Before we take up consideration of the Committee Stage of this Bill, I should like to indicate that the Cathaoirleach has ruled that amendment No. 29 in the name of Senator FitzGerald is out of order as it involved a charge on State funds. The Senator has been notified accordingly.
Redundancy Payments Bill, 1967: Committee Stage.
An Leas-Chathaoirleach
Section 1 agreed to.
SECTION 2.
An Leas-Chathaoirleach
The Chair suggests that amendments Nos. 1, 2 and 64 be taken together, with separate decisions if necessary.
I should like the permission of the House to withdraw amendment No.2 and replace it with amendment No. 1.
An Leas-Chathaoirleach
Perhaps it would be better if the Senator moved amendment No. 1 and have it discussed and not move amendment No.2.
I move amendment No. 1:
In subsection (1), page 5, between lines 11 and 12 to insert "‘sickness' or ‘illness' includes ‘disability' under the Act of 1952."
The idea behind this is to ensure that disability will cover any sickness or any illness arising out of a traffic accident on the way to or from work. We intend also in this amendment, to include sickness or illness in this Act.
An Leas-Chathaoirleach
Does Senator FitzGerald wish to say anything since amendment No. 4 stands in his name?
My point is much the same—to cover injury as well as sickness. I was not certain whether sickness as legally defined elsewhere automatically includes injury. In case of doubt I proposed the amendment. If, in fact, sickness is legally defined as illness it is not necessary. My solution was to add "or injury" at the relevant point. Senator Miss Davidson's point is better. I should like to get the Minister's opinion on it before deciding what is the best way to approach the problem.
I understand that sickness in the context used in the Bill would include the type of disability in the amendment put down. I had intended to accept amendment No. 2, just to strengthen the Bill and this would meet the sense of both amendments.
Would the Minister like to explain why he makes that distinction before we accept his acceptance?
I think the definition of illness would cover disability within the meaning of the Act of 1952— people being incapable of work. That would strengthen the Bill.
Why does the Minister feel that amendment No. 2 is better than amendment No. 1 and Senator Miss Davidson feels that amendment No. 1 is better than amendment No. 2? Clarification would be helpful.
The actual word "disability" is not defined in the Act of 1952.
I thought amendment No. 1 was stronger than amendment No. 2. I am quite willing to let amendment No. 2 stand if the Minister cannot take amendment No. 1.
Amendment No. 2 would suit me better.
I am completely lost.
Perhaps if I oppose all the amendments the House will be able to deal with them better.
It would seem to me that the Minister is right with regard to amendment No. 2 because it seems to be no more limiting that "being incapable of work within the meaning of the Act.""Being incapable of work within the meaning of the Act" would include disability but might also include something else. The Minister is being generous and wise. I think the second amendment is the better one to incorporate in the Bill.
Perhaps we should accept the Minister's acceptance before he opposes the lot.
The tabling of the second amendment covering the same point led us to believe that the Senator had changed her mind about the wording and considered that her second amendment would have been better than the first. They cover the same point. "Disability under the Act of 1952" is in the first amendment and there is no definition of disability in the Act of 1952. The fact that the Senator put down a second amendment led me to believe that this was a replacement. Would the Senator prefer the first one?
I did prefer it but if the Minister thinks the second one is better, I agree.
If the Senator intended to withdraw the second one, why did she put it down? I shall accept the second one.
I thought "disability" was mentioned in the Act but not defined.
The second one is the better, because in the Act of 1952 disability is not defined.
An Leas-Chathaoirleach
Amendment No. 1 is withdrawn. If any Senator feels the matter should be further discussed Senators can deal with it on Report.
Amendment, by leave, withdrawn.
I move amendment No. 2:
In subsection (1), page 5, between lines 11 and 12, to insert "‘sickness' or ‘illness' includes being incapable of work within the meaning of the Act of 1952."
Amendment agreed to.
Section, as amended, agreed to.
SECTION 3.
An Leas-Chathaoirleach
Amendments Nos. 3, 6, 11, 16, 17, 25 and 35 hang together, all the subsequent amendments being consequential on amendment No. 3. These will be debated together with a single decision.
I move amendment No. 3:
Before section 3 to insert a new section as follows:
"(1) This Act (except sections 28 and 46) shall be deemed to have commenced on 17th May, 1967, being the date on which the Bill for this Act was ordered by Dáil Éireann to be printed.
(2) Sections 28 and 46 shall come into operation on such day as the Minister appoints by order."
What I had intended by these amendments, following on what I said on Second Reading, was that the Minister should consider publishing the Bill on the 17th May. Delaying the Bill until 1st January gave a cue to the not so good employer to get rid of a certain number of people quickly so that he would not be caught by having to give them redundancy payments. I put these down in an effort to get the Bill brought into force from the 17th May.
There is another aspect of this which I think would apply and this is the temptation to employers to limit the service of people before the 1st January. They would have to start building up rights again as from the date of their reemployment. It is not easy to ask the Minister to agree that a Bill with various sections should be deemed to be in operation before it is passed by the Oireachtas. I am not certain about this but I think there are precedents in Finance Bills. I have seen in Finance Bills provisions put into operation—I know that is done in Finance Bills flowing from the Budget; you employ the taxation from the date of the Budget speech of the Minister—even though the necessary legislation might not be passed for two months afterwards. In other Finance Bills, in tidying-up Bills, I have seen provision, I am sure, where the change would operate from the date of publication of the Bill and not from any subsequent date when it would eventually become law.
I cannot say that I have any evidence of employers rushing to pay off people before the 1st January. I have no evidence in my particular job. Perhaps I will come up against it. I know other trade unions have expressed concern about this. That is why they are still anxious that the Minister would enact the Bill in this respect so as to give cover to the people concerned.
I am sure that the employers are anxiously scanning this Bill, and not all employers are upright, scrupulous and fair-minded people. I am afraid that many of them, particularly in the case of small employers, where the trade unions would not be able to adequately cover the situation, would be tempted to pay off people before the 1st January in order to exclude them from the provisions of this Bill. There might be this rush to pay them off and that would be very undesirable. I am quite sure that it would not be the Minister's wish that it should happen.
All these amendments are part of the purpose of introducing an element of retrospection into the scheme. I have said several times and repeated it here in the Seanad that I am not prepared to consider giving retrospective effect to the scheme. This problem arises whenever any scheme is introduced giving benefits to a section of the community. There will always be people who would have benefited if the starting date had been earlier. That holds no matter what starting date you take. Retrospection is a bad principle in regard to a scheme of this kind and I am very firm in resisting pressure for it. There are many reasons why it must sound good to many people for applying a certain amount of retrospection, but if you break the principle and have retrospection in any way it is impossible to know where to stop without giving rise to feelings of bitterness and dissatisfaction in that group of people who will be excluded whatever is decided. No matter what time you go back to, there will be people who just prior to that would have benefited if you had gone back a month earlier or more.
The question of laying off people and re-employing them for the purpose of breaking continuity of employment is covered under the schedule which provides that such a period would have to be at least 26 weeks. So to disemploy people for a week or two will not break continuity and they are protected by the Bill as it stands.
Amendment, by leave, withdrawn.
Section 3 agreed to.
SECTION 4.
An Leas-Chathaoirleach
It is suggested that amendments Nos. 4, 5, 9, 12, 13, 33 and 46 be debated together, with separate decisions on amendments Nos. 4, 5 and 46 if necessary.
I move amendment No. 4.
In subsection (1), lines 37 to 40 to delete all words from and including "employed" in line 37 down to and including "of" where it first occurs in line 40 and substitute "who have been in the same employment for the".
The purpose of this amendment and certain consequential amendments, as also of amendments sponsored by the Labour Party, is to eliminate those provisions of the Bill which confine the operation of this scheme to employees insurable for all benefits under the Social Welfare Acts. There was some discussion on this on Second Stage and certain arguments were put forward, but we need to discuss it more fully. The Social Welfare Acts in this country are limited in their application and exclude any non-manual worker who earns over £1,200 a year.
I do not understand the attitude implicit in this provision, that if a man earns over £1,200 a year in a non-manual employment, therefore, his redundancy and loss of his job matters less and involves less hardship than in the case of a manual worker with the same income or in the case of a non-manual worker earning less than £1,200 a year. In fact, it is the other way around. The manual worker at least is covered, even if he earns over £1,200 a year, for Social Welfare benefits, and will get unemployment benefit, whereas the non-manual worker will get nothing whatever if he is redundant. This discrimination seems to me to be quite unwarranted.
I have before in this House spoken on the subject of discrimination between manual and non-manual workers, and the sense of my remarks has been against the discrimination there is in this country against manual workers. There are many ways in which there is discrimination against them. On this occasion we have to look at it from the other point of view, because here there is unjustified discrimination against people simply because they are not engaged in manual employment who are not covered under the Social Welfare Acts and cannot benefit from unemployment benefits and, therefore, must get nothing. The logic of this defeats me. The only case made for the difference in treatment at the moment is that some of these workers, allegedly many of them, do, in fact, have benefits of other kinds in the form of security of employment if they are public servants, pension provisions or other provisions which would mitigate the effects of loss of jobs. It is also alleged that their chances of losing their jobs are less than in the case of manual workers. On the first point the answer is that in many cases there is no such provision. Only some of these workers have a pension scheme. We tend to think of these people as professional men, civil servants, teachers, and people in such classes, but we do not think of the very large number of non-manual workers—who will indeed, taking the country as a whole, quite possibly be a very large proportion of the total—employed in small firms who do not have security of employment, or such people may be employed in large firms without security and without any pension scheme provision. Pension scheme provisions are limited to a number of private firms, the number of which is quite small. I had occasion to do a survey a few years ago of State bodies and private firms on this matter, and I found it difficult to find a large number of private firms which had pension schemes. There is a small number throughout the country, but the proportion of employees in clerical posts who are engaged in private firms which have no pension schemes as against those which have schemes is still large. I would hesitate to put a figure on it, and I would challenge the Minister in his reply to say if the number is large. These people have no protection against redundancy.
The second argument is that not many of them would suffer redundancy and that the number that would is not significant, but this is incorrect in many cases of private firms where the clerical employees are subject to the same hazards if the business goes down as are manual employees. Even if it were true that there is not a large number in this position, the fact that there is not a large number involved seems a very peculiar reason for not including them in the scheme. To argue that individual hardship should not be relieved because there may not be many cases for relief seems to be nonsensical. I could understand the case being made by the Government that they cannot relieve an individual hardship involving a large number of people, that they cannot afford to increase the old age pension because there are so many old age pensioners. That makes some kind of sense, but to argue that the number involved would be so few seems to be an absurd argument for excluding people.
In any case where redundancy occurs of a non-manual employee earning over £1,200 a year the hardship is probably greater than for a manual worker earning the same salary, because the manual workers have unemployment benefits to fall back on, whereas the non-manual workers very often may have commitments entered into of a kind involving greater hardship for them. We know from a study of the consumption pattern of blue-collared and white-collared workers with the same incomes in this country conducted by the Economic Research Institute that their patterns differ considerably depending on the type of employment they are in. People in the non-manual category spend very much more, in some cases twice as much, on health and education than would be spent by people with the same incomes in the manual group. This different pattern would lead to much greater hardship in the case of non-manual workers because it involves school fees and things of this kind which cannot simply be overcome. This problem has been in some measure disposed of by the education provisions, but it still remains at university level, for example, and in very many cases people are carrying a very heavy burden here.
The problem of the different pattern of different health services also applies. The hardship would, therefore, tend to be greater in the case of such a person. He has no unemployment assistance to fall back on. Because the cost of including him is stated to be small, if the hardship is great and if there is no logical case for excluding him, I think the amendment is one which should have the acceptance of the Minister.
I am aware of the fact that this is a broader problem, that the Minister may say it is a broader problem and that he cannot move outside the framework of the system. He can, and in certain areas, he does. We already have different provisions for different people in different bills. We do not tie everything to the social welfare code though we do tie too much to it; and there is no reason why in this fresh start the Minister should not apply redundancy to all employees—no reason why he should confine it to those under the social welfare code.
There may be one technical reason alleged. It is the question of the amalgamation of the stamp in this instance with the social welfare stamp and indeed, I will press the Minister later to reconsider this extraordinary proposal that for one year there will be separate stamps, to the confusion of all and at great cost to firms, pending the amalgamation of the two. I suggest there should be one stamp. This will not involve additional administration because the number will be small and the extra work negligible. Most employers would be glad to settle for not having to stamp two sets of cards for manual workers even it if meant having to stamp them for non-manual workers.
I do not think the argument about stamping the cards is a valid one and even if my proposal and that of others that the single stamp for social welfare code workers and workers who come under this provision might mean a little extra work it still makes sense. We press the Minister to consider it because we do not think we should in this instance allow the social welfare scheme in its present unsatisfactory composition to determine this scheme. This is different in character for a different purpose. It is not part of the ordinary social welfare arrangements and I do not think we should be tied to them. The Minister may say the social welfare scheme is under review and that we should wait and see. That is not a valid argument and there is no reason why we should not extend this scheme to everybody who should benefit by it.
The same principle is covered in the amendments put down by the Labour Party but I must confess that my eyes are on a broader field. We are anxious that the people concerned should be brought within the terms of this legislation as a way of trying to open up the narrowness of the approach to social welfare in this country and the discrimination in this respect which is being built up against white-collar workers. It is not true, of course, that people in non-manual employment with more than £1,200 a year do not run the risk of redundancy. Unfortunately, that is not true.
I dealt personally with a case recently where the introduction of a computer would have involved redundancy for people in this category who would not be covered by this, and, quite frankly, it was only because of the strength of the union organisation in that employment we were able to say: "You can have your computer so long as no member of the established staff is made redundant; if you cannot give us a written guarantee to that effect, do not get your computer." It would work in certain instances in that way.
There are many employments where such workers are not organised in trade unions, where they are subject to redundancy in the same way as manual workers, and I do not think it is just or fair that they should be excluded from this cover. I want to draw attention to the fact—I am sure the Minister knows it—that in respect of redundancy legislation in Britain, which has been in operation some years, there is no discrimination in this respect: it applies to all workers. I think it is a good thing.
We should not continue the sort of idea that because a person is a non-manual worker earning more than £1,200 a year he is in some way in a very privileged position, able to look after himself in every way, pay for voluntary health cover and does not run any risk of sickness or unemployment or old age; and further that we regard him as not being subject to the risk of being made redundant. We all know such people become redundant just the same as manual workers, irrespective of income. Therefore, I hope the Minister will see his way to accept these amendments. I do not think there is any great principle involved except perhaps a matter of inconvenience. We have inherited it, and we continue the idea that non-manual workers with more than £1,200 a year are out of all these things. It is time we broke from that practice and I invite the Minister to see his way to accept the amendments.
The introduction of categories who are in permanent, pensionable employment is the problem that would arise in extending the scope as widely as would be done by these amendments. This is a beginning to a scheme which, as I said on Second Reading, is experimental and subject to review later. We are considering the idea of covering everybody, covering people who are in permanent, pensionable employment, people who will be contributing to it——
How do you know? Manual workers could be in pensionable employment.
I think—if the Senator heard me out—you will, by covering everybody, bring in people who will need a redundancy scheme. The alternative then is to get some class of people which will provide the main basis for a scheme that can be brought in quickly and to which can be added, in the light of experience, others marginally excluded who might appear beforehand not to need it but which could be brought in afterwards. It was mentioned in the Dáil that certain people around the £1,200 mark could suffer redundancy and be unprotected. At that time, while I did not hold out much hope for getting some broad way of classifying them and bringing them in, I undertook to look at the matter and have it examined by the Department of Labour. I found, by the time I got back with the Committee and Report Stages, that to take any effective action would postpone the implementation of the scheme as envisaged. I think it was Deputy Mullen who raised it in the Dáil and I undertook to get this scheme in action as it stands covering whoever can be covered. What we have in the Bill is a certain defined, broad class of people who will, by general agreement, be mostly in need of cover. After the scheme is in operation we can do research and consultation to find if peripheral groups just barely outside the margin could be added. I have undertaken to bring in the scheme on the 1st January and at the same time find out what grouping could be brought in without including people who will never need it and would be contributing to it which I think is not desirable.
I am a little puzzled by what the Minister says as to section 49 which I do not very much like in its present form but is designed to give him the power to exclude people in pensionable employment from the operation of the scheme. This seems to me to be its function. If I have got that right, then I cannot see why some of them cannot be excluded as the Minister has power to exclude them. Even if I am not right in that the principle of most social welfare schemes is that everybody is included even people who may not get much benefit from them. This is the case in our existing social welfare schemes. As the Minister has power to exclude people he seems to have a very weak argument. I am not clear as to why their inclusion holds up the scheme. If he simply decides to include that is that. Where is the hold-up? He is making provision for separate stamps and cards anyway. We hope to persuade him to drop the stamps but if he is——
Does the Senator want me to deal with stamps at this stage?
No, I am only answering a hypothetical objection.
Answering your own question. Section 49 gives power to change other schemes to take account of this scheme, not to exclude people from this scheme. The Senator may be thinking of the British Act.
