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Seanad Éireann debate -
Wednesday, 19 Apr 1944

Vol. 28 No. 17

Public Business. - Conditions of Employment Bill, 1944—Second Stage.

Question proposed: "That the Bill be now read a Second Time."

The purpose of this Bill is to remove certain doubts which have arisen as to certain sections of the Conditions of Employment Act, 1936. There are three amendments to that Act proposed for clarification purposes. The first of these relates to the definition of industrial work. The Conditions of Employment Act, 1936, prescribes the conditions of employment that became enforceable by the passage of that Act into law for industrial workers. Industrial work was, however, not positively defined in the Act. It was defined in a negative way as work which was not agricultural or clerical, or domestic work, work in mining or transport, but in particular it covered various occupations which were set out in Section 3 of the Act.

Amongst the occupations therein set out was the killing of any animal or bird, and industrial work done in connection with the killing of any animal or bird was made subject to the provisions of the Act. I was subsequently advised that the term "animal" included fish and that it might be held by a court that fishing was brought within the scope of the Act. It is obvious that an occupation which is so dependent on conditions of tide and weather could not be subjected to the same regulations as industrial work normally might be. Consequently, it is proposed to give effect to an amendment of the section of the Act by excluding fishing, and making it clear that persons employed in fishing are not within the scope of the Act. In order to remove any possible misunderstanding I should explain that work done on shore in connection with the packing or curing of fish will remain subject to the scope of the Act.

The second amendment which it was desired to effect concerns the section which provides for payments in respect of overtime. One of the main provisions of the Act was that designed to limit employment in industrial occupations to a maximum of 48 hours a week. That limitation upon the hours of employment was made generally, but was not intended to apply to continuous process industries. There are certain industries which must be carried on day and night, Sunday as well as Monday, and in respect of these continuous process industries the Act was intended to provide for a maximum working week of 56 hours. There was, I think, no doubt that that was the intention of the Oireachtas when enacting the measure. Reference to the debates which occurred in the Dáil and the Seanad on the various sections makes it clear that nobody had any impression other than that the Act was to have that effect. Some time ago two gas works employees took proceedings against their employers for overtime in respect of hours worked over 48. One got a decision in his favour, a decision which was subsequently confirmed by a High Court judge on appeal, and the other worker also got a decision against him, which was also confirmed by a High Court judge.

It is quite clear that there is an element of doubt as to how the Act is to be interpreted, and it is proposed to amend the section so as to remove that doubt, and to make clear the original intention of the Oireachtas, which was that the maximum working week in continuous process industries would be 56 hours a week. It is intended to make that amendment retrospective in effect, safeguarding the rights of any worker who may have instituted proceedings for recovery of sums due to him. It is quite clear that if the original Act were to be finally interpreted as giving a right of recovery of overtime pay in respect of hours in excess of 48 a substantial number of workers would have a claim which it was never intended they should have, which they did not know they had, and employers of these workers would have very considerable liabilities to face. For that reason it is considered desirable to provide for the retrospective operation of the amendment.

Section 5 of the Bill which provides for the protection of proceedings already started is very widely drafted, and ensures that these proceedings shall not be invalidated and shall proceed as if this amendment had never been made. The effect of the amendment does not alter in any way the position of workers who by reason of agreements negotiated enjoy better terms than are provided by the 1936 Act. The 1936 Act was designed to establish and make legally enforceable minimum conditions of employment and, in a very large number of industries, conditions which have been created as a result of negotiations in past years are substantially better than those which the Act made legally enforceable. In no way will the position of the workers be worsened by the amendment.

The third amendment was inserted in the Dáil on the suggestion of some of the Labour members. Whether or not the original Act has the effect of confining to the Minister the right of prosecuting employers who do not comply with the requirements of the Act, in practice, since the Act was passed, all prosecutions for infringements have been at the suit of the Minister for Industry and Commerce. It was represented that in the case of offences against a worker it was desirable that the worker himself, or a trade union on his behalf, should be given the right to institute proceedings, and an amendment to that effect was accepted and inserted during the passage of the Bill through the Dáil. The right of instituting proceedings is given to workers or their trade unions only in respect of offences against the worker or workers concerned. There are certain other offences, such as failure to display the prescribed notices or to give the Departmental inspectors the necessary access to books and records, which will remain the concern of the Minister.

That is the full provision of this amending Bill. It is designed to effect these three amendments in the Conditions of Employment Act, 1936, so as to remove the doubts, which have arisen since, as to its interpretation.

I have read much of the discussions that took place on this Bill in the Dáil, and I am just as far on now as I was when I started. There appeared to be a great amount of confusion when the Bill was going through the Dáil. There is also a great deal of dread and fear amongst the trade unions catering for those people who are engaged on continuous-process work or shift work. I do not want to make the matter more confused than it was, but there certainly is a great deal of doubt in the minds of the trade unions regarding the full effect of this Bill. They are thinking rather on the lines that this is a somewhat retrograde step so far as they are concerned. It is an extraordinary situation that in two cases that went through the Supreme Court, one was decided in favour of the worker and one decided against him, and yet we have an eminent counsel here advocating the application of all these matters to the Supreme Court.

Not to the Supreme Court, but to the High Court, and the case can go to the Supreme Court on appeal.

At any rate, there is the fact; and I think that we ought to have a uniform decision in both cases. I think it would be better for the Minister to make the matter absolutely clear as to which is right or which is wrong.

