we might consider, although I do not see any way out of it. Either difficulties of definition or questions concerning the applicability of the Act to individuals will be decided by the courts or by somebody else. There is, I take it, in Senator Hogan's mind the idea that a decision might be made by the Minister as in the case of the Unemployment Insurance Act?
I thought of that, but I do not think it is quite feasible in this particular case. The State has not got the same responsibility for enforcement in the case of this legislation as in the case of the Unemployment Insurance Act. That Act is a State scheme. It is compulsory on every individual to belong to it, and, consequently, when any question of the applicability of that scheme to an individual arises, there must be a decision given. In this particular case, however, the matter of enforcement is left very largely to the individuals themselves to proceed through the courts and get for themselves the rights which the law gives them. The bringing in of the Minister would be undesirable and might bring him in in a way that is not intended and make him responsible for supervision of employment conditions generally for the purpose of seeing that the provisions of the Act are observed. It is not intended to do that, however, but rather that the individual should assert his own rights. We merely define his rights, and he asserts them and gets recognition of his rights by his own action in the courts. It would be a further step in the wrong direction, to which we had reference by Senator Sir John Keane. The section to which Senator Sir John Keane takes exception is one that I think is very necessary and desirable. Legislation of this kind is, in a sense, experimental. In legislation of this kind hitherto we have always found that unforeseen difficulties arose. Some class of persons of whom nobody thought, in respect of whom the ordinary provisions of the measure concerned did not apply, has been discovered, and a clause which gives power to exclude such persons from the scope of such a measure is necessary if a continuous stream of amending Bills is to be avoided. There might be some ground if we were extending this, but the power of exclusion is merely a safety valve to ensure that, if a difficulty arises because of some circumstance which we do not now anticipate, the matter can be dealt with at once and the status quo restored until some new proposals for legislation are submitted to the Oireachtas. Without a safety clause of that kind we would be taking the risk of landing ourselves in difficulties. That has been our experience both under the Conditions of Employment Act of 1936 and the Shops Act of last year. From the very start of the operation of these measures the powers given by corresponding sections had to be availed of in respect of particular classes of persons if the Acts were to be worked at all. There is one safeguard with regard to the use of the powers given to the Minister under that section, and that is that it will always be unpopular for the Minister to do so. The class of persons excluded by his order are bound to protest, and the Senator may be quite certain that no Minister will use these powers without very grave grounds for them.
Does the Minister say that he has only power to exclude?
Yes, but he can put back in again any class he has excluded.
Well, take sub-section (2), relating to agricultural workers. According to that sub-section the Minister can include by suggesting that any class he wishes are not agricultural workers and are, therefore, included.
That is correct in that sense, but it relates only to agricultural workers.
Well, I think the Minister has powers both ways. I ask him to consider seriously, in any case, whether it would be best in the interests not only of justice but of administration to go the whole hog, and, on the Report Stage, bring in the agricultural workers. There are so many burdens on agriculture at the moment that one more will not make much difference. It will be better to do the job entirely now and bring everybody in, because it is bound to come sooner or later.
Perhaps, between this and the Report Stage, the Senator will find out what support he is likely to get for his proposal.
Oh, I do not think there would be much opposition to it. I would support it anyhow.
Sections 2, 3 and 4 put and agreed to.
SECTION 5.
(2) Where—
(a) the ownership of any business, whether carried on for profit or gain or not, is transferred by act of the parties or by operation of law during the currency of an employment year of any worker who immediately before such transfer was employed by the person carrying on such business, and
(b) such worker continues after such transfer to be employed by the person (in this sub-section referred to as the new employer) to whom such ownership is transferred, the following provisions shall have effect, that is to say:—
(i) such worker shall, for the purposes of this Act (including sub-section (1) of this section), be deemed to have been in the employment of the new employer as on and from the beginning of such employment year;
I move amendment No. 6 standing in the name of Senator Quirke.
In sub-section (2), page 6, line 33, to insert after the word "section" but within the brackets the following "but excluding Section 9 (which relates to rights of non-domestic workers in respect of public holidays) of this Act in respect of any public holidays previous to such transfer."
I would like to know what the amendment is about.
It is a drafting amendment.
Yes, in a sense it is a drafting amendment. Sub-section (2) of Section 5 deals with the case of a business that has been transferred. The purpose of the amendment is so to limit, in such circumstances, the new owner's liability in respect to a transferred worker's annual or semi-annual leave. The new employer will not be liable in respect of a public holiday which occurred in that particular year during which the worker was in the employment of the previous owner. I think Senator Douglas will agree that it would not be equitable to require the new owner to be responsible for the former owner's default or for what the former owner should have done; he should not be liable to prosecution for that.
Under Section 9, which is to be excluded, there are certain things which come to the new employer with regard to holidays which come in under Section 7. I do not quite grasp that point. By excluding Section 9 you may deprive the new employer of something in Section 7. Is not that so?
No. The section provides for the circumstances in which a business is transferred to a new owner. The worker had, as against a new owner, the rights he had against the old owner. He could exercise these rights against the new owner if the old owner had failed to give relief under the Act; the worker could institute proceedings against the new owner for the default committed by the old owner. This is to provide that the new owner shall not be responsible for the default of his predecessor.
I am not quite clear about it; I would like to look further into the section before the Report Stage.
Amendment agreed to.
Section 5, as amended, agreed to.
SECTION 6.
A person shall be deemed, for the purposes of this Act, to allow a worker employed by him a whole holiday on a particular day if, but only if, such person does not permit such worker to do on that day any work for him.
I must say I felt inclined to move the deletion of this section. If it suits a man and his employer that the man should do a day's work and get a day's pay for it, I do not understand why liberty should not be permitted to them to do so.
The Senator knows that if you legislated to that effect you would leave a loophole which it would be impossible to detect. The employer would intimidate the worker into surrendering his rights particularly in periods where there is unemployment and competition for work. We must make it illegal for both.
This may be all right in highly organised businesses but I am thinking of quite a different set of circumstances. In the country you get a sort of man who does a bit of everything, cleans the car, does a bit of gardening, stokes the boiler, cleans the boots and so on. By this section you prevent that man from coming into his employer's place in the morning. Indeed, you have got to prevent him and you are forced to do so if you are going to be logical. There is an obligation placed on the employer to forbid that man working or coming into his place. Things are not worked in that way in the country. That man may have been in your employment for 30 years and are you going to tell him "you are not going to come here to-day; the boiler will not be stoked, the boots are not to be cleaned"? That is what the employer has to say to the man. The man may come only for an hour or two. Is it the intention of the Bill that such a man shall not put his foot inside his employer's premises on that day?