What I shall propose when we come to it is that we should do some such thing as they have in the British Act where the Minister has power to exclude people in other schemes from this scheme or to modify other schemes so that people are included under this Bill. Whichever solution is accepted, whether it is the Minister's solution or my solution or whether you have both, the problem which he mentions can be got over. Section 49 is designed to get over it.
The Senator is hitting me with something which he says is in section 49 but which is not in it. The power to exclude people from this scheme is not in section 49 but it is in the corresponding legislation in Britain.
Yes, I may have confused my own amendment to section 49 with section 49 but I do not think that alters the fact that section 49 is to get over the problem of duplication. Therefore, if, in fact, people are covered by this scheme who do not need it, the Minister has power to change this scheme to take them out of it.
I have not. It is power to change their own schemes to take account of the national scheme.
So the Minister has foreseen this. It is great foresight.
It excludes people who would be most unlikely to become redundant. Redundancy is more likely in certain areas than in others.
Has the Minister experienced that redundancy does not occur for people with £1,200 a year?
This is to take a defined body of people. I think we have included the vast majority of people who will be most exposed to the risk of redundancy. Having got the scheme going on that basis I have undertaken to the Dáil, if it is possible, to make changes to bring in people who are excluded by the limit of £1,200 a year, people who will be exposed to risk who will not be covered by other schemes. There are the two things: exposure to risk of redundancy and coverage by other schemes.
I have dealt with coverage. On exposure to risk the Minister's explanation is that he is doing what is administratively convenient, that he is covering the great bulk of people that it is administratively convenient to cover. I hoped that in the Department of Labour as distinct from the Department of Social Welfare, and with the Minister for Labour as distinct from other Ministers, this principle of administrative convenience would give way to something closer to social justice. I know there are occasions when it is very difficult, if not impossible, to do something but I have not heard from the Minister any reason why he could not deal with these people. What is the problem?
I have to get the scheme going by the 1st January. I have to take a section of people and I am taking this section of people whom we know need coverage and who are exposed to the risk of redundancy. Later on others may be added.
The Minister has not explained in what way the others would prevent him from getting the scheme going on the 1st January. The only possible reason I can see is that this will require cards and stamps for people who have not now got them.
We will have to define classes of people too.
Why not have "employees"? That is a good enough class for anybody. If the Minister finds that this is bringing in people who are covered elsewhere he has power under section 49 to exclude them. If some are included who do not need the scheme it just means that somebody will have to pay an extra fourpence a week. This is no hardship on people who have not to run the risk of being redundant. This fourpence a week seems a small price to pay. The Minister has not explained why they must be excluded.
I should like to support Senator FitzGerald and Senator Murphy in this amendment. I, too, am not clear as to why the Minister wants to refuse this form of protection to precisely those employees who are otherwise not protected and I see no complication arising. As Senator FitzGerald says "employee" is quite clear. Not only is it quite clear but it is defined under section 2, subsection (1). Therefore, if in this section the Act is taken to apply to all employees the Minister has not got to redefine anything. He simply brings in everybody. I feel as this is a separate scheme with separate cards and stamps it becomes quite easy to include everybody. If it was a question of applying a different type of stamp or card where you would find that some of the senior workers had not got cards it might be complicated but when you are issuing cards to everybody it does not seem to me to add a complication to include all the employees. It would seem, on the contrary, to add a complication to retain the Bill in its present form and say:
"We exclude anybody who is in the over £1,200 a year category." I feel that the argument put forward that the number involved who would be subject to this risk is small is an argument in favour of including them because the extra cost would not be very great. The Minister contends, of course, that some people would be contributing who would be most unlikely ever to need the benefit. This is true of a great amount of taxation after all and the payment of rates and so on. There are all kinds of things for which the average ratepayer and income tax payer pays without there being much chance of his being a direct beneficiary. One could cite questions of health and roads and everything else in which the general principle applies that we all pay and each of us benefits in different fields. I would urge the Minister to be very careful about this and I would suggest that acceptance of the amendment will really simplify administration.
I do not know about the simplifying of the administration. I wanted to get a scheme going as soon as possible, particularly for the people for whom we have records and who can be readily identified as people most likely to be affected and who need protection. I am willing, if I find other groups who need coverage to bring them in later but, having set forth on a scheme, I do not think I can suddenly change my mind now. I have had to anticipate a lot of administration and printing of stamps and, at this stage, it would not be possible for me to bring in a scheme on 1st January and change the coverage to what the Senator wants.
I have undertaken, and I intend, to bring in other groups who should be included if there are any such groups. I am assured by a number of people who have to deal with this—employers and the unions—that most people are covered but I intend to search out for groups who are not covered and to try to find a way to give them protection. I would prefer to stay for the present at least with the coverage I started out with.
The Minister's reference to searching out for groups puzzles me. The fact is that many clerical workers, who are not liable for pension, are excluded here. The other thing the Minister said was that he was anxious that the scheme should cover those for whom the risk was greatest. The people who are likely to suffer the greatest hardship are those who are not covered by the social welfare scheme. The Minister has not adverted to those. It may be true that as a general rule clerical workers with more than £1,200 a year are in a better position than those under that figure but in regard to redundancy they will be in a worse position. Those people are most likely to be redundant and they have nothing to fall back on.
The Minister should look at all those classes of people for whom hardship will be very great and he should pick out those groups and do something for them. It seems to be unjust to pick out those groups for exclusion. I should like to suggest to the Minister if he is so far advanced towards getting a scheme going, that he would at least take the power under the section to include those people later on even if he has said he would come back to us to do so. He could take the power under this section at the moment and it would not be necessary for him to come back to the House to include those people. One does not want to give Ministers more power than is necessary. I know the Minister said that he has undertaken to bring in legislation to look after those people but it would be better to give him power to do so now.
I have undertaken to look after such groups by amending legislation. I think it is much better to do this by amending legislation rather than any other way. As I said, I have undertaken to bring in amending legislation if I find it is possible to bring in those people.
We can appreciate the Minister's immediate difficulty in this matter but it will hold things up longer if he has to come back with amending legislation. We know how long legislation takes to get passed. If the Minister has an open mind in regard to those people he should consider, if he is not prepared to accept this amendment now, bringing in an amendment of his own on the Fourth Stage so that he can get this power now.
I am surprised at what the Minister says. I have read section 47 and I find that here the Minister is given power to extend the provisions of the redundancy scheme to employees, even where they are excluded under section 4, which we are dealing with at the moment. The Minister has mentioned that there are special groups such as dockers and the like. Could the Minister tell me if section 47 gives power to him to exclude from this scheme people who are not fully insured under the social welfare schemes and are, therefore, excluded from stamps at the moment?
It is the other way round. There are classes of people to whom the general principles of the Redundancy Bill could not apply. Dock workers are one such class and also in this category would be hotel workers, agricultural workers and those people for whom special schemes suitable to their type of movement in employment and their general needs would be desirable. A question arose in our discussions with the employers and the trade unions as to whether the classes I have mentioned should be included in the main scheme or whether special schemes should be introduced for them. My decision was that it would be better to have everybody like that in the main scheme until such time as special schemes are worked out. Section 47 is for the purpose of removing such groups from the general scheme when they have got their special schemes arranged, from the operation of the main scheme. The section is not designed to bring people into the scheme who are not now included.
That is what section 47 says:
The Minister may, in respect of a class of employee excluded from this Act by section 4 or by an Order made thereunder and after consultation with representatives of employers . . . . prepare and cause to be carried out a scheme providing in accordance with the terms of the special redundancy scheme for redundancy payment to employees of that class.
I was hoping, even though the Minister was not going to accept our amendment, that he would say that he would take power in this legislation to do this.
There is limited power.
I should like to support Senator Murphy here. I think both the Minister and I momentarily forgot to advert to section 47 and Senator Murphy very helpfully directed our attention to it. Section 47 refers to people who are excluded under the Social Welfare Acts, part-time workers and relatives. Section 4 excludes people who are not insurable under the Social Welfare Acts. This also refers to part-time workers and relatives referred to in subsection (3) (b). I can find no other people excluded. The Minister has said that the purpose of section 47 is to refer to certain classes of workers but those classes of workers are not excluded under section 4. It only excludes nonsocial welfare workers, part-time workers and relatives. The fact is that the only people whom he can include in section 47 are those people I have referred to. I would ask the Minister to tell me if I am wrong in that. It seems to me that section 47 gives the Minister power to include all those people who are not beneficiaries under the Social Welfare Acts. Any other interpretation of this section makes nonsense of it.
I started off with my intention that persons for whom a special scheme was prepared under section 47 would be excluded from the scheme by Order and that is what the draftsman did. This section refers to people for whom we will bring in a special scheme and we will then exclude them from the main scheme. Section 4 says that:
This Act shall apply to employees employed in employment which is insurable for all benefits under the Social Welfare Acts, 1952 to 1966 and to employees who were so employed in such employment in the period of two years ending on the date of termination of employment.
That is to include people. Subject to this section the exceptions I mention here are subject to the special scheme people and this Act will apply to people for all benefits under the Social Welfare Acts. The Act shall not apply to persons who are normally expected to work for 21 hours a week. These are the subject of this section and section 47 refers to people to whom special schemes apply. The main part of section 4 is that the Act will apply to people for all benefits under the Social Welfare Acts. This is the draftsman's translation of the law and I am sure he has done it right.
Section 47 says——
Do not run too fast.
Section 47 says:
The Minister may, in respect of a class of employee excluded from this Act by section 4 or by an order made thereunder——
Stop at that—people included by section 4.
Who are they? There are three classes.
With the exception of this section and section 47; subsection (2) of section 4 states:
This Act shall not apply to persons who work, or are normally expected to work, with the same employer for less than 21 hours in a week.
These are the people I referred to there.
Part-time workers or the relatives in subsection (3) (b). Why can you not bring them under the social welfare class?
They are in. They are people included in all persons under the Social Welfare Acts.
The people are excluded and subsection (47) gives the Minister power to include. Therefore, section 47 gives the Minister power to include people who are not covered by the Social Welfare Acts.
This is the translation by the draftsman of my intention. This is a job for a lawyer to interperet.
The Minister is piloting legislation through the House.
The interpretation is made by the lawyers who drafted this.
I think the draftsman has given the Minister power.
Once the draftsman is on that side of the House.
Section 4 says:
Subject to this section and to section 47 this Act shall apply to employees employed in employment which is insurable for all benefits under the Social Welfare Acts. . . .
It is in that subsection that there is this reference to section 47. If it does not mean the Minister has power to bring in all benefits under the Social Welfare Acts what is the purpose of the reference to section 47 in subsection (1) of section 4? It is not in subsection (2) or (3) but in subsection (1) of section 4. To my mind subsection (1) can only mean that people who are not suitable for all benefits can be brought in. I expect that is what the draftsman has done.
The legal interpretation will now be that it will limit the operation of section 47 to subsection (1).
My intention was to have provision for everybody insured for all benefits under the Social Welfare Acts. There were discussions with employers and trade unions and I had to make provision in relation to special schemes for certain classes from whom the General Scheme might prove unsuitable. One point of view was that you should exclude people who were in agriculture who could not benefit and for whom the main scheme was not suitable, and to make a special scheme later on. The other point of view was to put them into the scheme because if these were in the general scheme there would be pressure to have a special scheme made for them. My intention was to make a special scheme to include them later on. I think, having listened to the House, that the original idea of excluding them from the general scheme with power to take them in, if I am not too confusing, rather than, to exclude them in anticipation of special schemes being prepared was probably what was in the draftsman's mind. I shall bring it back to him.
We have gone away from the main trend of the amendments——
We could leave this section for discussion later. The reason section 47 was referred to now was to show I had power which the Seanad were offering to me and which I do not want. We are dealing with section 47 and I will see if we get through it tonight and have it explained.
It has been mentioned that people who are in pensionable employment because of this are excluded from the risk of redundancy. This is not so at all. The fact that they are covered by superannuation has nothing at all to do with the risk of redundancy. Normally the pension or redundancy schemes do not cater for persons who are made redundant. Under the more modern schemes they can transfer the right where this has been agreed beforehand. They do not provide for giving a person a pension because he becomes redundant. The more modern schemes provide that he may leave his money, freeze his rights until he becomes of pensionable age. It does not cover where he becomes redundant. If he takes his money out of the fund he loses all rights. That people are in employment is no answer to the risk of redundancy.
There are two groups about whom I am concerned. We have, for instance, people who are employed in large departmental stores and have been exposed to the risk of take-over amalgamations. We have seen where people have moved in the taking over of firms and the middle management who would be excluded from social welfare insurance are the people who are let go. They are simply thrown out of employment after years in a particular job. The fact that this happened before there was a redundancy scheme and that we could not do anything about it indicates that we should try to provide cover for such instances in future. Another group particularly affected are commercial travellers. Again you have these amalgamations of businesses whose lines have to be sold by various people and commercial travellers are made redundant. I am told that it happened here with local firms and unions could not deal with it. They say they are powerless where the firms concerned are cross-Channel or foreign undertakings. They cannot deal with the problem created by redundancy at all.
These are types of people whom we are excluding under the Bill as it stands and I am suggesting to the Minister that he would look quickly at this problem. I have given up in despair the idea that we will persuade him to agree to our amendments this afternoon, but I was hoping that before he would say that he would bring in legislation at a later date he would take power in this Bill to bring in such people subsequently, rather than to have legislation which would tend to take a considerable amount of time.
Amendment, by leave, withdrawn.
Amendments Nos. 5 and 6 not moved.
I move amendment No. 7:
In subsection (2), line 43, to add at the end "unless their earnings from such employment exceed five pounds per week".
We are on tricky points here in section 4 subsection (2). We have a number of different problems only one of which my amendment attempts to deal with. The problem of part-time workers is very difficult, but I do not think that in its present form the Bill is flexible enough to cover that. I am not convinced that my amendment is sufficient to remedy it, but I hope that out of this discussion the Minister might take thought and knock into shape for the Report Stage something that would get us out of the difficulties involved.
I spoke on Second Reading about part-time workers who, though working only certain hours or days per week, are nevertheless regular employees of the same employer and obtaining from this employment their principal income, so that if this employment ceases they lose their regular employment and would be in the same position as would be any full-time worker. I instanced the case of workers who were highlighted in the Drogheda Employment Survey carried out by the Minister's Department which showed that a significant proportion of the unemployed there were in regular employment quite legitimately and in some cases working for the same employer for up to 20 years. I was concerned lest some of them should be excluded from the operation of the Bill through the figure of 21 hours being too high a figure, reduced by the Minister from 25.
I still think that there is a problem here. I did not decide to meet it by putting down an amendment reducing 21 to a lower figure, but I have put down an amendment to qualify this less than 21 hours by saying "unless they earn more than £5 a week" to bring them back into the scheme. Five pounds a week is an arbitrary figure not necessarily well chosen, and I would like to hear some of my Labour colleagues on this point, but I just put the figure in order to raise this issue, to bring back part-time workers in the category I mentioned, people who are not just low-paid part-time workers earning some supplementary income, perhaps married women, but people who are, although part-time, earning a sum of money on which they manage to exist, perhaps with unemployment benefit. I wonder whether the Minister will consider an amendment of this kind. I do not press £5, and perhaps a higher figure would be better, but it struck me that possibly we could get around this difficulty and get back into the scheme part-time workers who are nevertheless regular employees who would suffer severely if they lost that regular employment upon which they depend for the greater part of their livelihood.
There is another problem which I have not coped with that I must mention at this point, and which may be dealt with more satisfactorily on the section, with regard to married women, and to employers who employ married women on evening shifts in many factories. It is common practice in many factories now, with a shortage of single workers, for married women to come in perhaps from 6 to 10 p.m. and work four hours a night on five or six days a week, up to perhaps 25 hours. Under the provisions as they stand, and even with my amendment, those married women will be included in the scheme. From the employers' point of view it is unsatisfactory that this should be so. They come in under a loose system, recognising that they may have domestic problems and that if a child is ill or the husband insists on taking his wife to the pictures, the employer will accept a certain irregularity of attendance. He pays them weekly according to the hours they work, sometimes varying considerably. Under this Bill the employer will be required to keep precise records year after year for these almost casual employees, which is going to impose an enormous burden on him in respect of a whole category who should not be entitled to redundancy payments and for whom this scheme is not designed.
I do not know the solution to it, but this is a problem which must be considered. It has been brought to my attention by a firm in this position and which says that it is faced with an enormous problem regarding the number of hours worked by each of a number of women coming in rather haphazardly and keeping these records up to date to establish at some point in the future whether one out of 200 may conceivably be legally covered under this provision. The Minister will have to find some way out of this problem. It is absurd that a firm should be put into this position and should have to maintain extensive records for the sake of the one rare individual who will be brought into the scheme, which is not intended for cases like this.
Perhaps the Minister ought to be able to exclude from this category by means of an Order, so that if employers made representations and, after consultation with the trade union in the matter to ensure that no hardship was involved, he could exclude such a category. Otherwise he creates very severe difficulties for industries which have found satisfactory this very flexible method of increasing output and supplementing the earnings for families. This evening shift for married women may not be the ideal way of bringing up the family income, but it is quite a useful system, and it is operated humanely and flexibly by employers, and it is a pity to do anything to discourage it or make it difficult for the employers to work. I would appeal to the Minister to consider what powers he might take to deal with this, either by precise amendment of the subsection or by giving himself power to vary by Order, so that in addition to pressing the particular amendment designed to bring back part-time workers who are effectively earning their livelihood from regular part-time work, I am also pressing him to do something to get out of the difficulty of bringing into the scheme these married women working on evening shift.