Would his decision be favourable?

Well, at any rate, whether favourable or not, we would have a definite decision, after going through the full process of the law. I have a lot of correspondence here from people employed in gas works, and they have grave doubts as to what their position will be after this Bill is passed. I want to put it to the Minister that he ought to be willing to meet a deputation or delegation of these people in order to set their minds at rest. I suggest that in that connection the Trade Union Congress would be the best authority to deal with the matter. It may be suggested that these gas workers are only comparable to other people whom we know, but I do not think that that is quite right, from what I know of the matter, and I know as much about it as most people, I think. I make the suggestion to the Minister that in order to clear up the matter he ought to be prepared to meet a deputation such as I have proposed. I will not go into the correspondence that I have here, because I think it would only make the matter more confused than it is at the moment, but I think the Minister ought to be willing to meet a delegation representing these people, in order to clarify the position.

There is a number of people engaged in continuous process or shift work who are enjoying much better conditions than are provided under the 1936 Act, and these people feel that these better conditions will be in jeopardy if the Bill is passed in its present form. There is a good deal of doubt of that kind in existence, and I think it would be well if an effort was made to meet the people directly concerned in this matter in order that people's minds may be put at rest. I make that suggestion to the Minister in all sincerity. As I have said, I could occupy a long time in the House in going into this matter, but I do not think it would get us anywhere. I have read the whole debate in the Dáil and, as I said before, I am more confused than ever, as a result. I merely got up to make that proposal to the Minister, and I hope that he will be willing to accept it.

I wonder if the Minister, when he is replying, would schedule or define for us what exactly is meant by continuous process work. It is quite possible at the moment that it would come within the ambit of certain industries, but it seems to me that what is envisaged by continuous process work might not embrace certain industries that are not contemplated at the moment, and I think that if in the course of time other industries should come into being, involving continuous process work, they ought to be enabled to receive the same licence from the Minister. Continuous process manufacturing is quite different from shift work.

A number of manufacturers have to engage in shift work in order to compete with other manufacturers, and they feel that they will be in a worse off condition as a result of the Bill. I do not think that they will be, however, because I am sure that the Minister will consider the extension of this continuous-process business to shift work so as to enable these people to compete with their rivals in the industry concerned.

With regard to Senator Foran's suggestion, that the Minister should be prepared to meet a deputation from the trade unions in this matter, I would also suggest that the Minister should meet representatives of the manufacturers or industrialists who use this continuous-process work or shift work in their factories. There are two aspects here, and I am not competent to say whether the Minister's interpretation is better or worse than that of the Supreme Court. He has told us that it is to define a system which he is now going to legalise. Senator Foran seems to doubt that, and seems to be inclined to invade Senator Kingsmill Moore's sanctum. However, as I said, if Senator Foran wishes such a conference as he has suggested to take place, I suggest that the manufacturers' end of the matter should be considered also, and that there should be a joint conference.

I should like to point out that there seems to be a mistake in drafting in the Bill. In Section 5 a reference is made to Section 3 of the Act and I think that the reference should be to Section 4.

Yes, that is quite right.

Obviously, when the section was being introduced in the Dáil, this escaped notice.

I think I may help to remove any possible confusion by saying that 98 per cent. of the workers and 99 per cent. of the employers in continuous-process industries had no doubt as to the correct interpretation of the Act until this amending Bill was introduced. As we intended, the Bill provided for a maximum working week of 56 hours in these industries. Our Act was framed on the 48-hour convention, which also permitted the substitution of the 56-hour week in continuous-process work, and did not attempt to define these industries seriatim. If at any time a definition should be necessary it would have to be done in the court.

A continuous process industry is one in which the work must go on continuously. The sugar factories, for instance, in the campaign season, provide perhaps the most perfect illustration of what is meant by continuous process work. In such a factory, once the process of manufacture has started it cannot be stopped, and it must go on continuously until the end of the campaign. Similarly, in the case of a glass factory, once the tank is warmed up and the glass melted in the tank, the process must go on until the tank is empty. Gas works and electricity works are also obvious examples.

Senator Foran used the term "continuous process industry" as being synonymous with a shift-work industry. It is not. In addition to those industries which must work continuously, there are other industries which do shift work under licence. They are industries which could be carried on on the basis of a 48-hour week or of ordinary day work but which, for various reasons, such a seasonal pressure of business, are permitted to work two or three shifts per day. In their case they must get a licence to work shifts and in their case also overtime is payable in respect of any hours worked in excess of 48. A worker in a shift-work industry is entitled to overtime for all hours worked in excess of a 48-hour week. Consequently this amendment makes no change whatever in that respect. There was never any doubt as to their right to the payment of overtime provided for in the original Act. I am quite willing to receive any deputation from the Trade Union Congress or the Employers' Federation that might wish to discuss this matter. I think it will be quite easy to show that in fact no change will occur in that respect as a result of the enactment of this particular amendment. As I have said the vast majority of those concerned did not know that there was any doubt as to the interpretation of the original Act until the amending Bill was introduced and any correspondence which Senator Foran or I received has arisen largely out of a misunderstanding as to what the amendment effected. I thank Senator Kingsmill Moore for drawing attention to the fact that a drafting change was made in Section 5. The change had been made in my copy of the Bill so I did not advert to the fact when speaking.

Question put and agreed to.
Committee Stage ordered for to-morrow.


We would like as early notice as possible of amendments but we will accept them up to 1 p.m.