Somebody will have to say to him "those fellows up in Dublin say that you are entitled to a holiday and that you must take it."
Probably the Minister does not know all that goes on in the country.
It is well for him he does not.
It is difficult to say how this Bill is going to work. I presume that, as under other Acts, we will have inspectors coming to our premises. They will come, say, to Senator Sir John Keane's and find this man who does these various jobs about the place. If the man is there on that particular day the Senator is going to be prosecuted. I was told a story a couple of weeks ago, while discussing this Bill with a number of farmers including prominent supporters of the Government. Peculiarities arising out of other legislation were mentioned. An inspector went to a farmer's place where he found four men. He inquired about their wages and he was told what the wages were. The inspector said: "That will not do." Then the farmer said: "That is all right, I will give A so much, B so much and C so much per week and you can take D away with you." The inspector left and the man went away with him; but the inspector had to clear away very quickly because he would have been seriously maltreated by the man who lost his job as a consequence of the Minister's legislation. I do not understand the Minister when he tells us that the conditions of employment to-day are such between workers in relation to their employers that the workers are subject to dismissal. The Minister is wrong when he tells us that the industrialist has the power in his hands to intimidate a worker. That is not so.
I am open to correction, but my opinion is that the position of workers in this country to-day is such that they cannot be subjected to such intimidation on the part of any employer. Their organisation is very strong; they are very independent; they have their rights, and they know their rights. I cannot understand the Minister when he argues that it is possible for employers to intimidate the workers and deny them the holidays to which they are entitled. I must say that that is not true of any industry with the conditions of which I am acquainted. On the other hand, it is quite true that there may be many cases where it will suit both the employer and the employee to give the employee an extra day's wages, and let him stay and do a particular type of work even on a day when he is entitled to a holiday. I believe it is a bad thing to have all this restriction of liberty. If the Minister were to argue that there is justification for the inclusion of the section on the grounds that it is going to provide an additional day's work for somebody else, that would be another point of view; it is a point of view I would not accept. I am quite convinced that that type of section really creates artificial barriers between our people, when they ought to treat one another with humanity rather than because the law has demanded this unreasonable and in my view unnatural thing.
I think possibly the Senator has misunderstood the section, because it does not really deal with the question of giving the worker a day's pay, although that, I think, in certain circumstances, is provided further on in the Act. I should like to ask the Minister whether it is really necessary to put this into the Act, particularly as it is dealing with domestic workers. Would it not be better to leave it to the courts to give a reasonable definition as to whether holidays are given or not?
I was asked a question by a lady as to whether if the maid gave her a cup of tea in the morning before going out —in most cases it is a necessary precaution even to getting a holiday—would that be doing work? Technically, I think it would. It is all very well to say to a maid who is in the habit of bringing up a cup of tea: "Do not bring it this morning," but in practice it will not work. You make it a day of 24 hours, but in practice it will not happen. It reminds me of an occasion many years ago, when I shared a room with a gentleman who happened to have very strong views with regard to the keeping of the Sabbath. He had cleaned one of his shoes when 12 o'clock struck on Saturday night, and he would not clean the other. That will be the effect of the strict interpretation of that section.
It is necessary that we should put somewhere in this Bill a definition of the phrase "allow a whole holiday," and no other definition than the one there is possible. I think when the Conditions of Employment Act, 1936, was before the Dáil there was unanimity amongst both the representatives of Labour and the representatives of employers there that not merely should we prevent an employer from employing a man upon a day on which he was to get a holiday, but that we should go further and prevent the man from working either for that employer or any other, the argument being quite properly advanced that the purpose of the Bill was to get holidays for the workers, and that they should not be allowed to do otherwise than take the holiday as a result of the enactment of the measure. I know there will be cases of individual workers who would rather work and get double pay. Not merely the employers but the trade union representatives in the Dáil knew that human nature is human nature, here as well as every place else, and that the desire to get something more than somebody else would result in workers going beyond their ordinary employment, and taking casual jobs for the purpose of getting more money, and that, in fact, when certain workers were on holidays from one employer they were found working with another. It was to prevent that that very stringent provisions were put into the 1936 Act.
Some such provision has to be inserted here. There will be some workers who will object to it. I am quite certain that the slaves in the Southern half of the United States were strongly opposed to the repeal of the slavery laws there, and fought with the Southern armies against the legions of the North who were trying to liberate them, because they thought they would starve——
You are not liberating slaves here.
That is a very simple account of the American Civil War.
We had Senator Baxter's statement about the agricultural worker who chased the inspector from his employer's premises because that inspector insisted upon the fulfilment of the Act of Parliament which secured the worker a minimum wage, and consequently lost him his employment. What Senator Baxter said was said by thousands of slave owners in the United States, who told the slaves that if they were liberated they would lose their jobs and probably starve. There is the story of the British Minister who passed an Act forbidding the employment of women in coal mines. When he visited the coal mines he was chased out of them by the women who had lost their jobs. Neither Senator Baxter nor anybody else would come in here with a private Bill to repeal that measure and provide again for the employment of women workers in coal mines. The individual who chased that inspector was not objecting to taking the minimum wage which the law prescribed——
If the ex-slaves were not to work at picking cotton for wages there would have been grounds for complaint.
The individual who chased the inspector was not objecting——
That rules out your analogy of the civil war. It is a faulty analogy.
I think the mentality which produced one set of conditions is capable of producing them again in modern form.
John Mitchel would have been on Senator Baxter's side if the Senator does represent that mentality.
He is not here to answer for himself anyway.
In any event, I think we must legislate here that a worker does not get a holiday unless he does no work on the day on which he is supposed to get the holiday.
Question put and agreed to.
Sections 7 and 8 agreed to.
SECTION 9.
Amendment No. 7 standing in my name is really consequential to a later amendment, and I think it would be better if you, Sir, would allow it to be postponed, and taken after Senator Sir John Keane's amendment. It would not be moved at all unless amendment No. 9 were moved. Therefore it would be absurd to try and debate it by itself.
Leas-Chathaoirleach
I move amendment No. 8:—
Before sub-section (2), to insert a new sub-section as follows:—
(2) Notwithstanding anything in this Act where the wage of a non-domestic worker is calculated by the week or by a period longer than a week and the person who employs such worker pays such worker a full week's wage for any week and such worker does no work on any public holiday which falls within such week such person shall be deemed to have allowed such worker a whole holiday on such public holiday and to have paid such worker for such public holiday.