There seems to be a contradiction here between subsection (1) and subsection (2). If I understand the law correctly, if an employer employs someone for 21 or even for 7 hours a week he must insure those people under the Social Welfare Acts.
I intend to consult the draftsman about this matter. I wish to refer to section 4 as related to section 47. Subsection (1) refers to the group covered for all benefits under the Social Welfare Acts and there are several exceptions which are referred to in subsections (2) and (3). If these were not there, then all the persons mentioned in the earlier subsection would be covered; but they are excluded specifically by the following subsections of section 4. Section 47 gives the Minister power to bring into the scope of the Bill people specifically excluded by section 4. I have a doubt in my mind about the drafting. Does subsection (1), as contened by Senators, which includes person covered for all purposes, make exceptions of people not covered for all purposes? On the other hand, does section 47 include people specifically excluded by the subsections of section 4?
I see what the Minister is getting at. I rather regret that we alerted him to the draftsman's error, as a result of which he will do the reverse of what we wanted him to do.
Senators believe that subsection (1), by including people covered for all benefits, therefore excluded people not covered and that this exclusion is also referred to in section 47. This I do not believe, but in case it is necessary for the draftsman to say it specifically I will ask him. I think that what the draftsman has done covers what I have asked him to do. It would be a matter for a lawyer or somebody else to interpret whether by including a particular group you exclude another group, whether they are specifically excluded or not.
The Minister's contribution is welcome in that it clarifies what we are troubled about but he is not talking about the amendment before the House.
I will deal with the amendment. The contradiction does not exist. Those who are excluded are specifically mentioned classes under subsection (1) except for those specially excluded by subsections (2) and (3).
The Minister's point relates to a previous discussion. The point on which he hangs the relevance of his intervention is a different point altogether because what has been said by Senator FitzGerald is that subsections (2) and (3) are contradictory. We require "notwithstanding" inserted before subsection (2) to get us out of the contradiction to which Senator Fitzgerald referred.
Senator Fitzgerald saw contradiction between subsection (1) and the following sections, not between subsections (2) and (3). Subsection (1) includes everybody covered for all benefits and subsection (2) excludes people who would not be so covered. If it were not there, such people would be included.
"Notwithstanding the provisions of subsection (1)" would get over that.
"Subject to this section" means the subsections of this section. It is not subsection (1), which would make room for such exceptions. As introduced in the Dáil, people were normally expected to work 25 hours a week or more. I arrived at this figure after discussions with employers and trade union representatives who generally felt it would exclude married women who work at night. The employers thought such people would be excluded by this and as a result of what happened in the Dáil I do not think I have made them happy. Most of the women would work fewer than 21 hours a week normally. Some weeks they might work more and others less. What they normally do is what is covered.
That is the point. Must such employers then keep records to find if some women inadvertently get in?
I see the Senator's point now.
The figure is such that any women might get in and the problem immediately arises.
There is the phrase "is normally expected to work".
If a woman does 4½ hours nightly five nights a week it amounts to 22½ hours.
"Normally" was inserted so that an employer would say to an employee: "Normally I expect you to work for me 19 hours a week". The purpose is to exclude people who should not benefit. The Senator argued to a different purpose.
On two different points—trying to leave in men and to leave out married women.
The purpose is to make every case watertight.
Perhaps we can set about solving the difficulty now.
The type of person who works fewer hours than 21 would be in subsidiary employment—it would not be his main employment and not normally continuous employment for four years as required by the Bill. It would be unlikely that such people could benefit. I do not know if a man working fewer than 22 hours a week steadily in a position would be regarded as being engaged in his main employment. It would be subsidiary.
Subsidiary to unemployment, surely. I refer the Minister to the Drogheda Manpower Survey. I cannot recall the details—I do not think the survey gives details —of the number of hours worked but it referred specifically to the fact that a substantial proportion of the male employed—20 per cent—were employed not at the date of the survey but in the interval, at the time when they were on the register, and were legitimately employed by one employer and in some instances had been up to 20 years or more in that particular capacity. That was their only employment.
Fewer than 21 hours a week with the same employer during 20 years? I do not remember it being that tightly widespread.
It is one of the most striking figures in the survey. One of the most striking findings was that people on the unemployment register had been legitimately employed during 20 years or more— it was their only employment and it was sufficient for them to get unemployment benefit. It was giving them what was regarded as a livelihood. According to this survey they are not and do not regard themselves as available for any other employment. If we carry out surveys in this country—and the Minister is to be congratulated on the fact that he inherited this survey and that his Department has published it and has shown an interest in it; but his Department is, I think, the only one showing any interest in social research—let us do something with the conclusions.
This is now a debate without the facts, without the book.
We will get the book.
Are those people working for the one employer for the purposes of this Bill? Anyway if we have to make a law in the Seanad to cover everything it will be a problem.
What we have to do is make legislation to fit the human needs——
No doubt.
——in so far as it is humanly possible. If the Minister can say that it is not humanly possible, then the human needs must be covered by charitable or some other means. However, if he can suggest a mechanism—and my suggestion for a mechanism is to take a figure of x pounds per week of such a character that in conjunction with the less than 21 hours a week the only people who would be covered would be in the category of dockers or somebody whose employment is of its very nature part-time and irregular but who can earn in less than 21 hours over £5 a week and who is not, therefore, in the category of the ordinary part-time worker. Select a figure, perhaps higher than £5 a week—I am not anxious to press this particular figure—so as to bring in such a category of people to the scheme while at the same time excluding people who are genuinely part-time and in subsidiary employment. If you take a figure of such magnitude in conjunction with the part-time character of the employment, clearly this is the man's main employment and if, in any event, he can only be brought in if he is with the employer for two or more years——
Four years is the qualifying period.
The Minister is not going to burden the fund very much but he is going to relieve cases of hardship where a man is over 20 years with an employer in his peculiar part-time capacity and who loses his job——
Is declared redundant.
Quite, and this can happen. The hardship is just as great as in the case of the man who works six days a week instead of two. I do not see that the number of hours alters the hardship. Therefore, I have suggested a mechanism to get over this difficulty. I am not suggesting that the Minister should accept my amendment. Apart from anything else, I do not think I gave him adequate notice to examine it fully but I would ask him to take my point away and consider it between now and Report Stage. I have a genuine point here as can be seen by reference to the Drogheda Manpower Survey. This is a point that might be met by a mechanism such as I suggested and if that can be done without too much expense or administrative difficulty I think it is worth doing. I would also suggest to the Minister to have another look at this point with regard to married women. The clause here in the Bill says:
The Act shall not apply to persons who work or are normally expected to work with the same employer for less than 21 hours in a week.
I am rather puzzled by the wording. It did not strike me that there was an ambiguity here until the Minister replied to what I said a few minutes ago. Suppose a person works for 19 hours a week but is expected to work for 22 hours or vice versa, is he included or excluded?
Vice versa. If he is normally expected to work 22 hours he would be in.
But it says: Or is normally expected to work. Suppose he is not expected to work for more than 21 hours?
The intention is to get the average. It is not one week's work.
Does the Minister take my point? The phraseology:
Who work, or are normally expected to work
the grammatical formation creates a problem when it is related to a negative. Is it intended to say: "The Act shall apply neither to a person who works less than 21 hours a week nor to a person who is expected to work for 21 hours a week?" Is that what is meant? In its present form it is completely ambiguous and I think it would need to be looked at.
I can tell the Senator my intention. There are people who work normally say, 19 hours a week and some weeks they may go up to 22 or 23 hours but they would normally expect a week to be about 19 hours. By going over this figure they would not come under the scheme.
That seems a reasonable intention but I do not think it is fulfilled by the wording.
I shall deal with some of what the Senator said because if he goes on too long I will have forgotten. I think I have forgotten now. The first thing is the Senator would like me to be able to bring in this type of person. If it is proved from the survey or any other source of information that such cases exist and should be covered I think this is one of the things I can do by Order.
Subsection (5) reads:
Notwithstanding subsection (2), the Minister may by order declare that this Act shall apply to a specified class of worker and from the commencement of the order this Act shall apply to that class.
Therefore, I can make an order to bring people who are specifically excluded in and what the Senator is asking can be done if we can find from the Drogheda Survey or any other source that it should be done. The only doubt remaining is in regard to the implied exclusion under subsection 1.
We will not go over that one again.
Anyone who is specifically excluded under section 4, subsections 2 and 3 can be brought in under subsection 5.
Is the Minister's contention, therefore, that in so far as I am correct in thinking there is such a group that he will examine this possibility.
Yes, if it is proved.
Might I suggest that he would consider their inclusion not only as a class in the kind of sense which I think he has in mind such as dockers or other occupations but would consider as a possible mechanism of inclusion the one I mention? I ask this because I think my approach could cover a multitude of odd individual cases. I felt the Minister meant to cover an occupation and that he did not think it could be used in the sense I have suggested of so many pounds a week criterion. I would be a little bit unhappy about withdrawing my amendment and leaving it to subsection 5 if I thought this were so. I would be glad to have his assurance that he would feel himself empowered by subsection 5——
I would be disposed to do what the Senator wants if I find evidence that it is necessary and I have the power to do it.
Mr. Garret Fitzgerald
The Minister feels he has power to include people not merely as occupational classes but as all those earning more than £5 per week?
Yes, I think so.
The Minister could make them a specific class?
Provided class of person can be specified. Perhaps it could be as defined by the Senator.
I am not asking the Minister to commit himself to do that but I want to make sure he feels he has the power to do it.
If I feel it should be done I will do it.
On the question of married women——
My information is—I have got this from the people dealing with them—that the 21 hours would exclude most of those married women engaged in jam-making and similar kinds of occupations. They would be excluded by this 21 hours. Where else can I go for information except to the people who are familiar with the position?
Some of the people seem to have come to me instead of to the Minister. There is a very genuine problem because I have been approached by a large enterprise who have this problem and who say that the 25 was all right but that the 21 gets them into trouble. The Minister would need to look at this from that point of view and see whether some provision can be made for excluding this group so as not to create this difficulty.
They were happy about the 25 hours and I changed it to the 21 hours.
The Minister now has them unhappy. While I do not suggest that there is reason for going back to the 25 there is reason for trying to mitigate the unhappy situation which the Minister has created.
The Labour Party asked me to bring in this 21. I think the 21 does more good than the 25 but even this is not pleasing to everybody.
I appreciate this. The Minister might look into this between now and Report Stage and see whether there is any way of excluding this particular group.
Then you would have to exclude many women who would be depending on this employment for a livelihood.
If I had this point put to me in time I would have put down an amendment. As I cannot suggest what solution there is to this, I would ask the Minister to look at this between now and Report Stage and see whether there is any power he can give himself which would enable him to cope with this particular problem.
I could cope with it all right but it might not satisfy everybody.
Amendment, by leave, withdrawn.
Amendments Nos. 8 and 60 go together.
Government amendment No. 8:
In subsection (3) (a), line 45, to delete "as a domestic servant".
This amendment refers to section 4 (3) (a), which provides that for the purpose of the application of the Act to domestic servants the household in which any domestic servant is employed shall be regarded as a "business".
In the Dáil on Report Stage Deputies from the Labour Party sought to widen the scope of the Bill to include such people as gardeners, maintenance workers and others who are employed with private householders. At the time I did not think the amendment was necessary. I was satisfied that the Bill was all right without it but I undertook to have a look at it.
Senator Miss Davidson raised the point on the Second Stage of the Bill also. I have taken this amendment to remove any doubt about the matter by deleting the words "as a domestic servant" which will make the subparagraph in section 4, (3) (a) applicable to every employee who is employed in a private household. I think that covers Miss Davidson's point.
Yes.
Amendment agreed to.
Amendment No. 60 is consequential?
We will deal with amendment No. 60 when we come to it. Amendment No. 9 has been dealt with.
Amendment No. 9 not moved.
Question proposed: "That section 4, as amended, stand part of the Bill".
I want to go back to a point on the section about which I am not happy. The Minister asked me not to develop it because I had already developed so many points he was afraid of losing it. I do not think the word "or" fulfils the Minister's intention of subsection (2) which states:
This Act shall not apply to persons who work, or are normally expected to work.
I think from what the Minister has said during the course of the debate on the amendment that his intention would be fulfilled if "and" was inserted here instead of "or". The Minister's point was that it is not sufficient for people to work 21 days but that they would be expected to work at least that number of days. I am afraid with "or" in a negative clause that it renders the thing meaningless at best and ambiguous at worst. I suggest that the Minister might have a look at this between now and Report Stage. It does not worry me but it might come to worry him at a later stage.
The other point is that when we were discussing this matter we mentioned a particular document. I asked a colleague of mine to get a copy of it in the Library. He has now come back with the extraordinary statement that it is not there because it is not a Government document. My copy has printed on the front of it "Department of Labour". It is ridiculous that the Library of Dáil Éireann has not got a copy of such an important document.
It was done by the university. We published it for them.
I am aware it was done by the university.
I will get a copy.
I think it should be in the Dáil Library. I cannot understand the procedure of having the Government publishing this and it is not in the Library.
We published it. I will see that a copy is procured.
Question put and agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill".
It just occurs to me that this is a very desirable section for the laying of certain draft orders before the House and for getting approval. It also occurs to me that in a number of other places in the Bill there are regulations as in Part III, sections 36, 57 and 58 but I am not sure—perhaps the Minister might be able to indicate this to me—whether those regulations will be laid before each House of the Oireachtas. There are also regulations to be made under section 29. I would not expect to find this in Part I of the Bill.
Many of those regulations will be laid before each House of the Oireachtas. Section 5 deals with matters which would be fundamental and which should not be made by regulation but should go through by discussion.
I appreciate that but I cannot very readily find a general section saying that other regulations will be laid before each House of the Oireachtas.
The intention is that they should be. This is quite a different matter.
I quite agree.
Question put and agreed to.
SECTION 6.
Amendments Nos. 10 and 36 go together.
I move amendment No. 10:
To add to the section:
"‘suitable employment' shall mean employment that on balance is no less favourable to the employee than his previous employment with that employer".
The purpose of this amendment is to establish clearly what is meant by suitable employment. In this Bill I cannot find the exact place where it is defined; perhaps the Minister can direct my attention to the place. The words are used in the context that if a man is offered employment elsewhere he cannot get redundancy compensation. "Suitable employment" is not defined. One man's idea of suitability may differ from another's. There seems to be a good solution to the problem. I suggest that:
Suitable employment shall mean employment that on balance is no less favourable to the employee than his previous employment with that employer.
On balance some employers might be less suitable. The employment might involve less pay or longer hours or shorter hours with less pay. On balance, it makes it a reasonable amendment and one that can be workable. Some definition of "suitable employment" is required so that we can ensure that there is not hardship and that we make sure that a deciding officer has something to go on as to what is suitable employment. I should be glad to hear the Minister on this.
I do not know that it is desirable to bring the definition of "suitable employment" which would be open to dispute in any event. My intention was that if an employer offers an employee alternative employment the employee will want to accept this alternative employment for the sake of being employed and keeping his continuity. If he feels it is not suitable to his skills or that it is a distance from his home, or there may be many reasons why he might not accept it, then he could dispute it through the appeals machinery. This would be a better way than having a definition in the Act that is suggested.
I must say the Minister has a nerve in saying that my definition is imprecise. Suitable employment could mean anything to anybody. It need not mean that it is suitable to the employee and is not something which suits the employee in a sense that satisfies him. Otherwise he would not go to the appeals machinery. It may be that the right answer would be not to put it in, but to amend suitable employments where they occur.
In section 15.
In section 15 (2) (c). It may be that the correct answer is to change the vague form of "suitable employment" along the lines of something we have here. In subsection (2) (c) it says:
the offer constitutes an offer of suitable employment in relation to the employee,
The Minister cannot seriously suggest that my definition is vague by comparison with his.
I would rather leave it open than have a definition which is imprecise. I discussed this in the Dáil and my way of doing it would leave it to the employee. He could appeal on this basis that it is not suitable for his skill, too far from his home, the income lower than he had before. There are many bases on which a reasonable tribunal would listen. The Labour Party, at any rate, agreed with me in the Dáil that making a definition of the suitability of employment could prevent an employee taking up a job which paid less rather than go on unemployment. We should leave it to the employee and the Appeals Tribunal.
I am inclined to agree with the Minister. If you read the section you will see that subsection (c) is the one we are talking about in section 15. Subsection (b) goes before it and it says:
the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before his dismissal.
You are writing this into the Bill, and you go on to say you have constituted an offer of suitable employment. Any tribunal might ask if this is suitable employment. The section says that it may differ wholly or in part from the previous employment. You could have a skilled craftsman who is redundant and you offer him a job to sweep the yard. It differs in whole or in part but that is the job and he is entitled to redundancy. Subsection (c) would be all right if (b) were dropped out. It seems to confuse the issue for the tribunal. In sub-paragraph (c) of section 15 you are talking about ". . . the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding conditions of his contract enforced immediately before his dismissal." I am worried about subsection (2) of section 15. It is related to the very point we are discussing in Senator FitzGerald's amendment.
