This Bill, as its title indicates, is a measure to amend the Shops (Conditions of Employment) Act, 1938. As the House will remember, that Act of 1938 controlled conditions of employment in shops; defined the normal working hours of members of the staffs of shops, restricting the working of overtime; provided for suitable meal intervals, weekly half-holidays, holidays in lieu of Sundays worked and annual holidays with pay. The Act was in a sense experimental. During the three years in which it has been in operation experience has shown that it contained various defects which rendered difficult the full enforcement of the Act and certain amendments to it have become necessary. This amending measure was framed to meet these difficulties. In passing the Bill, Dáil Eireann had regard to the fact that I stated that some further amendments which had been discussed in that House would be introduced when the Bill was in Committee before the Seanad. As the Bill, like all measures to amend previous enactments, contains a number of sections which are not directly related one to the other, discussion on it could not be called a discussion on principles but rather upon the details of the proposals and, if the Seanad will give me time, I will indicate the nature of the various amendments which the different sections seek to bring into effect.
Section 2 defines a member of the staff of a shop. It appears from our experience of the working of the Act that the definition of a member of the staff of a shop contained in the original Act brings within its scope certain clerical or transport employees other than bona fide members of the staff of a shop who may do for the proprietor within the precincts of the shop some work on odd occasions coming within the definition. It was not intended that such people should be included. One or two illustrations may perhaps help members of the Seanad to understand what I have in mind. A clerk employed in a motor garage might on some occasion supply a customer with petrol although that would not be part of his ordinary duty, or a person employed ordinarily in transport operations, the delivery of goods purchased in a shop, might on occasion participate in the sale of goods in the shop. The fact that such an employee did these duties occasionally would bring him within the definition of a member of the staff contained in the original Act although it was not intended that they should be so included, nor would the nature of their work permit of their being subjected to the same regulations as to hours as might apply to ordinary bona fide shop assistants for whom the Act was originally designed. We are, therefore, altering the definition in such a manner as to exclude such persons while ensuring that all employees who are bona fide members of the staff of a shop will remain within the scope of the Act.
Section 3 excludes from the Act persons employed as breadvan drivers or as milk roundsmen or as ice-cream vendors. It was not intended that such classes of workers should be included within the scope of the Shops (Conditions of Employment) Act. Clearly, the nature of their employment is such that they could not be subjected to the same limitations in respect of hours as ordinary shop assistants working within or adjacent to the premises of a shop. During the course of the discussion of the principal Act in the Dáil an amendment was inserted designed to ensure that the conditions attaching to an ordinary shop would attach also to a travelling shop, and it appears now that that amendment, designed to achieve that purpose, also had the effect of bringing within the scope of the Act such persons as breadvan drivers, milk roundsmen and ice-cream vendors.
In 1939 a number of breadvan drivers in Drogheda lodged with their employers claims for payment of overtime on all hours worked in excess of 48 hours per week. Arising out of that claim there was a test case taken to the courts and in the Circuit Court a decision was given in favour of the employees, a decision that they were in fact within the terms of the Act. That decision of the Circuit Court opened up a very wide prospect. It involved not merely substantial arrears of payment, amounting to several tens of thousands of pounds, by bakery proprietors, but it also involved, apparently, a complete disorganisation of the manner in which the bakery trade is carried on. It would certainly have involved a cessation of the method of selling bread by means of breadvans. Consequently, a decision was taken at that stage to amend the Act so as to give effect to the original intention, which was that these classes of workers should not be included. Subsequently, the other parties to that particular action appealed from the decision of the Circuit Court judge and there were various hearings in the High Court and Supreme Court. The Supreme Court decided that while the vehicle involved in the test case, namely, a breadvan, was deemed to be a shop under the Act since retail sales were carried on therefrom, the employee could not be regarded as a member of the staff of such shop since he was not working in the precincts of the shop, and, in fact, carried on most of his business at the doors of the houses of his customers some distance from the van.
While that decision of the Supreme Court removed the necessity for the present amendment in regard to breadvan drivers, it also removed from the Act employees of travelling shops with which the section was originally designed to deal who might carry on retail sales at some distance from the travelling shop. It demonstrated that if the breadvan driver, milk roundsman or ice-cream vendor transacted most of his business in the form of retail sales in the immediate vicinity of the van, he would be regarded as a member of the staff of the shop. It also demonstrated that the court regarded the present definition of "member of the staff" with its use of the word "precincts", as not suitable for use in connection with moving vehicles as distinct from premises or places, and that the position of vehicles under the principal Act required clarification. Section 3 is designed to meet the old difficulties which we knew existed under the principal Act as well as the new position created by the decision of the Supreme Court. The purpose of the amendment is to retain within the scope of the principal Act all genuine travelling shops, while excluding bona fide delivery vans doing a small amount of retail trade and breadvans, milk roundsmen's vehicles and ice-cream vendors' vehicles.