I think this matter is fairly clear. It is not on the same lines as the rather vague and indeterminate question which we have been discussing heretofore. If the Bill passes in its present form a five-day worker would have to be paid an extra day's pay if the holiday comes on a Saturday, although he receives his full week's wages. In some trades a five-day week is worked, and a full week's pay is paid.
If the holiday falls on a Saturday an extra day has to be paid for under the Bill as it is drawn. In the case of the five and a half day worker, only an extra half day has got to be paid for. You have the anomaly that the five and a half day worker is going to receive a half day's pay and the five day worker will receive the full day's pay, whereas in both cases they are paid their full week's wages. There can be no equity in that. There is no logical basis on which that position can be maintained. The object of the Bill is not to give extra pay for holidays, but merely to give pay for holidays. If you pay a man for a full week's work, you have paid him, and if there is a holiday in the week he is paid for it. Under this Bill you are going to pay him over and above that. The object of the amendment is to prevent that.
The week is defined by the number of hours worked and where there is an agreement with the trade union for a 44-hour week a man may work that number of hours in five or five and a half days, as against another man who may be employed for the six days. The man works the full number of hours which ordinarily constitute the week's work. Therefore, in one case a man has worked the holiday without pay, whereas the other man gets the day's pay for the holiday without having worked it.
They both receive a full week's wages.
I submit that the man working the 44-hour week in five or five and a half days is working the holiday as compared with the man who takes six days to work his 44 hours. The employer who has an agreement with his men to work 44 hours in five or five and a half days has an advantage as compared with the employer of workers who work over a period of six days. Can you follow that? I do not see any reason why Senators should laugh.
The thing is very clear to me, but perhaps it is that I am superior to most Senators. Is it not reasonable to say that where an employer is obliged to pay for a holiday, it is immaterial whether his men work the 44 hours, which constitute the week, in five or five and a half days? Is that not reasonable and clear? In other words, the man who has six days in which to work the 44 hours is going to have an advantage over the man who works his week in five or five and a half days.
It is still not very clear.
I am sorry I have failed to make the point clear, but it is as clear to me as the light that is over my head. There is no disadvantage in a man paying for a holiday whether his staff work for five or five and a half days as against a man who has to pay for a holiday because the workmen take six days to work 44 hours.
The point is that, where a holiday comes on a working day, the worker gets no extra pay; it is covered by the weekly payment. If it happens to come on his non-working day, which is a Saturday, he is going to get an extra day's pay over and above his weekly wage.
But he has worked the same number of hours—can you follow that? He has worked the number of hours, 44, which ordinarily constitute a week's work. The other man has worked only 36 hours, because he gets paid for the holiday.
I had hoped that Senator Foran would convince Senator Sir John Keane, or vice versa, but I think we might give it up as a bad job. I have considerable sympathy with Senator Foran in his efforts to make clear a matter which is not very clear to some people. I think I do understand what he is driving at, though I do not fully agree with him. He is assuming that a five-day and a six-day worker always work the same number of hours in the week. I think I can assure him that is not the case. He says that under the amendment the six-day worker would have an advantage over the five-day worker. The Bill gives the five-day worker an advantage over the six-day worker, because he gets extra pay in the week in which the bank holiday comes on his non-working day, whereas the six-day worker does not get any extra pay.
I would support some such amendment as this, but for a somewhat different reason. I believe it is exceedingly unsatisfactory to have different classes of people getting different rates for doing practically the same work and in the same type of employment. Let us take the shops, for instance. The number of people employed in shops is very large, possibly it is one of the largest classes in the country. They were partly dealt with under the Shops Act. Workers who do work outside the shops were not dealt with under that Act, but they are dealt with under this. The usual shop half-holiday is on Wednesday or Saturday. In the country it is very often on Thursday. There is always a half-holiday in the week. If St. Patrick's Day, Christmas Day or St. Stephen's Day comes on that half-holiday, this particular class of outdoor workers have to be paid an extra half-day's wages, although under the Shops Act none of the others have it.
It is going to be difficult, as time goes on, to distinguish between the two types of workers. Some of us experienced difficulty in the past and most sane shopkeepers gave the same conditions to all their employees without waiting for this legislation. I think you will find that most shopkeepers gave that when the last Act was passed. Now you have a different set of conditions appearing. I suggest, if the Minister will not accept an amendment on the lines of Senator Sir John Keane's or mine, that he might provide that persons employed in or about a shop should come within the Shops Act so that you will have some sort of uniformity.
I am not going to attempt at this stage to read statistics, but it has been carefully worked out by some persons in the Chamber of Commerce that over a period of five years an amendment similar to that of Senator Sir John Keane's would work out equitably as between the five- and six-day workers. Senator Foran has pleaded for the principle that the five-day worker in a certain week shall be allowed to work and get two days' pay extra; the six-day worker will not be allowed to work, but he will get his holiday.
The argument is that the five-day worker works nine hours each day, 45 hours in all, and the six-day worker works 7½ hours each day. The holiday comes on the sixth day. The five-day worker has worked the 45 hours and he has, therefore, worked the equivalent of the day which is a holiday. Senator Foran shakes his head and says he has to get two days' pay. In effect, that is what it amounts to. The other bank holiday or public holiday came on the following day.
I understood, as the Minister introduced the Bill, that it was uniform with previous legislation and it would have worked very much the same as the Shops Act. I think I am correct in stating that. The principle of this Bill is to provide, to my mind at any rate, one week's annual leave with full pay and seven holidays with full pay. In other words, what it means is that a person shall have his fortnight and shall not lose anything whatever in his remuneration. I am in favour of any provision that will meet that case and provide for that but, as it stands now, it is really providing that certain classes of workers on certain occasions will have extra pay rather than getting an actual holiday from their work. I think an amendment on the lines of Senator Sir John Keane's would go a long way, if not entirely, to meet the case. I prefer it to my own amendment which comes later.
I have some sympathy with the point of view expressed by Senator Sir John Keane and Senator Douglas, but I fear there are practical difficulties, to which they have not adverted at all. It is true that when we first brought to the Dáil proposals for legislation relating to public holidays our idea was to safeguard workers against loss of pay by reason of the fact that a public holiday occurred. In a large number of occupations that was the position, as Senators know. A public holiday meant for workers merely a day upon which they could not work and, consequently, a day in respect of which they could not be paid. We set out to ensure that such workers getting their holidays would also get in respect of each holiday the pay they would have received if the day had been a working day and they had been allowed to work on it. So far, so good.