It is encouraging to see this early rapprochement between the Minister for Labour and the Labour Party as he is now relying on what the Labour Party had to say in the Dáil on this matter.
That was before last weekend.
There is this encouraging rapprochement.
I assumed they were speaking for the workers.
We all are.
We should come to section 5.
What does the Minister think most of the interventions are about?
The people who spoke were trade union officials.
I give the Minister my own experience in relation to the workers. For a long time I represented the workers on the Labour Panel of this House. I would like to call the attention of the Minister to a precedent for this. I do not believe at all in this business of leaving this to the judgment of an appeals tribunal as the reason for this being left in the Bill because one can find perhaps a bad case being made at an early stage by some worker which will be used as a precedent at a later stage to prevent hardship from being dealt with sympathetically. I wonder has the Minister considered what was done under the Transport Act of 1950 and, indeed, under the Transport Acts from 1944 on. The Transport Act of 1944 and the Transport Act of 1950, which is still in operation, had to grapple with the creation of redundancy by reason of amalgamation of companies, of dieselisation, and so on. It set itself out to deal with something that is analogous to this and it did set out what is deemed to be unsuitable alternative employment in section 47. In this we are given what would be a worsening of conditions of employment. It says:
Where an officer or servant of the Board, shall be deemed to suffer a worsening of his conditions of service as an officer or a servant of the Board if, by reason of the transfer effected by section 36 or, in case he is transferred, without his consent, by the Board from one position to another in its service, by reason thereof he suffers any direct pecuniary loss or is in a worse position in respect of the conditions of his service as a whole (including tenure of office or employment, remuneration, gratuities, superannuation, sick fund or other benefits or allowances, whether obtaining legally or by customary practice and whether applicable to himself or his widow or children or other dependants) as compared with those obtaining in respect of him before the transfer.
That is the way it was written into section 37 of the Transport Act, 1950. I think that Senator Murphy will have had a good deal of experience of this and would agree that that was a good guideline for the various employees and for CIE, and afterwards when it came to the arbitrator who gave a decision it was a good guideline. We have here the ingredients of what would be suitable or unsuitable employment if we have a look at section 27. Time was when the Minister, if he was part of the Department of Industry and Commerce, would probably have paid more attention, perhaps, than he does now to the 1950 Transport Act. I think that a little more indication as to what should or should not be regarded as suitable alternative employment should be written into the Bill along the lines of section 37. I commend this section, and I think that Senator Murphy will bear me out when I say that it worked reasonably well and provided a reasonable guideline for employees, the Board of CIE and the arbitrator in times gone by.
I do not know if I can persuade the House. We concluded in the Dáil discussion that if this definition were precise it could work to the disadvantage of the employee. If his old job or a job exactly the same is not available, and alternative employment is offered which might not be exactly what the employee would like, at least it is better to give him an option, and if the amendment is accepted his options might be limited.
It is not as easy as that, because he does not have the option of taking it or taking redundancy pay. He refuses, and then he has a chance before a tribunal which will decide whether he was justified in refusing. It is very difficult to advise any worker in a position like this and to say "Right, refuse it and we will probably sustain your case at the tribunal that this was a reasonable attitude on your part to refuse that job." It would be very difficult, with subsection (b) in the same section. That is what worries me. If we went back to it on the Report Stage perhaps the Minister would look at it, because I do feel, and the lawyers whom we have here now might be able to help us here, that any tribunal reading this must have regard to the whole section, and subsection (b) is pretty wide.
I think it means that in the event of their differing wholly then subsection (c) would come in. The offer would have to be suitable in relation to that employee. There is no other way of interpreting it to make it sensible. I have an open mind on this, but after discussion the final conclusion reached in the Dáil was that it was better to leave it open to the employee to say that he will take that job, and if he thinks it is not suitable then there is machinery available to decide any dispute.
Where you are dealing with the situation where the job offered is the same job——
There is no problem there.
No. He has to accept it, and if he does not he is not entitled to the benefits of the Bill.
If it is a different job then subsection (c) comes in.
In talking about a different job I feel that we should be as vague as possible in this respect and say that if he refuses it as not being reasonable in relation to his former job he is entitled to redundancy pay. That is not what we are saying. I think that what we are saying is that the job can differ in whole or in part.
But must be suitable in relation to that employee.
No.
If you read subsection (c).
But subsection (b) says that the job can differ wholly. He can chance it and say "I am not taking it" and chance that he will be upheld. I think that this is too vague, and I do not think that the Minister wants that sort of situation. None of us want it. Senator O'Quigley has referred to the danger that a tribunal may decide on a case not properly argued and then that tends to set a headline. That operates in Northern Ireland and in Great Britain. They issue guidelines or something like that, giving important decisions, and these are used by the tribunals considering similar claims. We might have a situation where you would get into the situation like that. Perhaps the Minister would look at it again.
What Senator FitzGerald's amendment would do is that instead of "suitable" you would have "employment no less favourable to the employee". That is again a matter of opinion, on which there might well be a dispute also.
Of course, there would be a dispute, but at least under my amendment it is clear that the criterion for settlement of a dispute would be the interest of the employee. The word "suitable" is a word that I have not come across before in legislation. It seems quite an unsuitable word because of its vagueness. I might think that the status of a member of the Opposition would be suitable to the Minister but the Minister might not think so. What do you mean by suitable in relation to the person? It is not what suits the person, which would be a subjective criterion. We cannot allow a person to decide entirely for himself, but suitable immediately raises a subjective issue of whether it suits him or he is satisfied by it. It is vague to the point of not really offering any guarantee to the employee's advantage. I am open to suggestions for improving my amendment, but at least it establishes that the criterion for each job is whether it is advantageous to the employee or not. I do not think that that ties it down too much. I am very unhappy about the use of the word "suitable" in this context.
Some of what Senator FitzGerald has said I think was a good argument against his amendment. He suggested that the word "suitable" might mean something that satisfied the employee. That, I think, is the strongest case that one could make for the Bill as it stands. If you say, as in this amendment, that the employment should on balance be no less favourable to the employee, to my mind the criterion you have to work out would be favourable in the sense that would be decided by people outside, other than the employee.
It will be decided.
If you offer a man who lives in Ballyfermot a similar job in Belmullet, then is it equally favourable or more favourable? On the other hand, if you leave it as it is in the Bill the man is entitled to go to the tribunal and say: "It is not suitable. Why should I move off my family who are at school?" He can claim it is unsuitable in the sense that it does not satisfy him. It should be as open as possible so that the employees can go to the tribunal and say: "I know the wages are as good and the conditions are as good but for those reasons I do not want to take the job." Once you lay down definitions of this kind it is also open to the employer to say that his offer is not less favourable, and the employee must accept it. From the point of view of the employee it is much better to leave it as it is.
I take the force of the remarks of Senator Yeats. What he says is true but the use of the phrase in the Bill does not necessarily carry with it that connotation. I agree that it could, and I should be quite happy if the criterion was that the employee was satisfied. It might be interpreted not necessarily in that sense at all. On the other hand, I see the strength of the Senator's remarks and I should like to hear the Minister finally on whether he prefers the present wording and thinks it is best.
The intention was to make sure that the employment offered would favour the employee. There is more to it than income. There is the skill of the employee, the distance travelled; and elsewhere in the Bill the question of what constitutes an offer of suitable employment by the exchanges arises. In order to favour employees, we put in the words "suitable in relation to the employee". This brings in the wider idea of what the employee might find acceptable or unacceptable—something apart from the wage level. With the tribunal in existence I think it is as nearly perfect as we could get it.
I accept that the balance of the argument is at worst evenly divided and at best on the side of the Minister.
Amendment, by leave, withdrawn.
Question proposed: "That section 6 stand part of the Bill".
One point that slightly disturbs me is the use in relation both to the lock-out and the strike in this definition of the word "compel", suggesting that either of the parties or both would compel either the workers or the employers to yield to the representations of the other side. I prefer the word "persuade". It may be that the realities of the situation demand compelling but it seems to present a deliberately antagonistic point of view, a suggestion that the worker, on the one hand, or the employer on the other, is not open to persuasion and that the strike or the lock-out is for the purpose of forcing the other party to do the will of the first party.
The other point I wish to make on these definitions is that I sought for some time to get the implications of the words "lock-out" and "strike". I read carefully sections 13 and 14 and found myself referred back to portions of section 12. I noticed, for instance, that in section 13 (4) (b), the wording is: "No account shall be taken of any week for which an employee is laid off or kept on short-time where the lay-off or short-time is wholly or mainly attributable to a strike or lock-out", and so on. I am reminded of the bus strike in Dublin not so long ago when the workers struck for one day in the week. The short-time there could not be said to be either wholly or mainly attributable to the strike, but the company promptly said: "We will lock you out for the rest of the week"; whereby the lock-out or short-time became wholly or mainly attributable to the strike or the lock-out.
It seems to me, therefore, that the whole question of the definition of a lock-out, linked with its implications in another section of the Bill, has to be considered carefully in view of the fact that it is recognised in the definitions themselves that this is for the purpose of compelling acceptance on one or other party. I am not sure we are not introducing something here that goes beyond what the Minister has in mind in a Redundancy Payments Bill, which is for the purpose of making relationships between employer and worker smoother rather than less smooth.
Compel—any trade unionist agrees the purpose of a strike is to compel——
To persuade.
The Senator is very simple.
I do not know whether the euphemism would improve the situation. I will look into it between now and Report Stage but I have no doubt that the purpose of a strike is to compel somebody to do something. It is that far gone——
My question might be framed thus: a lock-out, as in the case I have mentioned of CIE, which might be used by the company for the express purpose of making the short-time attributable wholly or mainly to the strike or lock-out, would that type of lock-out be considered as an ordinary lock-out when it was regarded by the employer as a means of getting out of his obligations under this Act?
It is a new point.
Supposing an employer locks people out and there is a strike and we express ourselves as being bent on trying to persuade and not to compel, what happens then? It could be argued that because it is a persuasive strike and not a compelling strike it is exempt from the section. It seems to me that any strike or lock-out is what the Minister is trying to cover.
They might say we are compelling them.
I appeal to the Minister to leave the wording as it is. Everybody, but a naïve academician like Senator Sheehy Skeffington, knows that there is no such thing as a persuasive strike or lock-out. It is compelling. We have been listening to Senators FitzGerald and Sheehy Skeffington and others talking about clarity. This is a very clear word which means what it says.
(Longford): Persuasion is a very ugly word because it means the moral deterioration of those who are being persuaded: when you persuade people you erode their viewpoint. For that reason alone “persuasion” is a very ugly word indeed to me.
What do you do with the word "compulsion" then?
What do you do with the word canvass?
I am sure Senator O'Reilly does not mean what he has just said because I am perfectly certain he is open to persuasion on a number of issues, else he would not be here.
(Longford): I am always open to reason which is a different thing but I really do object to my reason being persuaded.
If I were trying to persuade Senator O'Reilly I would endeavour to do it by reason but it may be that it could only be done by appealing to the emotion. It is possible to be persuaded by reason and I do not think this would be an eroding of his mentality or his character.
(Longford): That may be but when I feel that my reason is being persuaded it takes a rather different attitude.
I shall leave Senator O'Reilly to unwrap himself from that.
(Longford): That is the function of Senator Sheehy Skeffington.
I would like to suggest to the Minister that if a company for the purpose not of compelling any action upon workers but for the purpose of evading their obligations under the Redundancy Payments Act should carry out a lock-out, then I feel that we have allowed to slip in a definition of "lock-out" which is detrimental to the interests of the workers with all due respect to Deputy Ó Maoláin and his anti-innocent campaign.
I shall consider the one about persuasion but if I could describe the total situation of lay off and short-time perhaps the Senator would see that it does not matter about the lock-out. The situation is that if a man is laid off for four weeks or if he is on short time or lay off or a combination of the two, for, say, six weeks within a period of 13 weeks then he himself can say "I am redundant" and proceed to claim redundancy payments. What this section means is that a week or so on strike or lock-out will not be regarded as lay off for that purpose. In other words he would have to be laid off at a time when he would normally expect to be working before he could say "this firm does not need my job, does not need me, therefore I am declaring myself redundant". Therefore I do not think the problem would arise, in fact. That is my interpretation.
Question put and agreed to.
SECTION 7.
Amendment No. 11 has been disposed of.
Amendments Nos. 11 to 13, inclusive, not moved.
I move amendment No. 14:
To delete subsection (4).
In this subsection we are dealing with the position of an apprentice and we are saying here, in effect, that an apprentice can be any number of years in the employment and if he is let go within one month after finishing his period of apprenticeship he is not entitled to redundancy payment. I am asking why? I know that apprenticeship is a double-barrelled relationship. The apprentice is in the employment not alone for the purpose of working but to be trained in a craft and the employer undertakes that the person he employs will be trained and will be qualified by the time he finishes his period of apprenticeship. However, I think that we might be putting the apprentice in an invidious position here because you would immediately have the situation that when an apprentice is finished his period of training the employer might say: "We had better pay him off before the end of the month, otherwise he comes within the provisions of the Redundancy Payments Act". I am not happy about the situation. I do not know why this is being provided for in the Bill. I realise there is a special problem in regard to apprentices because it may be that they are in some employments taken in for the purpose of getting a period of training even though there is not in that employment any expectation that they would, after the end of their training, be given permanent employment. There are certain employments which do this training very well and this function is well supervised by An Chomhairle Oiliúna. I have no complaint at all about the way this is operating. However, I am not clear in my mind as to why we should say that if an apprentice is sacked within one month after finishing his period of training he is not entitled to the compensation. What happens for example if he is kept on for two months? Does he then get recognition of all the years of service he had during his period of apprenticeship? If that is so, it must put the idea in the mind of any employer to say: "We had better establish it as a practice that every apprentice, when he finishes his period of training, must be paid off, so as to sever this right to compensation". He may be re-employed again but you would get this break where inevitably apprentices would be paid off. I am not happy with it. I would like to have the Minister's comments as to why the provision is here; why there is a special provision for apprenticeship and whether it is necessary or desirable that this should be covered in this way in the Bill.
The Senator mentioned the point that many employers train more apprentices than they need for their own requirements and this is a good thing for the economy and a good opportunity for the apprentices. It would hardly be fair to make a charge on such an employer who trains extra staff to have to pay these extra apprentices a redundancy payment when they finish their training. However, it is intended that if workers remain on completion of their apprenticeship then the four years spent in that apprenticeship will count towards their qualifying service and towards the continuity of their employment. This provision is meant to prevent a situation where an employer might be discouraged from training extra apprentices. The workers he trained who will go elsewhere will not, therefore, be an extra burden on him. It is about the fairest we could do. The ones he retains will have four years reckoned as qualifying service.
It is not a perfect solution but I cannot think of a better one.
Amendment, by leave, withdrawn.
I move amendment No. 15:
In subsection (5), page 7, line 29, to delete "208" and substitute "104".
This is a simple straightforward amendment designed to improve the Bill. I am not clear as to why it is necessary to wait four years. I quite see, of course, that the amount of compensation is determined by the number of years but I do not see why in order to get any compensation a man should have to wait four years. If he has worked for two years he ought to get compensation. Obviously if a person just comes in for a short period within two years redundancy payment would be inappropriate, but if he works two years he is established and not just a casual employee. If he is found redundant after two years he should get the admittedly small amount of compensation due. This is particularly relevant to the point concerning messengers or boys employed as juveniles on jobs as messengers, a position which incidentally, as the Minister will know from the Drogheda Manpower Survey, is the most impossible position of all among young boys as was found from that survey. Such boys when they become liable to higher pay get the push. That will normally happen within the four year period.
They are not apprentices. They are taken on by the employer because of cheap rates. At the point when juvenile employment comes to an end he gets no compensation from the firm although he has worked there for such low wages. The four-year period excludes such employees and many others who deserve to get some compensation. I would like the Minister to reconsider the 208 weeks.
I suppose you can have different opinions on this. One of the principles of the Bill is that a man working for a firm by his labour contributes to that firm and establishes a right in it. This is the basis of the redundancy legislation that he has a right in that firm built up over the years. He is not getting charity. He has bought a right by his labours. The question that had to be decided was how long a person should contribute to a firm before he had established that right? In some other countries there is a much longer period. I thought four years continuous service in the same firm was a reasonable time, that the person had a right in that firm at the end of that time and could make a demand on it if he lost his employment afterwards through no fault of his own. I considered four years to be a reasonable figure.
I agree that a person earns this by his service to the employer. In Northern Ireland the qualifying period is two years, as far as I know. If a person works with one employer for two years he has a right built up for redundancy compensation if he loses his job. I do not know whether we could persuade the Minister to do something about this four years. It seems a bit wrong to me and it is particularly hard on the young people who are let go simply because they have attained a certain age. I think the Minister in the Dáil reduced the qualifying age from 18 to 16 years of age if my memory is correct so that is an improvement.
Originally the commencement age was 18 because I felt that 22 years would be the youngest age at which a man could claim redundancy. I accepted an amendment to reduce the minimum age for coverage to 16 but held on to the 22 as the qualifying age for benefit. Later I reduced this minimum qualifying age so that people can now claim redundancy payments at 20. This is quite a change in my original intention.