Section 4 deals with hotel employees. While the principal Act was under consideration in the Dáil and Seanad, there was considerable discussion as to the advisability of attempting to deal with the hours of work of hotel employees under a Shops Act. Although the Act was framed to provide for the inclusion of hotel employees within its scope, considerable doubt was expressed by many members of both Houses as to the wisdom of doing so, in which doubts I personally strongly shared. In fact, I stated during the course of the discussion in the Dáil that if hotel employees had not been included within the scope of the Bill when first introduced, the difficulties which had emerged during the discussions in the Dáil were such that I certainly would never have attempted to include them subsequently. Experience has shown that outside the City of Dublin, the provisions of the Shops (Conditions of Employment) Act in respect of hotels were practically unworkable. It is only in the City of Dublin, where there are large hotels with permanent staffs and where there is a reserve pool of skilled labour which can be drawn upon as required by hotel proprietors, that it has been found possible to carry out in full the provisions of the Act in relation to hotel employees.
In the rest of the country, where circumstances are entirely different and where they vary from district to district and from one type of hotel to another, the difficulties experienced by proprietors in carrying out the provisions of the Act were such that the inspectors of the Department reported that they could not be enforced at all, and in many cases the objections to the enforcement of the Act were equally strongly voiced by the employees of the hotels, and particularly those hotels in summer resorts which open for only a few months in the year and in which a large part of the employees' remuneration comes in the form of tips, with a consequent disinclination on the part of the employees to take holidays and lose revenue on that account. It became obvious, therefore, that the Act had to be amended, and as the Bill now stands, we propose to delete hotels from its scope altogether, except in the County Borough of Dublin. At some later stage, it may be possible to devise legislation designed specifically to deal with the problem of employment in hotels, I do not, however, want to be taken as definitely promising such legislation, because the difficulties that arose were not due entirely to the inapplicability of the Shops Act to the hotel business. They were due also to the very great variations in the type of business carried on in one hotel as distinct from another.
Section 5 of the Bill is a minor amendment, which deals with the tea interval in chemists' shops where the provisions of the Shops Act came into conflict with the provisions of the Pharmacy Act of 1875. In certain types of chemists' shops, it became impossible for the proprietor to comply with both Acts. He had to break either one or the other, and that position has been rectified by the amendment. During the course of the discussion in Committee in the Dáil, certain amendments were put forward on behalf of hotel proprietors which it was claimed would ease some of the difficulties of the catering trade under the principal Act. I examined these amendments and had certain consultations with interested parties concerning them. I found that there was amongst all people, employees' and workers' organisations, considerable unanimity of opinion as to the desirability of the changes, and consequently I indicated in the Dáil that I would accept amendments on the same lines if moved in this House, and in fact undertook to arrange that such amendments would be moved. That was solely for the purpose of securing the expeditious passage of the Bill through the Dáil. These amendments have been drafted and will be submitted to the Seanad in due course. A further amendment will also be necessary following the decision of the Supreme Court in the case of Martin v. Galbraith, Ltd., to which I have already referred.
Section 3 of the Bill will exclude ice-cream vendors from the scope of the principal Act from the date on which the Bill becomes law, but it is clear from the judgment of the Supreme Court that if retail sales are carried on in the immediate vicinity of the vehicle, the courts will probably regard the employee concerned as a member of the staff of the shop for the purposes of the principal Act. That decision removes most, if not all, breadvan drivers and milk roundsmen from the principal Act since they carry on their business from door to door, but ice-cream vendors, who transact their business from a vehicle, would therefore be within the scope of the principal Act up to the date on which this Bill may become law and could therefore put in large claims for overtime for work done during the period between May, 1938, to the date of the passing of this Bill. As I have stated, it was never intended that such persons should be within the scope of this legislation, and we are removing them from the principal Act by this Bill. It will, however, be necessary to provide that their exclusion from the principal Act will be retrospective.
That covers all the provisions in the Bill. I have explained that its purpose is to effect such amendments in the provisions of the Shops (Conditions of Employment) Act, 1938, as experience has shown to be necessary and as are designed to ensure that the provisions of that Act will be made more easily workable and enforceable. I do not think that any of the amendments are of such a character as to conflict with the principle of the principal Act. They are all designed to ensure that difficulties which have arisen in the enforcement of the Act will be removed, either by modification of the terms of the original Act or by an amendment of its scope.