In practice, the application of that principle was complicated by reason of the fact that some workers are ordinarily employed for six days in the week, some are ordinarily employed for five days in the week and some workers, by reason of depressed conditions in their industries or other temporary circumstances, are employed normally only for four or perhaps even three days in the week and in respect of them the problem immediately arose as to what happened when the public holiday fell upon a day upon which they would not work in any event. As the 1936 Act was framed and as it was brought into operation, we held, and I think many employers accepted the point of view, that they were obliged to pay their workers a day's pay for a public holiday even if the public holiday fell upon a non-working day. We tried to regularise that position when introducing this Bill originally by restoring the original idea, the idea of protecting workers against loss by reason of the advent of a public holiday, but objection was taken in the Dáil, and so many arguments were used against this proposal and so many practical difficulties arose in the application of the new proposal that I decided to change the Bill again and, as it now stands, a worker is entitled to be paid in respect of a public holiday even if that public holiday falls upon a non-working day. That is what this amendment is directed against. It has been a matter which caused considerable discussion in the Dáil, considerable discussion in the Chambers of Commerce throughout the country and the submission of a number of representations to me by various employers' organisations. I decided, however, that whatever objection there may be in principle to the Bill as it stands, there are practical considerations which make it difficult, if not impossible, to change it. I do not agree, however, that the case is as clear cut as Senator Douglas submitted. There is a point in the argument which Senator Foran put forward that as between the five-day week worker and the six-day week worker, when a holiday falls upon a Saturday, the five-day week worker may get an extra day's pay but he has in fact in that week done what the six-day week worker has not done and that is a full week's work. The six-day week worker will get only the normal week's wages but has done less than the normal week's work.
He has in the week, but not in the year.
I will not accept that either.
I will prove that afterwards.
If you work on the basis of a year you will find that the equities are not as clear as are suggested. Of course, this position will only arise on a rare occasion. It is not very frequently that a public holiday falls upon a Saturday.
I think every second year, if you count the half-days.
One in every second year, and that is the proportion which Senators must keep in mind. The problem of the half-day is somewhat different, but there again I think it was a necessary safeguard against possible evasion of the Act. Having regard to the somewhat different provisions set out here from those in the original 1936 measure and in the Shops Act, we are giving a greater latitude in the substitution of days for public holidays and, consequently, it is necessary to ensure where a public holiday does fall upon a non-working day or half-day a full day's wages must be given. I am prepared to admit at once that Senators can show that in individual cases that is going to work out somewhat unfairly, unfairly in the sense that a few workers will get advantages which others will not get, but I do submit to them that any alternative course will work out much more unfairly still. The classic case, if I may so call it, the case which was most frequently quoted in the various discussions we have had upon the matter, was that of the Inchicore shop-workers, who have been working a five-day week for, I think, ten years, and even though, officially, the short week is due to depressed conditions in the railway industry, it has lasted so long now that it can be fairly regarded as the normal practice of the industry.
Is their pay calculated by the week?
I am quite certain that a number of workers in the Inchicore shop are paid by the week.
I am referring to the short week ones.
The great majority are paid on the basis of an hourly rate. I do say there will be in that case or in other cases workers doing a short week who are paid on the basis of a weekly rate, and the arguments apply in their case as in any other case. The Inchicore Shop workers do not work on a Monday, and that is a much more significant day when one is to have regard to the question of payment for public holidays than Saturday, because a number of the holidays fall upon a Monday, and only upon a Monday, and they would get, in fact, payment for only three public holidays in the year unless this principle of payment for a public holiday, even when it falls upon a non-working day, was inserted in the Bill. In fact, I understand their employers have been giving them that payment in respect of public holidays since the 1936 Act was passed, and have accepted the point of view that they were obliged to do so by that Act, even though there was some doubt about the matter.
We could argue this matter for a long time, I know, because I have argued it for lengthy periods with various deputations from the organisations interested, without getting to any definite conclusion, because no definite conclusion is possible. In fact, we might even admit that the weight of argument on principle is with those who want to make the change that Senator Sir John Keane suggests, but the weight of argument on the grounds of convenience and practicability is with those who are against it. Having regard to my own outlook on the matter, I prefer to accept the argument of convenience, the argument based on practicability, even though it does mean that a few workers will occasionally get more money than they would otherwise get. I admit that if the argument is limited to those workers who are paid on weekly or monthly rates, my case is not so strong, but even in the case of these workers, there are special considerations which must be taken into account. There may be some workers, working on a short week, working on the basis of the weekly rates, which would be the normal rate. It is only in very specialised classes that a five-day week is worked. The great majority of the workers affected by Senator Sir John Keane's amendment are clerical workers paid weekly or monthly salaries, and it is true to say that in the great majority of these cases the normal working week extends over six days.
The only question that arises in relation to them is the possibility of their receiving, once in a while, a full day's pay in respect of a public holiday on what is ordinarily their half day. I do not think that it is so serious a matter as to justify us in taking the much wider risk of trying to bring back this legislation to the original basis, involving as it does a very substantial difficulty in the case of workers who may for any temporary reason in any occupation be working less than their normal full working week.
The Minister has argued for the Bill as it stands as against the Bill as it was introduced. I am in a certain amount of difficulty because the same points are made in this amendment as are made in my own amendment later. With your permission, Sir, it would save the time of the House if I referred to the alternative amendment which is virtually the same as this. I should like to point out to the Minister that it would be very rare indeed—I believe it could happen in a leap year and, I think, for that purpose it could be ignored—that this will occur more than once every second year. It will be rare that there will be more than one day concerned. If you take the five-day worker in a normal working week of 45 hours, he works nine hours for five days. Normally, the six-day worker works eight hours for five days and five hours on a Saturday. That is the way in which the 45 hours are made up. In a year of six public holidays, if the five-day worker has received five days, he has already received with pay his full week—45 working hours. The six-day worker will have to receive six days' pay in order to cover his 45 hours, so that, actually, either amendment as it stands would provide relief from a full week's work. That, I think, was what was originally intended and that is what is equitable. It is equitable in both cases.