It is quite a change and I referred to this on the Second Stage. The Minister referred to the qualifying period in other countries. I am making the point that our nearest neighbour has the qualifying period after two years. It would not be a lot to reduce it here.
The Minister did not advert to the particular point I made. There is a particular group who are sweated labour, who work for extraordinarily low wages and who are kicked out at the end of their period because their wages have to be increased. Those people then emigrate. Those people have given service to their employers at reduced wages and this is a very harsh provision which excludes them. The Minister has set out to exclude those people. Although he has lowered the age from 18 to 16 it means that those people have still actually got to put in six years before they get compensation. Those people leave school at 14 years of age but as the Bill now stands they cannot get compensation until they are 20. This seems to be a peculiar discrimination in relation to those people who are far too much discriminated against already.
Has the Senator got any concrete cases?
There is no doubt about that. The Senator should read the Drogheda Manpower Survey.
I do not think we should pay redundancy compensation at 18 years.
I cannot see why they should not be paid at that age. It is more necessary at that age. We know that the point of redundancy is greater at that age in this country and this is followed by emigration. It is greatest at the end of the juvenile employment. This emerged from this survey. It is not a problem of getting a job when a person leaves school but at an end of juvenile employment. It means they are thrown out of employment at the end of the juvenile period. There is no employment for them. I cannot understand why the Minister is setting out to discriminate against them.
There is no discrimination here. The Senator is not right. I am trying to get a good Act.
I may have expressed myself with more heat than I should. I am sorry.
The fact is that if there is a three-year period they can still be dismissed after three years. They can be dismissed before they qualify.
At the moment even a humane employer cannot secure compensation for those people from the Fund. They will not get it until they are 20 years of age. We should allow the humane employer to ensure that compensation is paid to them.
I should like to examine this point.
A man may be a humane employer but would have to fall in with common practice because he can only compete if he has those low-wage juveniles, male and female workers, messengers and factory workers. He can only compete with others if he employs them. He cannot compete until he turfs them out. It should not be made illegal that those people can be compensated.
Is the Minister aware that some people employ boys as helpers at 14 years of age and pay them off at 18 years of age? Some of them are retained as drivers but 50 per cent are paid off.
They cannot qualify under this 208 weeks because they are dismissed before they are 20.
If the Minister amended it to 18 years they would pay them off at 17.
I thought four years was reasonable. I think we are discussing the question of the period for building up rights in a job. The point has been made that employees who just fail to benefit should be considered but I do not think all such persons can be considered under this Bill.
I can quite see that but to make it illegal and impossible for them to be compensated, even where the employer is willing to do his best for them, seems to be an odd piece of legislation.
There is nothing in the Bill to prevent an employer having a private scheme.
That is another matter. The employee contributes to the scheme and it should be possible for him to receive compensation after two years. The average employer will keep a person on for two years and they could then get compensation. It is, in fact, impossible under the present arrangement for such a person to get this redundancy compensation. The Minister needs to look again at this age level and the 208 weeks. I would be happy if he were able to say that within the framework of the Bill he could make special provision for those people. I am not sure he can do anything under the Bill as at present phrased. The Bill is too tightly phrased to enable him to make special provisions. In the Bill as a whole the Minister is tying himself down too tightly and in order to make provision for special groups he will have to come back to this House, not once but several times and it is a pity.
When you set out to construct a Bill you must have certain principles. There has been a tendency to confuse the principles of redundancy with the principles of social legislation. The redundancy legislation is to establish that a man has a right built up in a job and he should be compensated by the employer for this right if he loses the job. Also, redundancy legislation will help in so far as it will make workers accept change and adaptation because they will be guarded against the effects of redundancy arising out of it. These are the two main considerations running through the Bill. To try to cover every case, especially hard cases which the Senator mentions, would bring you away from these principles and there would be a reflection on the charitable feelings of all of us and you would not have a good Redundancy Act. If we found that this juvenile type of employee were being exploited we could have something to meet it but I do not think we should do it in this Redundancy Bill.
I can see the Minister's orientations—
This amendment would not be adequate.
It would be one or two of the steps required for doing it. The Minister has been orientated towards redundancy in relation to free trade and people having to be put in other employment if they lose their employment under free trade conditions. The orientation to juvenile redundancy which is not in the Bill would require a good deal of adaptation of the Bill. He has in some sense drawn from the manpower survey. We can all give evidence in relation to this problem. The nature of our emigration problem is such that one of the things that would make a big contribution to it would be provision in relation to juvenile employment to give them weekly payments and get them into other employment. That is where the loss occurs and it is the redundancy at that point which is our biggest problem with regard to emigration.
The Bill was not designed to meet this but it would be a good idea to adapt it. The Minister has enough facts now to draft a solution for it but I am prepared to withdraw the amendment because I see it is not an adequate solution to the problem.
Amendment, by leave, withdrawn.
Question proposed: "That section 7 stand part of the Bill".
I notice the Act is to apply to a person provided—
(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts 1952 to 1966,. . . .
I am aware that there are certain kinds of employees in the State who are exempted from being insurable in regard to certain types of benefits under the Social Welfare Acts. I wonder why the Minister puts in "for all benefits under the Social Welfare Acts". These people may well be as much entitled to the redundancy type of compensation as people insured for all benefits.
We have had this out on previous amendments.
There is a particular point as to why all benefits should not have been discussed. Why has "for all benefits" been included?
I have a list of employments which have their own schemes and are exempted. I shall have a look and see whether I can find it now. I had this list which I read out in the Dáil of the people who are insured for limited benefits.
Perhaps the Minister would find the part relating to the industrial fringe which are exempted. I know that certain public servants are liable for insurance for widows' and orphans' pensions but I do not know what the position is in the industrial fringe. There are certain people employed in the Department of Defence to my knowledge who are not regarded as civil servants and I do not know what category they come under. Do they come within the exempted people? There are certain employees also in the Board of Works.
They are in this scheme, covered by the civil service. If we are to deal adequately with the fact the Senator raises, I would have to refer to the list of those employees.
If the Minister will send me a copy it will be adequate.
Question put and agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill".
This is a good solution to a difficult problem of seasonal work and I congratulate the Minister on finding this way out. This may not arise in practice but it is a good attempt towards solving this problem in a country where there is a lot of seasonal employment because of the tourist industry.
Question put and agreed to.
Amendment No. 16 not moved.
Sections 9 to 11, inclusive, agreed to.
Amendment No. 17 not moved.
Sections 12 and 13 agreed to.
Business suspended at 6 p.m. and resumed at 7.30 p.m.
SECTION 14.
I move amendment No. 18:
In subsection (1), line 27, to delete "subsection (2)" and substitute "this Act".
We feel that this amendment is necessary to ensure that the adjudicating system would extend to the decisions of employers when dismissing employees for reasons of misconduct.
I am not quite clear, I am afraid, as to whether the proposals would be the effect of the amendment. It seems to me that it would widen the area of dispute that could occur if we changed it as suggested. Without having heard arguments in favour or cases to show why it was likely, I had thought, for example, that if you qualified subsection (2) by making it subject to "this Act", the Appeals Tribunal could be called upon to decide matters which I had not considered to be appropriate to the Appeals Tribunal under this Bill at all; that is, to decide whether the employer had acted within his rights in dismissing a person, which to my mind would normally be within the province of trade union activity and industrial relations negotiations and discussions, or common law rights to be determined by the Courts. I am not sure if this is what was intended.
I must confess that I was not a hundred per cent clear myself, but I was advised that the amendment was necessary, that if we leave in subsection (2) the adjudication would be available only to cases under this subsection (2) whereas the union concerned wanted it all over the Act where any such situation arose.
That is what I suspected, but this is not appropriate to this legislation. I had something akin to it in the Dáil. What was proposed there would seem to have been desirable in other legislation but not to redundancy legislation. It could give rise to cases being brought to the tribunal which would normally be dealt with by trade unions or by the courts.
Amendment, by leave, withdrawn.
I move amendment No. 19:
In subsection (1), lines 30 and 31, before ", terminates" to insert "(which conduct is described in writing)".
This has to do with the necessity for describing the misconduct on which an employee might be dismissed. What we want to do is to ensure against a situation arising where an employer could dismiss a man for misconduct without stating the nature of the misconduct. It could be something very petty. A case has been cited in which an employee had not read the safety regulations in a factory. This was branded as misconduct and he was dismissed. We want to prevent petty misdemeanours being described as misconduct by providing that the employer must put it in writing.
This seems quite a sensible amendment.
This matter was raised before. "Misconduct" is mentioned at the side. The question was put to me whether I should insert the word "misconduct" instead of "conduct"—in other words, that the employee should be guilty of a misconduct and so on. There are certain types of conduct which could warrant dismissal yet they could not be described as misconduct—but the conduct of the employee would be such as to warrant dismissal.
Would it not be better if it were put in writing? The case I cited involved the conduct of the employee in not reading the safety notice. Surely that would not be grounds for dismissal.
It seems a reasonable thing to ask that the conduct or the misconduct should be put in writing, not simply given verbally, in which case a dispute might arise subsequently as to the circumstances of the dismissal.
I wish to point out once more that this Bill is to deal with redundancy. If a worker is dismissed because of redundancy he is entitled to redundancy payment. If he is dismissed because of misconduct he is not entitled to it, but if he is deprived of his redundancy pay because of a doubtful accusation of misconduct then he is entitled to plead before an Appeals Tribunal that he should, in fact, be entitled to redundancy pay; that he was let go because of redundancy and that the employer used conduct as an excuse. However, to go on to what I was saying before would be to go on to another principle. If you want to say what type of misconduct warrants dismissal——
That is not what was said here in the amendment.
If the situation is that a worker is deprived or seems to be about to be deprived of his redundancy payment because the employer said to him: "I am dismissing you because of misconduct, not because of redundancy" then he can go to the Appeals Tribunal and the employer will have to produce evidence before that Tribunal that it was not because of redundancy he was let go.
Surely before the man is dismissed the employer should have to make up his mind and put down in writing why he is dismissing him?
For what purpose?
For breach of conduct.
The purpose of the suggestion must be related to redundancy payment and the only situation I can see where this would be necessary is the case where an employee is being deprived of redundancy payment because he is being dismissed for misconduct and not for redundancy.
Yes, but the man is being deprived of something. He has been charged. I know where disciplinary machinery applies it is a usual requirement in regard to any charge even not involving dismissal that the employer should state in writing the nature of the charge so that he can defend himself. Here a man is being thrown out of employment and by reason of that he may be deprived of redundancy pay. I think it is only reasonable that the employer in doing this should put down in writing the nature of the conduct for which he is dismissing the employee and not think it up subsequently. The man should know when he is going before the Tribunal what he has to face, what he has to dispute, but if he is not told in writing exactly what he is guilty of he is at a disadvantage. In those circumstances I feel it is reasonable that the employer should put down in writing the nature of the conduct for which he is dismissing the employee.
I see the point but it refers to only one situation and that is where an employer would be trying to deprive a man of his redundancy payment and would dismiss him for his conduct. I wonder if I would be justified in saying that in every case of dismissal for conduct reasons an employer must give in writing the cause for the dismissal. It is only in the circumstance where a man is deprived of redundancy payment and he has a case that it is redundancy dismissal that he would appear before an Appeals Tribunal to dispute the claim with the employer. If you did it for every case of dismissal——
The amendment does not propose that every dismissal must have a statement in writing. It only says that an employee shall not be entitled to redundancy payment if he is dismissed by reason of conduct stated in writing. There may be lots of dismissals for misconduct not in writing which will not affect the issue but unless it is to be in writing and there is a formal charge of misconduct he should not be deprived of redundancy payment. We are not saying all the employers must do it in every case of misconduct. We are only saying if there is any question of the employee being deprived of his redundancy payment this can only happen if this has been put in writing. That seems reasonable.
Would the Senator think there would be any danger of the Tribunal becoming the place where all these cases of dismissal were investigated? It would not be the proper machinery for this.
Would a man be deprived of a redundancy payment if he were dismissed for conduct that did not please the employer but was really of a very petty nature? Would he still have to go before the Tribunal or could somebody at that point say: "This employer is obviously getting rid of him because he did not want to pay redundancy payments". I am assured that they are dismissed on the grounds of their conduct for very petty things.
My problem is that two areas of activity might be mixed up. In the normal course of events an employee who is dismissed for petty things or because of his conduct would seek redress from his union. His union would deal with the employer. This is a well established way of doing it and I think it is, by and large, a satisfactory way. He also has recourse to the courts if his rights were interfered with. Should I bring it into the Redundancy Bills machinery? Should I bring the question of whether dismissal was wrongful or not in? I feel I should not.
I think it would be better.
I wonder would the appeals machinery be adequate to deal with it?
I am thinking that so many people put up with that kind of thing because they do not like to go to the courts.
I am unhappy about the section more broadly because on reading it more carefully if it means what it appears to mean we are all on the wrong track. If one reads it carefully and takes the parenthesis:
An employee who has been dismissed shall not be entitled to redundancy payment if his employer, being entitled to terminate that employee's contract of employment without notice by reason of the employee's conduct terminates it—
(a) without notice. . . . . . . . . . . . . .
There are various other "ors" but it does not say that the employer terminates it because of the employee's conduct. It only says where you have a case. Most employers are normally entitled by contract to terminate employment without notice by reason of the employee's conduct. That is the normal condition under which manual workers work. There are obviously personnel who have to get compensation if their employment is terminated even in a case of misconduct but the average worker can be sacked without notice in a case of misconduct. Therefore, most employees are in the position that the employer is entitled to do this. It does not say here that the employer terminates it by reason of his conduct. It only says that the case is one where an employer——
In all the circumstances. Can the Senator think of any other cirstance?
If he assaulted the employer.
That is conduct, is it not?
The Minister is not getting my point. As drafted, this does not relate to cases of dismissal for conduct. It covers all cases of dismissal.
Where the employer is entitled to dismiss a person and where the terms of contract permit dismissals without notice by reason of the employee's conduct. In fact, the case might be one of dismissal without notice where the employer was entitled to dismiss the employee, whether or not the employee misbehaved. In such a case according to this section, he gets no redundancy compensation simply because there is another clause in his contract. He is dismissed simply because there is this clause in his contract. In those circumstances he is dismissed for no other reason. The clause in parenthesis is merely a qualifying clause stating what one of the terms of contract must be.
To get back to the fundamentals, in order to get a redundancy payment you have to be dismissed and you have to be dismissed because of redundancy.
In this case you can be dismissed because of redundancy if there happens to be a clause inoperative in your contract.
What the Senator wants is that an employer who has to dismiss a man should have to pay redundancy compensation in every case.
The clause ought to be read in such a way that where this person has his employment terminated by reason of his conduct he should not be entitled to compensation but, having said that, it goes on to talk about his employment being terminated without notice because of certain things in his contract. This man is not entitled to a halfpenny in compensation under this section as at present drafted because of this clause in parenthesis. If my employer terminates my contract by short notice and if I have fallen into one of those clauses I cannot claim compensation within the framework of this section.
I see what the Senator means. The Senator means that because of the existence of this clause the man is not entitled to compensation.
It means that the employer is entitled to treat the man in this way because of a clause in his contract.
It says here without notice or by giving shorter notice or by giving notice with an explanation.
There are three "or" clauses here. If such a man was dismissed without notice on the grounds of redundancy and if there was a certain clause in his contract he is not entitled to compensation.
The Senator is pointing out that an employer may dismiss a man and not give a reason but because the man has a clause in his contract saying he could be dismissed for misconduct he can be dismissed without redundancy payment.
I think what is required here is the insertion of a clause after the words "terminates it".
I will have a look at this and see if this can be redrafted.
I am sorry to intervene on Senator Miss Davidson's point.
I will see if it can be redrafted for clarity.
Drafted for legal effect, not just for clarity. However, if the Minister will look at it, I will not pursue it further.
I will ask the draftsman to have a look at it. I am sure he knows more about it than either of us.
I think Senator Miss Davidson's point is being made in respect of the phrase in parenthesis.
You have to think of fundamentals here. A man has to be redundant and has to be dismissed because of redundancy to get a redundancy payment. When the employer dismisses him, and uses, if you like, a legal terminology, because this clause is in his contract, he would still have to prove the man was not redundant before avoiding redundancy payment.
He has to prove his case once it comes within this particular clause. The clause as drafted could well mean if redundancy compensation was paid out the Comptroller and Auditor General would have something to say. The Minister has agreed to look at this and that is all I am asking.
I will have a look at it.
Is there a question of the employer or the worker having a contract in writing? Usually a worker has only a verbal contract. Most workers are taken on by just being told: "You will start on Monday morning at so much a week."
This is a point. It struck me earlier and needs to be looked at.
Most people would regard this as a contract of employment.
You have to determine if there is no contract but only an implied one of somebody working for somebody else and whether or not this implied a contract.
This refers to the law of entitlement. This is why I say I do not know whether we should bring, as Senator Miss Davidson asks, those things into the tribunal. Those are common law rights.
The point I want to make with regard to Senator Miss Davidson's amendment is that her amendment would be better after "terminates" rather than before it.
I will look at that and ask the draftsman to see if anything can be done.
Amendment, by leave, withdrawn.
Question proposed: "That Section 14 stand part of the Bill".
I wonder if we are correct in assuming that in a matter like this where the employee thinks he should be entitled to redundancy payment whether, in fact, the clause here would prevent him from getting it. Would the Minister check this between now and Report Stage? The previous section talks about the decisions of the deciding officer which are covered in section 38 but there does not seem to be any provision here for the deciding officer to judge whether the man was dismissed by reason of his conduct, in circumstances where he was, in fact, entitled to compensation. I cannot find it and perhaps the Minister might check on that.
I wonder will the Minister explain to me the meaning of subsection (2) of the section. I have read it a few times and I am still not very clear as to what is meant by it. It reads:
When an employee who has received the notice required by section 17 takes part, before the date of dismissal, in a strike and his employer by reason of such participation, terminates the contract of employment with the employee in a manner mentioned in subsection (1), that subsection shall not apply to such termination.
If it is said: "You are being sacked because of your conduct"—and by reason of that an industrial dispute arises and the person is dismissed because of a strike, I hope that does not debar him from redundancy.
It is to protect the worker from losing redundancy to which he will be entitled.
Question put and agreed to.
SECTION 15.
An Leas-Chathaoirleach
Amendments Nos. 20, 26 and 59 can be debated together.
I move amendment No. 20:
To delete subsection (2).
We were, in fact, debating the principal arguments on another amendment earlier on. The same problem arises as to what the position of a worker would be when he is offered another job by the employer which is wholly different from the previous job he held with that employer. I am still uneasy about the position as to whether if he refused that he could substantiate his claim for redundancy payment. I would ask the Minister to consider this between now and Report Stage. I am concerned about paragraph (b) of subsection (2), whether this would, in fact, govern the position which is mentioned in paragraphs (c) and (e). A tribunal would be in difficulty here because it says that the job might differ wholly or in part from the previous job, but it also says that the offer constitutes an offer of suitable employment in relation to the employee. The Minister made a point here on "in relation to the employee" which is important. I see that point. He also says that he is not unreasonably refusing the offer. I am still worried that the wording of subsection (b) would place the tribunal in an awkward position even though the job was quite different from the job previously held by the employee. By reason of that paragraph being there it would be unreasonable of him to refuse that employment and thereby debar himself of the benefits provided for in the legislation.
We considered in dealing with the section the positive case of an employee being offered a job. If he gets his own job back that is all right. If he is offered a new job which is acceptable to him it is all right. The new job may be different altogether or in part from his old job but, if he accepts it, that is all right. If the new job differs in relation to his skill, to the amount of remuneration, and in other respects, he can say that it is not a suitable job for him. That is why I left it in the Bill as suitable to the employee in the particular case and I thought that individual cases treated by the tribunal on this basis would be the best way. It will only be used when the employee says "that is not a suitable job for me. If I could be persuaded that he could be better protected in any other way I would look at it but I feel this is the best way.
I am involved in this because of the existence of paragraph (b).
That is to cover the case where the job a man is offered is not the same job, but different in whole or in part. It must be suitable to him. That is the way it is intended. First of all, you deal with the case where he is offered his old job, or one exactly the same. If not the same, paragraph (c) comes into operation. It is not the same job he had before but it must be suitable.
Where is "suitable"?
In subsection (2) (c). We have been through this on section 9.
May I ask the Minister if the provisions of this Bill apply to people redundant within the Civil Service?
People in the Civil Service are excluded from this because they are covered by permanent, pensionable posts. People not so covered will come under this when it is enacted.
On Second Reading I invited the Minister to make a suggestion but he has the happy knack on Second Reading of perhaps failing to comment on a point made by a Senator for the very good reason, no doubt, that the Senator does not happen to be present. I raised the question of technological changes in the State service, for example, the telephone exchanges where the technological changes are such that automation comes in and a number of girls who might be there for years are no longer required. Due to family commitments it does not suit a number of such girls to transfer 20, 30 or 40 miles away. There is no provision to look after the welfare of the people about whom I am talking. I would suggest that the provisions of this Bill, and that is why I refer to this section particularly, should cover civil servants and employees in this category. They should be allowed, if they have a certain amount of service, to retire on full pension. No such provision is within the scope of the Civil Service at the moment.
I did not get the point the last time. The question is whether they are covered. The real point in the Senator's mind is whether the girls, having been offered employment in another town, would have been offered suitable employment. This would be for the tribunal to decide. In some cases I can imagine where a person is free to move the tribunal would say: "you are free to transfer", but a person with family ties could refuse and it could be regarded as unsuitable to move him if it would mean a change of house.
I understand that they would be able to make a case before the tribunal.
Oh, yes.
It would have to be shown that it was not suitable and was not unreasonably refused.
There will be the same cover for the civil servants covered by this Bill who are declared redundant and offered other employment. They can put their case before the tribunal.
The reasons put forward by a person in that particular position could include disturbance of their particular household and their family circumstances and so forth. That would be a justifiable point to put forward?
I did give a list earlier and included distance travelled as my own idea of what could reasonably be put forward.
That is okay.
It is useful to have this on the records. The tribunal, unlike a court of law, might be guided by what is said in the Oireachtas.
The tribunal would have trade union and employer members on it and would be more than just making a judgment and an interpretation of the law. While it would include interpreting the law it will have these other considerations in mind.
The Minister said that he gave some instances of what he would regard as unreasonable. I do not remember that he mentioned distance.
I think I did. I memtioned distance or lesser pay or a job not using the skills the man has been using.
You have mentioned them now anyway.
The tribunal would be made up of people interpreting the law —the Chairman-and representatives of employers and trade union congress interests. They would take into account undue family disturbance, I would say, in saying whether a particular job was suitable or unsuitable for a particular employee.
That covers it.
Amendment, by leave, withdrawn.
I move amendment No. 21:
In subsection (2) (d), page 12, line 25, to delete "four" and substitute "one".
I put this down so that we could discuss this particular provision that in these instances there must be an offer of renewal or re-engagement within four weeks. It seems rather a long time and I wonder why such a long time is provided. It would seem important that if the employer is, in fact, hoping not to have to pay the redundancy compensation because he is offering a wholly different job he ought to be offering the job immediately to the employee and not leave him hanging around for four weeks without employment. The Minister may have had some reason for fixing four weeks, but I was puzzled and wanted to give him an opportunity of explaining it.
It is an attempt to find a balance between the worker and the employer. Employers should not be expected to give redundancy pay if they can give employment in a month's time. If the employer can say; "I will have a job for you in a month's time" in most cases it would be reasonable to expect that he would not have to pay a redundancy lump sum to that person. Four weeks is the outside of it. It might be three weeks, two weeks or one week. I do not quite see the point the Senator is making. If you are an employer and a man is redundant in a part of your firm and you say to him; "I can give you a job in a month's time" this should be accepted instead of declaring him redundant now and taking him back again. His continuity of service would not be broken. He will be building up his credit in employment with the same employer and is not being deprived of his ultimate rights in the situation. If the employee said: "It is not reasonable to expect me to wait four weeks, my family circumstances being such" then the tribunal could decide whether it was not reasonable to expect him to wait four weeks and he has not been unreasonable in refusing. Four weeks may in some circumstances be enough for the employee to say: "I will not take that job. It is too far away". The tribunal would then decide.
Does the Minister realise the difficult situation that these two clauses have got him into? The position now is that if the employer is offering the same job to the employee or a job which is identical but he cannot offer it for a week or two, redundancy compensation comes into play. If it is a different job he will be all right for a couple of weeks. I do not understand the purpose of this distinction.
If there is a lay off, if the employee is getting the same job back, but the employer is not ready to give it to him right away, all the employer has to do is lay him off, but if it goes beyond four weeks the employee can himself give notice and declare himself redundant. This would not be entitling him to redundancy payments until he had four weeks lay off. This is covered in an earlier section which we have already dealt with.
What is the definition of lay off? I cannot lay my finger on it, if I may be pardoned for the pun.
A lay off is if you are laid off. I cannot think of anything better.
This clause talks about where his contract is renewed or he is offered a new contract, but it does not say the same job.
The difficulty the Senator is in is that we are not dealing with law but with life. In life, if a man's job disappears but is going to reappear in a month's time he is laid off. If it disappears for good he is redundant, whereas a man offered a new type of employment is in a different situation altogether.
I do not quite see the reason for the two different provisions here.
It is in a different context. We have the same type of provision in the lay off sections.
I did not appreciate that.
It is worth discussing it to find out how complicated it is.
The Minister is satisfied that four weeks is not unreasonable?
This is what we have provided in respect of lay off.
All right.
Amendment, by leave, withdrawn.
Section 15 agreed to.
SECTION 16.
I move amendment No. 22:
In subsection (4), page 13, line 5, to delete "both are subsidiaries of a third company" and substitute "is owned as to at least 25 per cent of its shares by the other, or both are subsidiaries of or are owned as to at least 25 per cent of their shares by a third company".
This provision, I think, is one that the Minister should seriously consider. I know that the provisions in the Bill as at present drafted are similar to the English Bill, which I have checked, but I am not satisfied that they are the right provisions. You get nowadays a complex relationship between companies. A wholly owned subsidiary is not regarded as the only advantageous relationship between two companies. There are many cases where companies have minority shareholdings through which they may, indeed, from the large number of other shareholders, effectively control a company in which they have a minority holding. Some of these minority companies form parts of large groups. I do not want to name any particular instance, but the Leas-Chathaoirleach will have no difficulty in thinking of a case in the area in which he resides.
In these cases where you have a group of companies, some of which are wholly-owned subsidiaries and others of which have a shareholding of 25 per cent or more but not the 51 per cent, the latter group are effectively a part of the group and in such cases there is no reason why employees should not be found employment in the other companies of the group. The position under the Bill as it stands is that there is no incentive to the employer to find employment for an employee in a company in which he has not a 51 per cent shareholding but in which he has a lesser holding. It does not relieve him of the obligation to pay the lump sum.
I take it this was taken from the British legislation without thinking very seriously of the situation here. If an employer in one company finds a position for an employee in an associated company he should be encouraged to do so. If he does it, this employment should fall within the Act. From the employee's point of view, it is a matter of indifference to him whether the person who secures him the employment has a 25 per cent shareholding in the other company. The point is that there must be some connection between the company which employed the worker and the company with which employment is found for him. A 25 per cent shareholding should be sufficient connection. It would be a good thing to give an employer an incentive to find employment for a worker somewhere within the group. Therefore, I suggest that the amendment before the House, or a better one proposed by the Minister if he sees defects in mine, should be acceptable.
This was suggested to me in the Dáil.
Was it? I did not know.
We were relying on the Companies Act definition——
That is what I was afraid of.
When not less than 51 per cent of the shares of a company are held by a second company it means there is a substantial connection between the two. In the Dáil I was asked by both my Party and Labour Deputies to make some arrangement-something like Senator FitzGerald mentioned—but I did not think it would be wise to scale down the minimum interest of the holding between two companies. It could give us a situation where workers would be deprived of redundancy payment by transferring to companies with a small connection between them. I tried to meet the situation with an amendment of my own because I felt if we had it in the way now proposed it would give rise to numerous disputes as to what a reasonable offer of alternative employment would be in an associate company. I brought in an amendment which created a voluntary situation for a worker-that if both employers agreed that the worker would take with him his continuity of employment and received credit for it, then if the worker was willing to forgo his lump sum, he could go into the new employment without a break in his continuity of service. This does the same thing as was asked of me, except that it leaves the decision to the employee who can say he wants a lump sum now or can decide he wants to take with him his continuity of employment, his credits for the earlier job to the the other employment. The suggestion being made now might work to the disadvantage of the worker.
The employee, of course, could veto it and say he would take the lump sum or the employer could say it was hardly worth his while seeking alternative employment for the worker. In this instance, there is the idea of protecting the worker from himself. Redundancy payment is the safety net for the worker who falls out of employment and, therefore, the employer should be given the strongest possible incentive on conditions that are fair and just to the worker. The Minister's solution does not seem to be quite satisfactory because it means the employer has no guarantee that if he does go to this trouble he will get any benefit. The employee can veto it and say: "I want my compensation".
Then, the decision the employee makes is between redundancy payment now or maintaining his continuity of service and getting credit for former employment.
My experience is that if there is a lump sum lying about, continuity of service is something the worker will forget about. I remember once leaving a State company, there was a lump sum and I was very glad to get it. I can see workers being influenced by the lump sum. The break in service will, unfortunately, not influence them.
I should be inclined to leave the decision to the individual workers. One can visualise, as an alternative, a situation where a worker would be sent from one position to another, being entitled to redundancy pay and having no say in it if we make the holding level 25 per cent——
There are two sides to it. Still, I think I have a strong point.
Amendment, by leave, withdrawn.
Section 16 agreed to.
SECTION 17.
I move amendment No. 23:
To delete subsection (1) and substitute the following subsections:
"() An employer who proposes to dismiss by reason of redundancy an employee who has not less than 26 weeks service with that employer shall give to the employee notice in writing of the proposed dismissal and send to the Minister a copy of that notice.
() The notice required to be given by an employer in accordance with subsection (1)
(a) shall be not less than one week's notice if his period of continuous employment with that employer is less than two years; and
(b) shall be not less than two weeks notice if his period of continuous employment is two years or more but less than five years; and
(c) shall be not less than four weeks notice if his period of continuous employment is five years or more."
The purpose of this amendment is to spread over to the short-term employees as well as to the long-term workers the provisions in regard to notice of dismissal-the longer the employment the longer the notice. I understand this is embodied in the Northern Ireland legislation. There is the figure of one week's notice for two years, two weeks for two years or more but not less than five years, and four weeks where the period of employment is five years or more.
This point was raised in the Dáil. It would be appropriate to other legislation. The period of the notice required for this Bill is for the administration of this Bill only. Its purpose is to give adequate time to the placement services and others to take care of the person. The principle of the length of time of notice an employee gets is for separate legislation. What I have here does not reflect my view at all on how long notice should be. I undertook to the Labour Deputies in the Dáil to go into the question of having that dealt with in separate legislation but I do not think this is the place for it.
Amendment, by leave, withdrawn.
I move amendment No. 24:
In subsection (1), line 15, to add at the end "provided that where an employer satisfies the Minister that he is unable to give such notice by reason of circumstances outside his control, and the Minister so certifies, he shall be exempt from this requirement".
The problem here is that, as drafted, this section seems to put the employer in the position that he will be liable to a penalty and to an offence if he fails to give notice of a kind which could be outside his power to give. Certainly for the protection of the employee there should be an obligation and, I think, a more stringent obligation than there is now to have to give notice. However, no matter what obligations we impose a situation can arise where an employer can find that he cannot continue in business or that he cannot afford to continue the employment of some of his workers and there is no time to give notice. This could be outside his control. Indeed, by giving notice or paying in lieu of notice he might be exhausting funds otherwise available for redundancy compensation. It seems to me that there should be some let-out clause where, if an employer can satisfy the Minister that his failure to give notice was outside his control if the Minister is so satisfied that he may at least exempt him from penalty. I wonder if the Minister would consider such an arrangement?
I think this can be done without the amendment. It is at the Minister's discretion to reduce the rebate payable to an employer in section 29 (3) so that in the circumstances mentioned by the Senator it would have to be assumed that the Minister would not by way of penalty impose a reduction on the rebate due to the employer from the Fund if the circumstances were such that he could not help it. Indeed, a decision of the Minister in those circumstances could be appealed to the Tribunal. However, the intention is as I have stated and the power is there to do what the Senator says.
That is very useful although it is not my point. My point may be misguided but it seems to me that an employer is absolutely bound here to give notice.
Two weeks notice.
Yes, it does not even say he can give pay in lieu of notice. He must give notice and if he does not the penalty applies. There does not seem to be even provision for buying his way out of the notice. Perhaps, I am misinterpreting the legal significance of "notice" which may mean notice or money in lieu of notice. If that is the case, there is no problem but it seems wrong that an employer should be automatically guilty of an offence if he fails to give two weeks warning whether or not that is in his control. Quite apart from the Minister's power to mitigate the payment of the redundancy compensation, there seems to be the problem of the employer's inability to pay.
If he cannot pay the lump-sum he may not be able to pay in lieu of notice but it is in the Minister's sole discretion to reduce the rebate.
But it has nothing to do with the Minister. The employer shall be guilty of an offence. The Minister has no say in the matter whatever. Of course, the Minister may pay the £50 fine for him.
The penalty I was thinking of was the rebate.
I appreciate that.
The Minister will have to bring the prosecution. The employer is not automatically prosecuted.
I do not know, "shall be guilty of an offence" seems pretty clear to me.
If a man does not give notice it is at the sole discretion of the Minister to reduce the amount he would get back from the fund. The point I am making is that on prosecution by the Minister and conviction——
I do not know who prosecutes. I only know that he shall be guilty of an offence.
Does the Senator imply there will be no reason accepted for not giving the required notice?
Is this the law at the moment?
There is no law at the moment.
Quite apart from anything to do with redundancy we are introducing a new penalty for refusing to give notice which is absolutely mandatory.
If a man exceeds 30 miles on a road where there is a 30 mile speed limit he is guilty of an offence but that does not mean he is necessarily prosecuted, unfortunately.