The Minister's idea of convenience, of course, naturally would be different from ours, at any rate in present circumstances. Possibly the time may come when he ceases to be Minister and he has to act as employer and to pay wages on a lot of different scales. He will not then be nearly so much impressed by the convenience of treating on the same conditions workers whose wages should be calculated at different rates and watching a particular week in which the half-day has to be paid for extra. That does not normally happen and it could be easily overlooked. I should like to hear the Minister or Senator Foran explain to certain shop workers why one should get a day's pay more than the other. I am sure that Senator Foran could explain it in his own humorous way but the fact remains that it will cause a certain amount of dissatisfaction and it is not, I suggest, convenient. If the Minister is convinced that there is no possible way to meet this, it is useless in our moving any amendments. I want, however, to draw attention to the second amendment because in that I endeavoured to provide what Senator Sir John Keane has tried to provide in a different way. It is extremely difficult for a draftsman to draft amendments but it is one hundred times more difficult for a layman to do so. Nevertheless, we can generally manage to convey an idea of what we want. What I tried to provide was that when a full week had been given in public holidays during the year, there would not be any obligation to make additional pay. That would get over the difficulty, I suggest. There is a genuine difficulty and I can see the Minister appreciates it. I cannot say that we reciprocate his attitude by saying that we appreciate his difficulty. I can, of course, see his point in regard to what he calls the classical case of the Inchicore workers. I do not think that any reasonable person wants to prevent men who are doing only casual work from getting the benefit of holidays with pay I think they are a class of people who need holidays and they should get them, but I believe it should be possible for the brains of the Minister and his staff to find some way by which the difficulty would be met. Our difficulty really arises from the proposal that people who regularly work five days per week should get during the year, in addition to the full week's holiday, annual leave, six days' public holidays with pay. If they are five-day a week workers and get five days' public holidays, they get their week's holidays with pay, just as much as the six-day worker who gets six public holidays. One gets eight hours a day for five days and five hours a day on the sixth day—45 hours in all, and the other gets nine hours a day for five days, also 45. I think it is quite equitable. I am assuming, of course, the case of the year where there is only one holiday that is a non-working day. As far as I can find out the years in which it would occur twice are negligible. It would only possibly occur in a leap year.
I do not think that Senator Douglas's amendment could be accepted, or that it would prove, in operation, quite as simple as he suggests. I think his idea that an employer in respect of the six public holidays need not be obliged to give more than five days' pay in the case of a five-day a week worker would not work. I do not think the Senator or employers generally would get away with that. Take the case of a worker whose employment year begins on the 1st of January.
That is mostly the one that will arise.
I cannot agree that the amendment will not cause any difficulty. The six-day worker will get paid for every public holiday. It is not only in the case of the five-day week worker the difficulty would arise, but more particularly in the case of the four-day week worker on short time whose employer could contend, I think correctly, that the four days' pay represents the normal weekly wage. I do not think that we should do that. To attempt to do it would be only asking for trouble, apart altogether from the fact that it must be remembered, in the case of the five-day week worker, that where the holiday falls on a non-working day the worker is in fact doing more work in that week than the six-day worker. Therefore, the fact that he is getting more money is not as inequitable as has been suggested.
I think the Minister is influenced more by the difficulties that he foresees in connection with the acceptance of the amendment than with the equities of the case. All this kind of thing is bound to have a boomerang effect. This five-day week is bound to act as a distinct discouragement so far as employment is concerned. To that extent, the refusal to accept the amendment is anti-social.
I am prepared to discuss with the Senator at any time whether a five-day week is a better social device than a six-day week.
I am also prepared to discuss that question with the Minister, but not now. The Minister, when replying, did not deal with the point I raised about shops.
In connection with that point, one reason is that the only class of shop worker brought under the Bill is the worker who has not been given the advantages of the Shops Act. These do not relate merely to public and annual holidays, but to a number of other things as well. I am not at all averse to the idea of seeing the type of worker who has not secured the benefit and the protection of these Acts getting somewhat better treatment under the Bill. I do not think that, in practice, the better treatment will amount to very much, but in so far as it does, I think it is some compensation for the fact that those workers have not got the benefit of the whole of the shops legislation applied to them.
Would the Minister not agree that the vast majority of them have got it in practice?
I would not agree with that.
It is true in regard to Dublin at any rate.
I am sure that it is so in respect of certain types of shops, but in respect of a very large number I would not agree that it is the case.
Amendment No. 8, by leave, withdrawn.
Amendments Nos. 7 and 9 withdrawn.
Amendment No. 10 not moved.
I move amendments Nos. 11, 12 and 13 :—
11.—In sub-section (7), page 10, line 29, to insert after the word "days" the words "or short days."
12.—In sub-section (8), page 11, line 15, to delete the words "In this section" and substitute the following:—
"In this section—
the expression ‘short day' means in relation to a worker a day on which such worker under his contract of service normally works for less than a full day;"
13.—In sub-section (8), page 11, to delete lines 24 and 25 and substitute the following:—
"(iv) a short day."
The purpose of the amendments is to dispose of a situation which it was discovered might arise under sub-section (7) where an employer might not be able to give the six consecutive days in lieu of public holidays if a short day occurred in the worker's week. Sub-section (7) permits an employer to give six such days upon working days, but a working day is not a day on which a worker works less than a full day, according to the provisions of sub-section (8). The three amendments are intended to remedy that situation, and in order to do so the term "short day" is substituted for paragraph 4 of sub-section (8). Sub-section (7) is amended so that the intervention of the short day will not break the consecutive nature of the leave granted in lieu of public holidays. It is really a drafting amendment.
I think it is very much more than a drafting amendment. But, at any rate, it will save a lot of talk now, and I may say it is very satisfactory.
Amendments put and agreed to.
Section 9, as amended, agreed to.
SECTION 10.
I move amendment No. 14:—
In sub-section (7), page 12, lines 58 and 59, to delete the words "In the case of a non-domestic worker Sunday shall be reckoned as a day of annual leave, but".
I do not think Senator Douglas will deny that this is a drafting amendment. The deletion of these words makes no change in the meaning of the section.
Amendment agreed to.
Leas-Chathaoirleach
That decision governs amendment No. 20.
Before I move amendment No. 15, would the Minister tell me when it is likely this measure will be brought into operation? If that is not to take place immediately, there is no need for me to move the amendment.
The two previous Acts were brought into operation during the month of May. I do not anticipate that it will be possible to bring this measure into operation earlier than May.
On that undertaking, I do not propose to move the amendment.
Amendment No. 15 not moved.
Section 10, as amended, agreed to.
SECTION 11.
I move amendment No. 16:—
In lines 7, 8 and 9, to delete the word "industrial".
Sub-section (1) of the section provides "It shall not be lawful for any industrial worker, during any period of annual leave, to do for reward any industrial work." Before speaking at length on the amendment I should like to hear the Minister's reasons against it. The principle was accepted more or less by all Parties, Labour Senators and others, on the Second Stage that it is not desirable to allow, as far as you can possibly prevent it by law, people to get holidays with pay, and then to take work during their holidays for some other employer who is not legally obliged to give a holiday. That principle was accepted in the previous Acts and it applies to industrial workers. For some reason—there may be excellent reasons for it—that I do not know, it does not apply to workers governed by this measure.
The purpose of the section as it stands is to prevent a worker who gets annual leave taking industrial work during his holiday leave. The Senator asks why do we confine the prohibition to industrial work. The only answer is that our belief is that a prohibition as rigid as that which the Senator's amendment would involve might be found in practice to work out very harshly. We can think of a number of types of cases that might arise. There are many workers employed in one connection or another who might be hit very harshly by it, those who, for example, are engaged teaching at night in technical schools. If this amendment were accepted they would be required to cease that other work as well as their ordinary work during their period of leave from their ordinary work. Difficulties would arise in connection with other types of occupation. You have, for instance, newspaper reporters who work for agencies and papers outside the country. They could not continue that work during their period of leave if this amendment were inserted in the Bill.
Examples could perhaps be multiplied continuously, but it is not necessary to do so. The matter is one which has been the subject of considerable discussion here, and also, I might mention, the subject of discussion before the committee upon holidays that was set up in the United Kingdom. Their suggestion, I think, was that possibly a solution should be found by prohibiting a person on holidays from doing any work of the same class as he might be normally doing. But even that was not a solution of the particular difficulty I mentioned. Having regard to some of the examples quoted we felt it would be better to leave the position as it stands. The reason why the prohibition is confined to industrial workers is because the terms of the 1936 Act provide that anyone getting leave under that Act should be doing industrial work, and we thought we should leave it at that rather than extend it. If after experience in enforcing this Bill for some time we find that there is abuse creeping in, we might be able to deal with that when we have more practical experience of the difficulties involved, with a greater possibility of finding an equitable solution. As things stand, and in the light of present information, I think it would be unwise to risk the very rigid type of prohibition that deletion of the word "industrial" from the section would create.
There appears to be no support for my point, as I find I am alone in this matter. I do not think this is a satisfactory method, that the Minister has no power, except to introduce another Bill. I admit that it would be very convenient. If Senator Baxter had realised that neighbours could swop workers he would agree that a good deal of time was wasted. We had the suggestion that ladies could get over the difficulty in that way when dealing with domestic servants.
In the case of domestic servants, there is an actual obligation to give holidays in the sense of a cessation of work. There is an alternative offer to employers of domestic servants.
I thought there was an absolute obligation to give two periods of seven days and the suggestion has been made that they could swop for seven days.
That is not so in the case of domestic servants. A domestic can choose not to take holidays and get extra pay.
I am not going to press the point. I believe the Government is making a mistake in leaving it free for other classes, other than industrial workers, to take other work. In the case of a man who teaches in the evening you might provide that he could do any normal work connected with his occupation. There might be some way to deal with that class of case. In this case, you are deliberately putting into the Bill what I believe to be a very bad precedent. I will not press the matter, but I feel rather strongly that it will lead to abuse. There will not be abuse in the case of ordinary trade union workers, except occasionally, as, generally speaking, trade unionists and employers agree in this matter. You are bringing in a very large class of workers who are not trade unionists, and there is the very great temptation to take other work. It does happen in some shops on Saturdays, and is very unsatisfactory. It would be very wise if the Minister could find some way, so as not to leave the position as wide as it is at present. I am not pressing the amendment, as I have no support.
Senator Douglas is asking for something in the nature of class legislation. If you look at people who get holidays at present at the expense of employers, people like bank clerks, schoolmasters, university professors and others, I have never heard, in the case of such people, where it is customary that such a prohibition as is now proposed should be enforced.
Leas-Chathaoirleach
It is not being proposed.
Amendment, by leave, withdrawn.
Question—"That Section 11 stand part of the Bill"—put and agreed to.
SECTION 12.
(1) Every person who employs a domestic worker shall, in every employment year of such domestic worker during which such domestic worker has been continuously in the employment of such person and has worked in such employment for not less than 300 days, allow at such time as such person thinks fit to such domestic worker 14 consecutive whole holidays (in this Act also referred to as annual leave).
(ii) such worker has not been allowed before such cesser semi-annual leave during such first half,
such person shall pay to such worker on such cesser a sum equivalent to the amount which, under sub-section (3) of this section, he would have been liable to pay to such worker if he had in fact allowed such worker semi-annual leave during such first half and such semi-annual leave had been allowed during the last seven days of such first half.
Leas-Chathaoirleach
Amendment No. 17 has already been discussed.
Amendment not moved.
I move amendments Nos. 18 and 19:—
In sub-section (6), page 15, line 46, to insert after the word "first" the words "half or such second".
In sub-section (6), page 15, lines 51 and 53, to delete the word "first" where it occurs and substitute the word "second".
These are drafting amendments. One deals with domestic servants. The object of the second amendment is to ensure that the cesser pay will be based upon the pay applicable to the second half of the year.
Question put and agreed to.
I move amendment No. 20:—
To delete sub-section (9).
Amendment agreed to.
Question proposed: "That Section 12, as amended, stand part of the Bill."
With regard to sub-section (1), I should like to know what is the position of a worker who has two employers within one week, such as a gardener employed for a few days by one person and a few days by another person.
He does not qualify at all. Unless the worker has done the required number of hours with an individual employer he does not qualify. The employer is only liable if the worker has worked the requisite period of time.
Mr. Lynch
With regard to sub-section (9), in the case of a domestic worker, it states that Sunday shall be reckoned as a day of leave.
Leas-Chathaoirleach
Sub-section (9) is deleted.
Mr. Lynch
What is the object in having it deleted?
Really, because it is unnecessary.
Leas-Chathaoirleach
I do not think we should have a discussion on that again.
It is purely a matter of drafting. Sub-section (8) covers the same point.
Question put and agreed to.
SECTION 13.
Question proposed: "That Section 13 stand part of the Bill."
Sub-section (1) deals with payment in lieu of board and lodgings during leave. I submit that the figure of 1/- allowed in a county borough or the Borough of Dun Laoghaire in lieu of accommodation is very low. The sum of 7d. is also very low to allow for board and lodging in other places. Under the Agricultural Wages Act employers are entitled to deduct 2/4 for board and lodgings while, in this case, they are only obliged to pay 7d. and 1/. The amounts seem very low. Sub-section (2) states that accommodation means (a) in relation to a worker who is entitled to board only, board; and (b) in relation to a worker who is entitled to lodgings only, lodgings. It would be reasonable in that case to differentiate between board and lodgings. I suggest that the Minister should reconsider the amounts, having regard to what employers are entitled to deduct, and what they are obliged to pay here.