I cannot see a prosecution being brought where a man is not guilty of an offence where he is not at fault.
That may be so but it seems a very untidy way to legislate. The Minister assures the House that he will connive not to enforce the law if he thinks it should not be enforced. I would prefer him to have power to do that rather than have to connive to do it.
Surely if a man were prosecuted in those circumstances the courts would apply the Probation Act. There would be no penalty involved. One must assume that the courts would take cognisance of those circumstances though I cannot conceive circumstances arising where he could not give two weeks notice.
Amendment, by leave, withdrawn.
Section 17 agreed to.
SECTION 18.
Question proposed: "That section 18 stand part of the Bill."
May I ask whether the regulations in section 18 (3) are among the regulations that must be laid before the Houses of the Oireachtas or what are the provisions in relation to them?
There is not a requirement. However, I said earlier that we would lay them before the Oireachtas but they would not be so laid for resolution and discussion by the House. There are certain matters which have to be passed by resolution of both Houses to become effective but these regulations would be made by the Minister and submitted to the House for information.
In the ordinary way?
It is not in the Bill but I said earlier we would do this.
Is there any reason why it should not be in the Bill?
There is no necessity.
I do not know what is the usual practice.
The usual practice is to say that they shall be laid before the House. Is it not?
I gather that Orders are usually laid before the Houses, not regulations.
I accept that.
Question put and agreed to.
SECTION 19.
Amendment No. 25 not moved.
Section 19 agreed to.
SECTION 20.
Amendment No. 26 not moved.
Question proposed: "That Section 20 stand part of the Bill".
In subsection (2) in the middle of that rather long paragraph it says:
renews the employee's contract of employment (with the substitution of the new owner for the previous owner) or re-engages him under a new contract of employment. . .
I wonder should we not say "on the same terms" or is it not necessary? If it is a new contract it could be on any terms.
It is not to protect the type of employment but to ensure that the new owner would be the employer.
Is it the Minister's contention that the initial phrase "as by agreement with the employee" covers the situation adequately?
Yes.
As the Minister has answered adequately, I will leave it at that.
Question put and agreed to.
Sections 21 and 22 agreed to.
SECTION 23.
Question proposed: "That section 23 stand part of the Bill".
We are opposing this section because of one aspect in it. I would have put down an amendment to deal with it if I could have drafted one to cover this point. I have read this section a few times and I must say I am still puzzled by it. As I interpret it, it means that where an employee has at any time become entitled to the benefits provided under this piece of legislation and he comes back into employment again, even though that employment is with the same employer, he still has to work four years before he builds up any entitlement at all again. I am not objecting to a situation where a person is laid off and is given the payments he is entitled to under this measure and goes back into the same employment again, but I do object to the situation where the person pays his debt and was discharged.
I am concerned with the fact that even though he has come back to the same employer again he still has to serve another four years before he is entitled to compensation. This is unreasonable. I do not know how I could amend the section to try to provide for that situation. I do not know whether other Senators would agree with me that it is unreasonable in such circumstances that the person going back to the same employer should have to serve another four years before he starts to have any right at all. I accept that the service he had previously has been discharged by reason of the payment he got but I am not happy with the situation that he has to start as a person who is fresh into this employment. A young person starting work with this employer is in exactly the same position with the employer. That is not a reasonable situation. I wonder would the Minister agree with me in this respect and, if he agrees, would he say if there is any possibility of amending the section to deal with that situation?
This is the argument about building up the rights which we talked about before and about how long it should reasonably take to build up those rights. If the man has received a lump sum he has drawn his rights. If he goes to another job anywhere he has to begin to build up his rights and the four years qualifying period arises again. What is a reasonable period that a man should serve so that he has those rights? If the weekly payments have not been used up and he still has credit, if he is employed in a new job before his weekly payments are used up then his credits stand. Those would stand to his credit but the rights in the old job which he has drawn would not stand.
It is one thing to give him his rights but it is another thing that he should not receive benefit for another four years.
The lump sum payable by the owner or employer represents his accrued rights. The employee has built up those rights. If he takes them out of the firm any new service with that firm should be regarded in the same way as starting a new employment with a new firm. He has taken out the rights he had. If he starts employment with that firm it is the same as a new employment.
This is another argument against the four years.
Question put and agreed to.
Section 24 agreed to.
SECTION 25.
I move amendment No. 27:
In subsection (1), line 17, before "outside" to insert "employed".
Since putting down this amendment I have discovered that it was also put down in the Dáil, no doubt for the same reason. I have not had a chance to refresh my memory on the Dáil debate but it seems an extraordinary provision that because a person is outside the State, possibly on holidays, that this deprives him of his entitlement to redundancy compensation. I can quite see if he is employed outside the State that he is not entitled to compensation but the fact that he is outside the State, possibly on holidays, seems rather harsh.
It is the opposite to what the Senator wants. If a person is employed here and is entitled to redundancy compensation but if he is outside the State for any reason other than the reason of employment he still would get the compensation, as the section is drafted. If this were to be limited as proposed he might not be entitled to redundancy payment. The amendment would achieve something you do not want to achieve. If he normally works in the State and if he is outside the State when he is declared redundant then he gets the redundancy payment. A provision that he has to be working outside the State might limit the right to redundancy compensation.
I half understand.
Amendment, by leave, withdrawn.
I move amendment No. 28:
In subsection (1), line 17, before ",unless" to insert "and is entitled to benefit under a redundancy code in the State in which he is resident".
On this I want to raise a more substantial point. It seems that the purpose of this is to exclude—maybe I only half understand this too—employees working outside the State under certain circumstances. I remember some discussion on this in the Dáil and the question of Aer Lingus employees was mentioned. It is coming back to me that there was some suggestion that a humane employer like Aer Lingus would bring their employee back to dismiss him so that he would get compensation. It seems to be an unsatisfactory situation to fly a person back which everybody knows employers cannot do as cheaply as Aer Lingus. It seems to me that what we want to do here—I am not sure that we have done it but I am open to conviction—is to provide that if an Irishman is employed by an Irish firm outside the State and falls under the redundancy scheme of that State, then he is not to be compensated here and get double compensation but if the nature of his employment outside the State, on behalf of an Irish company, is such that he is not entitled to redundancy compensation in that country, then he would be entitled to redundancy compensation here as the employee of an Irish firm who through no fault of his own has been serving outside the State. The Minister was happy earlier as to what his intentions were. His intentions ought to be this in this instance. I should like to know how the draftsman has achieved this intention or whether I attribute to the Minister more generous and honourable intentions than he actually has.
If a man works outside the State, unless he is in the State at the time of his dismissal, working here, he cannot be entitled to redundancy payment here.
Why not?
If he is working in another State he comes onder the redundancy scheme in that State.
He may or may not. Supposing the scheme there is the same as ours and it requires four years to qualify in that State and Aer Lingus sends him there after twelve years in Aer Lingus he may not come under the redundancy scheme of that particular State.
I have made inquiries of organisations who sent employees overseas and they are all of the opinion that no firm would deprive a man of redundancy for the sake of bringing him back to declare him redundant.
It seems an extraordinary way to legislate, to inquire of existing firms as to what their intentions are and, having got assurances from them, to legislate from that and say that there is no need for this provision.
Does the Senator see any man being willing to go abroad for a company unless he is reassured that he will be treated fairly in these circumstances? Firms who have these employees overseas, from inquiries I have made, have satisfied me that these provisions are adequate. It is hard to cover every case.
It seems to me that the Minister is a bit naïve. There are many employers who would send employees abroad for a short period without assurance from the employer as to what he will do.
If you are working in Ireland and go abroad you are still covered for a year after leaving.
It may not occur to a man to seek such assurance. To say that people seek their rights gives them credit for more self-interest than they possess. While it is true that the Minister tracked down State companies——
There are more than State companies.
We are moving into a period when, please God, Irish firms will be much more active in exporting abroad and a much wider range will be occupied in sending people abroad and having direct representation abroad by agents. Many firms the Minister has not thought or heard of yet will be sending people abroad in these circumstances and that these people should be deprived of redundancy compensation because of the fact that the Minister sought assurances from companies at the time the legislation was brought in and that these new companies were not ones which had applied at the time seems to be absurd.
It should say that somebody who is an employee of an Irish firm and is working abroad shall be excluded from the redundancy scheme here if he falls within the compensation of such a scheme abroad. Such a clause would be simple and easy to administer and is a much easier way of legislating than making inquiries from a few companies the Minister heard about and taking no responsibility for future firms sending people abroad in the years to come.
I do not know that the Senator's amendment would do any good either. Most of the people employed by firms abroad are not people who would come under redundancy schemes anyway. They are in the higher paid brackets. In any event, I am not sure that the amendment would cover the situation either.
If he went on strike when abroad and then came home can he claim it?
Persons ordinarily working in Ireland will be covered. If a person goes abroad for a year he will be covered for that year. If he thinks the firm will work a quick one on him—I do not know why the Senator thinks employers are so bad —he does not have to go and the employer will have to declare him redundant at home.
The Minister is talking in complete unreality. If a firm in Dundalk sends a man to a firm in Newry——
There is a scheme there.
——will he automatically come under the scheme in one year? I understand from Senator Murphy that it is two.
The Senator is assuming that the firm will not bring him back to get credit.
If we thought every firm would cover redundancy we would not need the Bill. This is why we have the Bill. There would be no need for it if you could leave it all to the goodwill of the firms.
Why should a firm not want to send employees where they want to go? Surely a firm can see further than its nose.
It may well be that a firm had an unsuccessful experiment in establishing a shop and had no intention of going there again and the situation would not arise——
I tried to find a way round it but from the inquiries I have made from the firms that send people out, I am satisfied that my provisions would be adequate.
I do not think that is an answer. I have suggested a way and while the Minister has cast doubts upon its operability——
Your suggestion is that an employee should be entitled to benefit having worked for that State for that firm; if he is not entitled to redundancy payment elsewhere from that firm he should be entitled to it here though he is working abroad?
I suggest the Minister should have another look at this between now and Report Stage.
Whilst an employee is working abroad would he be paying into the redundancy fund and would he have any rights in the fund built up?
The hypothetical man of 12 years here if he wanted to go abroad would not be contributing to the fund.
He would still get credit for the 12 years?
If brought home. People will be getting credit on the first of January for one year. I have already gone into this matter fully because it was raised in the Dáil.
Amendment, by leave, withdrawn.
Section agreed to.
Section 26 agreed to.
SECTION 27.
An Leas-Chathaoirleach
On section 27, the Committee has already been informed that amendment No. 29 is out of order.
Amendment No. 29 not moved.
Section 27 agreed to.
SECTION 28.
I move amendment No. 30:
In subsection (1), line 18, to delete "eightpence" and substitute "fourpence".
An Leas-Chathaoirleach
It is suggested that amendments Nos. 30 and 31 be taken together, with separate decisions if necessary.
This amendment was carefully drafted to deal with the situation which might arise in the eventuality of amendment No. 29 being ruled out of order, the purpose being to reduce the employers' contribution so that there would be a gap left to be filled by a State contribution. I think my amendment is in order.
An Leas-Chathaoirleach
If the Senator argues too far in that direction it may put amendment No. 30 out of order.
This is what I had in mind. I think that the fund should be a tripartite one, for the reasons mentioned in the Dáil. The case is strong and I made a case for it on Second Stage. I do not think that the Minister rebutted it completely. I was, unfortunately, unable to be present during his reply, for which I apologise, but I read it diligently and I do not think that he rebutted adequately the case made for the State's responsibility for redundancy in circumstances where you have a large protected sector built up by State policy and in the process of being adapted, somewhat painfully, equally as a result of State policy. That argument stands, and the Minister has not refuted it. Accordingly, I think that the fund should be tripartite, and the best way is to reduce the employers' contribution so that it would not be solvent and the State would not recover the advances it would be making.
I do not want to be disorderly in discussing something ruled out of order.
An Leas-Chathaoireleach
Amendment No. 30 has not been ruled out of order.
The point is that to reduce the contribution the employer pays would diminish the possibility of a viable scheme.
On the hypothesis that the State should not contribute.
We discussed the question of a State contribution and it was ruled out of order.
How can one repeat an argument after being ruled out of order?
An Leas-Chathaoirleach
The Minister is not out of order in discussing this.
The Minister is not the only one in this House.
Might I put it that if I failed to convince Senator FitzGerald he has failed to convince me too? I made the argument on Second Reading.
Not very accurately.
You are both out of order. Amendment, by leave, withdrawn.
Amendment No. 31 not moved.
I move amendment No. 32:
In subsection (2), line 24, to add at the end "provided that this contribution shall not be payable until the employee has been in the employment of the employer for a period of not less than one year".
What bothers me about this is that under this scheme the employee is going to be forking out contributions from the time he is employed and if he is in employment where there is mobility, such as the building trade, he will be in the position of contributing continuously his fourpences and there is no hope of his ever getting a halfpenny out of it. The Minister stated that he will introduce schemes for the building trade and dockers and so on, but this will be dealing with only part of this problem, because even in more stable industries the turnover of employees can be quite high. In some the turnover of female workers is as high as one-third per annum, this, of course, being added to by emigration and getting married. For male employees a ten per cent turnover exists even in some stable manufacturing industries. Quite a number of workers will be contributing for long periods to a fund from which there is no hope of their receiving anything because the nature and character of their work makes them so mobile. It seems to me that if the worker will not benefit from the fund until he has been four years in employment he should not have to contribute into the fund in his first two years in the employment, because there are mobile workers who are never going to get benefit from this fund. I suggest that my amendment is a more reasonable provision which I hope will get some support.
The Senator has the happy knack of judging everything his way. It is accepted in principle that some people contribute to schemes like this and to social welfare schemes who will never benefit. This is the principle in any viable scheme of this sort. Apart from the type of people the Senator mentions there are bound to be thousands of employees who know from the nature of the job they hold that they will never be redundant, but they will be contributing. There are people in certain employments in this country —anybody can think of examples— and we all know that they will not become redundant, but they will contribute fully. The argument in favour of having everybody contribute is the argument of the viability of the fund. If a person does qualify and he becomes redundant he will get credit for the first four years. Why not, therefore, pay contributions for the first four years? As I said before, there will be numerous people from the 1st January on who, if they become redundant, will benefit without contributing at all. These are the loose ends of any such scheme.
I appreciate that there will be a number of loose ends, and gainers and losers, but it seems hard that there should be people who have no prospect of benefiting and could readily be exempted. I can see that there are numbers of others who cannot be exempted, such as those in good employment. The Minister could not identify good employment and say that redundancy is unlikely there by pointing to particular firms, for this would be undesirable and would be presumptuous, because even good employment can disappear. I have suggested a practical solution to part of the problem, which would eliminate the hardship in relation to the more mobile workers whether or not the Minister devises a scheme for the building trade. This offers a way out of part of the problem, a simple way out, and it is a pity not to accept a solution of part of the problem simply because there will be a lot of rough and smooth for other workers.
We will have to accept broadly that people will contribute who will not benefit.
I accept that broadly, but where we can get out of a part of the problem by a simple provision I do not accept it.
There will be other cases that we can think of too.
I am sure there will.
We will have people contributing who are not going to benefit, if we want a viable scheme.
To have a viable scheme made up of contributions from mobile workers in the building industry is a bit thick.
The alternative is, as I told the House, to exclude them from the general scheme until they would have a special scheme of their own. The arguments, which I accepted, were in favour of putting them in as pressure to have a special scheme would then be formulated. If they are not in the main scheme, there will be no incentive for special schemes for them.
Where will the pressure come from, from the workers or the employers?
It will be from the employers as well as the workers.
I am not proposing to exempt employers but to eliminate an injustice on the employees.
You could not describe it as injustice. No employee has objected to the fourpence a week. In fact the Senator is the only person objecting to it.
I accept it as a general principle but it is one which efforts should be made to mitigate in certain cases.
Why?
As a matter of justice.
Why not exempt all the others in all the other spheres?
Because it is practicable in this.
It is not.
The Minister has said it is practicable but he says he does not want to do it.
Amendment, by leave, withdrawn.
Amendment No. 33 not moved.
Section 28 agreed to.
SECTION 29.
I move amendment No. 34:
In subsection (1), line 12, to delete "one-half" and substitute "two-thirds".
I put this down originally to establish the rationale of the one half. Due to the failure of an amendment of mine in the past, the employers have to contribute two-thirds to the fund. It therefore seems fair, prima facie, that they would get back two-thirds by way of rebate. I do not know how or why one half was arrived at. One would have thought the ratio would have been similar to the ratio of the contributions to the fund. There is a particular problem in the building industry. There is uncertainty as to the burden of such payments employers may have to bear and it creates problems in the submission of tenders. It has been represented to me by the building industry that they would like to see the whole of the amount drawn from the fund but, it seems to me that as the workers will subscribe one third, that would be unfair. However, there is a very definite case in favour of the figure mentioned in the amendment.
I thought the Senator argued that the building industry would not be paying redundancy payments because they would not have any employees who would qualify.
Many individual employers, probably most, will not be, but there are many individual long-term workers, and such employers will find themselves in difficulties.
There will be people benefiting in the building industry. Therefore it is not an injustice to ask them to contribute.