I am quite prepared to admit that the amounts indicated are small. They are, in fact, very little more than token payments but in fixing the amounts we fixed the minimum having regard to the type of cases that will arise. I mentioned here and in the Dáil cases of domestic workers employed on household work.
For the farmer the provision of board and lodging is a matter of little difficulty. He can easily provide the accommodation and the food required by a domestic servant. But the actual provision of cash, even a small amount of cash, in lieu of that in the case of an individual farmer will be a matter of some difficulty. Certainly he would much prefer to provide the food and lodging rather than the cash.
I confess that we considered a number of alternatives to the procedure adopted in the Bill before satisfying ourselves that this was the better course. There was, of course, the obvious alternative, which was adopted in the Shops Act of leaving the amount to be paid in individual cases to be determined by agreement, or, in default of agreement, by the District Court. But it was felt, and I think properly, that the bringing of the courts into the relationship between the employer of a domestic worker and the worker was an undesirable thing. Alternatively, we could set out some other authority than the courts to decide it, but in the long run that came to the same thing. Therefore, it was felt that there was only one course practicable, and that was to put the amounts in the Bill and leave it at that. What the amounts should be was naturally a matter of prolonged consideration and these amounts were arrived at upon the basis of fixing merely a token payment, recognising that in many cases the amounts would not represent any real compensation for the loss of the accommodation referred to. The Senator will understand that if this should create a position of real difficulty for any domestic servant, she has the alternative of taking extra wages rather than the annual leave, if the leave itself in fact meant having to leave the lodging or surrender the board that she would get by working.
Section put and agreed to.
Section 14 put and agreed to.
SECTION 15.
(1) The Minister may whenever and so often as he thinks fit by order (in this Act referred to as a records order) require records to be kept by employers of workers or any class of employers of workers of any matter or thing a record of which is in the opinion of the Minister necessary for the enforcement of this Act and if he so thinks fit prescribe the form of any such records.
I move amendment No. 21:—
In sub-section (1), line 36, after the word "workers" to insert the words "other than domestic workers."
This is not a very big point, but it seems to me that, so far as the ordinary domestic servant is concerned, it is really futile to prescribe the keeping of books and forms in the domestic dwelling-house to be shown. I think that the Minister would be just as happy if he had not the power to make these orders so far as domestic workers are concerned. If forms suitable for inspection by the Department are to be kept in relation to domestic servants, the average male member of the household would tell us that he would not get it done, and there would be nothing but trouble. I, therefore, suggest that the domestic worker should not be included in regard to forms and returns.
The section gives us power merely to prescribe forms, and that may or may not be exercised. I am disposed to agree with Senator Douglas that in the case of domestic workers it may prove to be futile to make an order under the section, but we must have regard to the fact that it will probably be in relation to that particular class of workers that the enforcement of the Act will present the greatest difficulty. Furthermore, these workers are specially of the class who cannot very well afford to assert their own rights. I should say that it will depend very largely on experience whether it will be necessary to require the employers of domestic workers to keep records, and I can assure the Senator that that power to require them to keep records will not be called upon except there is no other course open, and, if it is called upon, the records will have to be as simple and as conveniently kept as possible. I would, however, think it unwise to delete the power from the Bill altogether. I think the power should be there, even though we put it in knowing that it may be very difficult to exercise.
Amendment, by leave, withdrawn.
Section put and agreed to.
SECTION 16.
(2) The powers conferred on an inspector by paragraph (a) of sub-section (1) of this section shall not be exercisable in respect of any private dwelling-house unless the Minister or an officer of the Minister appointed by the Minister for the purpose certifies that he has reasonable grounds for believing that an offence under this section in relation to any worker employed in such house has been committed by the employer of such worker, and such inspector on applying for admission to such house produces such certificate.
I move amendments Nos. 22 and 23:—
In sub-section (2), to delete all words in the sub-section after the word "dwelling-house" in line 26.
After sub-section (2), to insert a new sub-section as follows:—
"If the Minister or an officer appointed by the Minister for the purpose is satisfied that he has reasonable grounds for believing that an offence under this Act in relation to any worker employed in any private dwelling-house has been committed by the employer of such worker, he may by notice in writing require such employer to allow an inspector to do any of the things provided under paragraphs (b), (c) or (d) of sub-section (1) of this section either at such private dwelling-house if the employer so elects or at a convenient place to be fixed by the inspector."
There again I am not to be taken strictly in regard to the exact wording, as I see one mistake myself, but the object is to try to get rid of the right of the Minister to send an inspector to the ordinary private dwelling of the citizen. We have endeavoured to keep a man's dwelling as his castle. At the time an inspector would go, the man in the house as a rule is away, and he is, I think, in most cases technically the employer. It seems to me that it would be very much better to give him the option either of allowing the inspector to call, or allowing the employee and the inspector to go somewhere else. I admit that in most cases people would prefer that he should call —probably in nine cases out of ten, unless there was some reason that they particularly did not want it to happen. But I think it is possible to avoid what I consider a highly undesirable provision, that you will send an inspector to a private house and that he is given specific rights of entry, however limited. I make an alternative suggestion. I do not want to take away the Minister's power to take action if he has reasonable grounds, but I suggest that, instead of having the right to send an inspector, as is provided in the Bill, he should, by notice in writing, require that an inspector be allowed. In practice, what is there to inspect in a private house? The real point is that the Minister has reason to believe that the Act is not being carried out.
I want some provision by which a domestic servant can see an inspector by herself and tell her story. That is practically all there is to inspect. There is nothing in this about what the bedrooms or other rooms are to be like. The inspector has to be satisfied that they are getting holidays under the Act. If you force the employer to make provision by which the inspector can see the domestic servant, it seems to me that it will meet the point. I consider the provision undesirable so far as the dwelling-house is concerned, and if inserted that it will be found very difficult to administer.
I have some sympathy with the amendment, but I am not sure that it is a practicable one. It is all very well to talk of a man's house being his castle. All of us react instinctively in favour of any proposal to keep it inviolate. In practice, the gas-man, the water-man, and everyone else has access to any house and nobody ever questions it. They go in and read the meters and inspect the pipes.
Not when there are instructions that they are not to be let in.
It is open to the householder to give these instructions, but that probably results in the gas, or the electric light, or the water, or the telephone being cut off, or something else which an inspector wants to inspect. In practice, it is much better to let the inspector in to look at the instruments and put up with what inconvenience is caused. In the particular case which arises here, the inspector cannot present himself for admission to an employer's house unless he has been furnished with a certificate by the Minister, or an official appointed by the Minister, to the effect that the Minister has reason to believe that an offence against the Act is being committed. That certificate must be issued, and it must be in the hands of the inspector when he presents himself at the house. Most Senators are aware that under the National Health Insurance Acts, which apply to domestic servants, inspectors have the right to visit houses and to interview domestic servants and employers and, generally, to conduct inquiries for the purpose of enforcing the Acts. I do not think that anybody has found it a very great inconvenience, even though these Acts have been in operation for a long number of years. In practice, of course, an inspection of this kind is of no use unless there is an element of surprise about it.
If the element of surprise be taken away, it is always possible to hoodwink the inspector when he comes. All that is in favour of leaving the Bill as it stands. As it stands, it does not involve much. It gives the inspector the right to go to the dwelling-house when he has got the necessary certificate and he will go there for no other purpose than to interview the domestic servant and hear her story. If the same facility could be given him, while maintaining the principle which the Senator is anxious to protect, I should have no objection to amending the section. As it stands, I think the section will do no harm to anybody. It may not even do any good. If there is strong objection to it, I am prepared to consider some alternative on the lines mentioned by Senator Douglas even, though it is suggestive of Health Robinson inasmuch as it is putting up very elaborate machinery to do what is, in essence, a very simple thing—that is, to go and ask the domestic servant if she has got her week's holidays or got pay in lieu of holidays or put some query of that kind. I am not prepared to press my objection to Senator Douglas's amendment on principle but, as it stands, it would not do and I should like to have an opportunity of considering it further.
I did not raise this point simply of my own motion. Several people spoke to me about it and I should like the Minister to see if something could be done to improve the position. I do not think that his argument is entirely fair when he introduces into it the gentleman who comes to inspect the gas meter. The provision in the Bill enables the inspector to enter the premises at all reasonable times. In the case of the private house, that can be done only when he has the authority of a person nominated by the Minister to give that authority but, if anybody obstructs him, he is liable to a penalty. There is a big difference between his entry and the entry of a gas company's inspector. I do not think that there is any danger of the powers in the Bill being abused but we do know that, in other countries, similar powers have been used for different purposes—to visit a house for political or other reasons. I do not want to suggest that that is likely to happen here in the near future but I think that it is a good thing to avoid that type of legislation if possible.
The Minister knows how extremely difficult it is to draft an amendment of this kind. I put it down in this form because I wanted to show that I admitted that there was a great deal in the Minister's point. The difficulty might be met by providing that the inspector could call and interview the maid at the door. As the provision is, the decision as to what is a "reasonable time" will lie with the inspector. The powers are fairly drastic and I am not objecting to anything that is quite moderate. If the inspector were to be entitled to call and ask to be permitted to interview the servant at the door, without prior notice, I do not think that I would object but he should not have the right to enter the house in this way. I do not want to prevent inspection because I do not think that the Bill would work without inspectors.
I shall consider the matter further.
Amendments Nos. 22 and 23 postponed.
On the section, I should like to know if sub-section (2) means that an inspector has no power to enter if the employee has ceased to be employed.
I shall consider that point, though I am not sure that it arises. The only question likely to arise where the worker has ceased to be employed would be as to payment of cesser pay. That is not a matter for the Minister. It is a matter for the worker. She has got to exercise her rights, and I do not see how the Minister might have to carry out inspections if employment had ceased.
Section 16 agreed to.
SECTION 17.
(1) Where a contract for the execution of any work was entered into before the commencement of this Act and is at such commencement not fully carried out, and the person liable under such contract to execute such work claims either or both of the following things, that is to say:—
(b) that, by reason of the said obligations, any particular price or other payment fixed by such contract has become unreasonable and should be increased,
then and in every such case, such claim shall, in default of agreement between the parties concerned, be referred, on the demand of any such part, to arbitration under this section.
I move amendment No. 24:—
In sub-section (1), page 19, line 10, to delete the word "part" and substitute the word "party".
This is a drafting amendment.
Amendment agreed to.
Section 17, as amended, agreed to.
Sections 18 to 23 agreed to.
SECTION 24.
Question proposed: "That Section 24 stand part of the Bill."
Would the Minister consider putting in in full the definition of "industrial worker"? It would be merely a matter of a little extra printing. Employers will have to get copies of this Bill and almost all the provisions, so far as holidays are concerned, with regard to industrial workers, are transferred to this Bill from the previous Act where the section is repealed. It would be a very great convenience if the definition of "industrial worker" could be put into this Bill.
I do not see any need for it. We had to define "industrial worker" under the 1936 Act because it was confined to industrial workers. The question whether a particular form of work is industrial work does not arise under this Bill. This Act applies to all workers except those specifically excluded and the only substantial class excluded are agricultural workers. While, under the 1936 Act, the question whether a particular individual was engaged in industrial, commercial or transport work might be an important one from the point of view of the employer, it does not arise under this Bill.
Whether he is a domestic worker or not would depend on the definition of "industrial worker".
It is very bewildering if you have to go back to another Act to get a definition.
The relevant provision in the 1936 Act is a long one and as the Senator knows is not really a definition.
I do not press the point but it would be a great convenience if it could be done.
Sections 24 and 25, Schedule, and Title agreed to.
Leas-Chathaoirleach
When is it proposed to take the Report Stage?
I am entirely at the disposal of the Seanad.
Leas-Chathaoirleach
I understood that Senator Douglas had some suggestion about the Report Stage.
I understand that the House will hardly meet next week but that it will probably meet the following week.
Tuesday, the 7th of February, was suggested as the date.
Leas-Chathaoirleach
Is the House likely to meet on Tuesday?
The question of meeting on Tuesdays was discussed with various people, and I think there was pretty general agreement that it would be more advisable to meet on Tuesdays instead of Wednesdays and to try it out for a while without tying ourselves down to any hard-and-fast rule. To meet on Tuesdays would make for the convenience of Ministers and it would also make for getting more publicity for us when the Dáil would be in session.
That is, as a permanency, to meet on Tuesdays, or is it just for this particular Tuesday?
No. I have been discussing it with various people and there seems to me to be a general feeling that, for the reasons I have stated, Tuesday would be more suitable, but that it would not be a good thing to fix Tuesday meetings for all time. We could try it for a while and see if it works.
The Report Stage could be taken at the first meeting of the Seanad.
Leas-Chathaoirleach
The Report Stage will be taken at the next meeting of the Seanad.
Has anything been settled as to whether we are meeting on Tuesday or Wednesday?
Leas-Chathaoirleach
That will be settled later.