It is an injustice in respect of people who are employed for a short time and who will be mobile.
I was not thinking of the people who contribute. I regard the lump sum as the amount of money which represents the rights built up by the workers in a firm. It will be the rights built up by the workers, which the employers owe them. There were certain other considerations that had to be thought of. One is that if employers were responsible for the whole of the lump sum, they might be reluctant to go ahead and make the necessary adaptive changes which would keep the firm viable. We had to reach some arrangement to help them and this is to be done through rebates from the fund. The amount of the rebate had to be on an assessment based on conjecture. I admit there was an element of guesswork involved. I made provision for extra rebate in conditions of extra notice and this brings the figure up to near enough what the Senator wants.
I accept that.
Amendment, by leave, withdrawn.
Section 29 agreed to.
SECTION 30.
Amendment No. 35 not moved.
Section 30 agreed to.
Section 31 agreed to.
SECTION 32.
Question proposed: "That section 32 stand part of the Bill."
This section says that when an employer is insolvent and the whole or part of the lump sum remains unpaid, the employee may apply to the Minister for a payment under the section. The employer has to be completely insolvent. It does not seem to be open to an employer to plead to the Minister that the payment of the lump sum would represent such a burden on the employer as to hinder survival and recovery, possibly to the detriment of some of the employees. It seems some provision should be made to meet such cases. In such cases the cost involved in redundancy payments would be the last straw which would put the firm out of action. The firm should be able to apply to the Minister who, if satisfied, could make provision so that the firm would not have to go out of business altogether and the remaining employees be laid off. It may be said it would be an extreme case but it is one in respect of which we should make provision.
The section is to protect the worker. The concern is that the worker should not be deprived of benefit by an employer saying he should pay half, or so forth.
The proposal is to give the worker the lump sum and then let the Minister go to the trouble of getting it off the employer. I do not know, after that, if the employer may say: "We cannot afford it," or: "We will have to close down." It is difficult to see what would be the limit of the claims made under that heading.
Subsection (1) says——
I did not read paragraph (a). That, in fact, is achieved there.
Question put and agreed to.
Sections 33 to 37, inclusive, agreed to.
SECTION 38.
Amendment No. 36 not moved.
Section 38 agreed to.
SECTION 39.
I move amendment No. 37:
In subsection (2) (a), lines 12 and 13, to delete "who shall be a practising barrister or solicitor of 7 years standing at least" and substitute "and not more than 3 vice-chairmen who shall be practising barristers or solicitors of 7 years standing at least".
An Leas-Chathaoirleach
Amendment No. 39 is consequential and may be discussed now.
I mentioned this problem on Second Stage. In so far as the vice-chairman will preside over divisions of the tribunal and that any vice-chairman will be acting in the same capacity as the chairman— the chairman having no other role than to act as chairman of a particular division, no other role in relation to deciding cases—I cannot understand the grounds on which the chairman must be a barrister or solicitor of seven years standing but not the vice-chairmen, who will fulfil exactly the same functions in deciding cases. I believe there is a case that the effective chairman, the man presiding at any division, should in fact be a practising barrister or solicitor. This is recognised in relation to the chairman of the tribunal so that in one division you have said this is essential for the man presiding and for the other divisions that it is inessential. That seems to me to be illogical. It seems to me that all of them should have the same requirements applied to them.
In the Dáil we had quite a lot of opposition to the lawyers from the Labour Deputies. They objected to a lawyer being appointed at all.
Opposition to lawyers from the Labour benches does not impress me any more than from the Fianna Fáil benches.
Or from the Fine Gael benches.
Having argued for the chairman being a lawyer of seven years standing, I did see the logic of the vice-chairmen being of the same qualification. If my arguments for the chairman were right because in the divisions of such a tribunal it could happen that on many occasions the man in the chair should have some expertise in the law. I am probably on the record as saying that—I was thinking out loud. However, what I am inclined to do in this case is wait until the chairman is appointed and discuss it with him. I do not know what his advice would be but I think it is quite possible that the three appointed vice-chairman would be so qualified. I would like to leave it open until the chairman is appointed and see what he thinks. It may be that some of the vice-chairmen should be so qualified and some of them should not be lawyers, depending on an estimate of the number of cases in which legal expertise would be required in each subdivision.
I am glad the Minister accepts my point about the illogicality of this in its present form. I think the only thing the chairman does that the other people do not do is divide the tribunal into divisions and tell the chairmen to go as presiding officers of the divisions. Neither of these two functions seems to require a person to be a barrister of seven years standing. The reason for that requirement is that he is presiding and I think the Minister accepts the logic of this. I do not quite understand the logic of accepting the logic of it and not doing anything about it.
There might be types of cases which will not require legal expertise. I think I will discuss it with the chairman. He may have suggestions that two should be legally qualified or more but I would like to leave it open until the chairman is appointed.
As the Minister recognises my point, I think we can leave it in his hands.
Amendment, by leave, withdrawn.
I move amendment No. 38:
In subsection (2) (b), line 14, before ", and" to insert "agreed between the organisations and bodies referred to in subsection (4) of this section".
This, in a sense, is an alternative amendment.
You will get no lawyer at this rate.
What I am worried about is that there is no provision here that the vice-chairmen should be neutral people. There is at least—and Senator Ó Maoláin will accept this on this occasion although he argued it with me before—some attempt to secure that the chairman will not be an employer or an employee because he must be a barrister of seven years standing. This is a recognised way of securing somebody who will be neutral and impartial, subject, of course, to all the vagaries of human nature to which Senator Ó Maoláin made reference in this connection. However, in the case of the vice-chairmen they can be anything at all. They could be three trade unionists; they could be three employers. The Minister will say what Minister for Labour would be such a lunatic as to appoint——
Three employers.
Three employers or three trade unionists for that matter. This may be so but the law should be seen to be fair as well as being fair and it seems to me that there should be provision that the vice-chairmen and, indeed, the chairman possibly, although in his case it is less important because there is some provision about impartiality, should be agreed appointments so that there is an assurance that they are acceptable to both sides.
I would love if we could get agreement. I would be anxious to have agreement but the Senator did not hear in the Dáil the Deputies whom we must take as representing the trade union attitude speaking of lawyers and saying they did not want any lawyers as vice-chairmen. Now the Senator wants the vice-chairmen also to be lawyers I do not think we would be able to get agreement on this. Apart from that I feel there could be a protracted delay if there has to be discussion about the vice-chairmen and we will want the tribunal working quickly. I would like to have agreement if it could be done.
I am not convinced that you could not get agreement. The fact is that for all arbitration the chairman has to be agreed by both sides and while there is a certain amount of to-ing and fro-ing there has never been any difficulty in getting agreement.
It would be grand to look for agreement but to be bound by legislation to get agreement could mean you got no chairman or vice-chairmen.
In view of the fact that the Minister thinks the requirement to reach agreement might militate against that end, I suppose the best thing would be to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment No. 39 not moved.
Government amendment No. 40:
In subsection (2) (c), line 15, to delete "8" and substitute "12".
Senator Murphy raised the point on the Second Reading of the number of ordinary members who would be appointed to the appeals tribunal and he made a valid point I think that it might be difficult to get four trade union representatives to devote that much time if there was a very busy period for the tribunal to the business of the tribunal. I agreed with that. He suggested that it would be prudent to increase the number of ordinary members so that you would have some trade union member available from their several other duties. I accept that and this amendment of mine proposes to increase the number of ordinary members from eight to twelve, that is, six from the trade unions and six from the employers as distinct from the chairman and vice-chairmen.
I do not think the Minister and myself will quarrel about this. I still feel that he is confining himself a bit too much. Since the Second Reading I had an opportunity of inquiring into the situation in Northern Ireland and I am told that there are, in fact, ten trade union representatives on a panel to be called for according to need to sit on tribunals in connection with redundacy schemes and there are an average of three appeals per week. However, they tell me that the number of appeals were particularly heavy for the earlier years of the operation of the scheme.
I do not think there is any question of expense involved in this because there is a provision later on in subsection (10)
A member of the tribunal shall be paid such remuneration (if any) and allowances as may be determined by the Minister with the consent of the Minister for Finance.
I would imagine that what applies in Northern Ireland is that the people who serve on the tribunal are paid some allowance per day. There is no fixed salary. It is an allowance for each day that they are required to sit. Therefore, if there are 20 on a panel as against the 12 proposed by the Minister it does not involve any increase in expenditure. The expense would be related to the number of sittings, not to the number of the panel. Therefore, there cannot be any quarrel about that aspect of it and I still think the Minister might accept our amendment. It only means that these people would be available to be called on to sit on the tribunal. Nothing else is involved. I still think that with six trade union representatives nominated by Congress there could be some difficulty in arranging meetings which would be inconvenient to everybody because trade union officials tend to be rather busy and they are not readily available for meetings like this. It would be a better insurance to have a bigger number on it.
Might I warn the Minister that the probability is that no matter how many he appoints from the Congress they would in all probability be members of the Labour Party. I hope, at any rate, irrespective of that aspect of it, that he will see the sense of giving himself a wider number here for this type of work if we are to judge from the experience in Northern Ireland which is a smaller area but not necessarily a smaller number of industrial employees. The experience there is that there are ten trade union people available for the panel. Even there they find difficulty in getting people available because of the number of appeals that come up and the call on the time of the trade union people. I should imagine that the same problem would arise equally so on the employer side. If you are going to have six employers as representatives on the employers' side, as suggested in the Minister's amendment, those people might not be readily available because they would be busy people. Again, it would be more prudent that the number available should be bigger. I hope the Minister will see the sense of the amendment proposed by us.
I thought that the number I suggested, twelve, was reasonable.
Six from each side. I am saying ten from each side.
The tribunal in Northern Ireland does other work. They do work in relation to the Industrial Training Act so there is more work for such tribunals there.
I have been told that they do other work but the majority of those claims are, in fact, claims under redundancy.
Can you visualise how the members to deal with particular cases would be selected? If you have a big number it would be very difficult if the amount of work does not warrant it.
This would not make the problem any more difficult. In fact, it would make it less difficult. You would have a list and a rota system and you would go to the first name on that particular rota. If that person is not available you would go to the second man and if he was not available you would go further along the line. It would be a larger field from which to draw. It is only a matter of convenience. It should not be too tight, particularly as I think there is no extra expense involved.
There is no extra expense but I thought that twelve would be adequate.
Would it not be open to the Minister to put in not more than twenty but initially only to appoint twelve and see how he got on?
You overlooked the fact that Senator Murphy said they would be politicians and members of the Labour Party.
He will have to put up with that.
It does not worry us.
If we make it twenty there will be difficulties. I am satisfied that twelve is enough. In fact I thought that eight would be enough. I realise in other committees that we have had trade union people who were very busy in regard to their own work. I think twelve is enough.
There is another aspect of this. You would find it necessary to have people from the employers' side and from the trade unions who would know the problems of a particular industry. They might not be dealing with the problems of that industry but they would want to know the circumstances of the employment. They would then be better able to serve on the tribunal.
I do not know whether it would arise. I say that twelve is enough.
Amendment agreed to.
Amendment No. 41 not moved.
Section 39, as amended, agreed to.
NEW SECTION.
I move amendment No. 42:
Before section 40 to insert a new section as follows:
"The Tribunal shall make an annual report to the Minister which shall be published."
This is just a proposal that the tribunal should make an annual report available to the Minister and that this should be published. It would be useful that this should be done. Much useful information on the problems of redundancy could be obtained from such a report. On the whole, we are ill-informed on matters of that kind and I think the tribunal should publish a report which would give us some picture of any problems which arise in relation to redundancy. This would help us in regard to the general formulation of a social policy.
I have no objection to that. I intended that there should be an annual report and that I would make provision for that in the regulations. I do not know whether it is necessary to put that in the Bill. If you feel that I should I would prefer to put it in under Section 39 as I think that this would be more appropriate.
I am quite happy with that.
An Leas-Chathaoirleach
Is the amendment withdrawn?
It is accepted in a different place.
An Leas-Chathaoirleach
Will this be put down on Report Stage?
If the Seanad agrees, we could amend it now or I could bring in an amendment on Report Stage.
An Leas-Chathaoirleach
This has been passed in pristine form. The Minister has undertaken to bring in an amendment on Report Stage. Will the Senator agree to this?
Amendment, by leave, withdrawn.
Section 40 agreed to.
Sections 41 to 46, inclusive, agreed to.
SECTION 47.
I move amendment No. 43:
To add to the section a new subsection as follows:
"() The provisions of any special redundancy scheme under this section shall be no less favourable to excluded employees than the provisions of this Act."
I do not need to say very much on this as it is very clear that it would give justice to the employees who will be concerned with the special schemes which the Minister has in mind.
The intention would be that any benefits of a special scheme introduced under this section would not be less favourable than the main scheme produced under this Act. The protection is that I would bring in schemes in consultation with both sides, the employers and the workers who would be concerned with situations requiring a special scheme. I cannot conceive a situation where proposals would be acceptable that they would be generally less favourable than in the main scheme. The fact that we would have to get agreement means that the worker's position is well protected. On the other hand I think if you bring in this provision you may restrict the making of changes which people drawing up a special scheme might wish to include in it. For instance in the circumstances of a particular type of employment they might want different provisions as between the amount of the lump sum and the amount of the weekly payment. In some respects it might be beneficial to have other provisions—for example, those concerned might want different levels of contributions—and still have a scheme that both sides desire. If this amendment is accepted the parties involved would not be able to make such changes. Senator Miss Davidson's problem will be overcome as the workers are protected. In addition, any such scheme will, of course, be subject to approval by both Houses of the Oireachtas.
Amendment, by leave, withdrawn.
Question proposed: "That section 47 stand part of the Bill."
I was coming to a class of employees, particularly part-time employees. There is a real problem which has been uncovered by a survey carried out under the auspices of the Minister's Department. I want to quote from the survey which was given to me during the tea hour. Of the unemployed in Drogheda at the time the survey was carried out 45 per cent were at work. Of these some had secured work at the time the register was inspected and their names taken from it. At the time the survey was carried out 32½ per cent, that is one-third of the unemployed, were and had been at the time the register was inspected on part-time employment. Of all the employed in Drogheda one-third were in part-time employment, and 22 per cent had been in employment for the same firm for over a year, and 11 per cent of the employed in Drogheda had been working for the same employer for over ten years in a part-time capacity, so the firms employing people working part-time, not regularly employed, is an example. It may well be that Drogheda is unrepresentative. It is highly improbable that this situation is confined to that town. There is a problem here that we have not understood before. There has been no attempt to assess the situation behind the bare bones of the unemployment register which is a true picture of unemployment.
The survey which is carried out under the auspices of the Department must make us realise our policies in this respect. I had the impression when I made this point that the Minister was not prepared to accept it but the facts are there in the report which he has.
In implementing section 47 and in seeking out classes to whom the special provisions should be applied this whole question of employees in long-time employment should be specially considered.
I have the powers in section 47 if it proves to be necessary to use them. Whatever the power to include such people, they are specifically excluded from section 4. I shall have a look at that. The Senator does not want to raise again the drafting which was not clear with regard to the classes who were excluded by section 4? On specific exclusions here which can be brought into the Bill under section 47, some Senators thought that the fact that people who are included are people who are insurable under the Social Welfare Acts means that those excluded by implication could be brought in. This is not so by my reading. I have been looking at the provisions and my reading would be that the exclusions by implication under section 4 could not be brought effectively under section 47. However, I shall look at the matter again.
Question put and agreed to.
SECTION 48.
I move amendment No. 44:
To delete subsection (1).
There is a most undesirable development here. First of all, I want to raise with the Minister whether there has been consultation with CIE and the unions concerned with regard to this proposal to exclude from the compensation provisions, which are conditional in relation to the closure of a railway line, employees who will join the service of the Board after the passage of this Act. I am not aware of any such consultation. I should imagine if there had been this consultation it would have been a matter for discussion between the representatives of the management and the unions and the top consultative council where we could deal with the general principles involved.
There are legislative provisions for consultation for railway employees who lose their employment and who are in a worse position by reason of a closure of a railway line and service. These have existed since 1924. In the railway and transport legislation we have had down through the years, we have always had provision for the employees affected. Now we propose in the Redundancy Bill to withdraw this from future employees of CIE. I do not think this is the proper place to do it. I do not think there is adequate consideration or consultation in regard to the problem. It is not warranted. You are dealing with a special problem when you are dealing with a rail service. The railway people affected are railway men, not readily interchangeable with other employees. Because of this tradition and problem, the Oireachtas since 1924 has made special provision to deal with such a situation.
I am also concerned with the inevitable complication it will make for the unions and management in dealing with any rail closure in the future. You will have a situation for many years where the majority of the people affected will be covered by the legislation now in operation and the provision for compensation payment to them. The minority who might join them since the passage of this Act would be dealt with in a completely different way. It would be a very invidious position for the management and the unions concerned and would give rise to the greatest problems.
I do not think that this is a good idea. I think that we should allow the special provisions covering redundancy arising out of the closure of a railway to continue. We have always recognised that there are special problems involved, and it is not good enough to say that now that we are making redundancy payments available generally we should withdraw from the people we have put in a special position since 1924 the special cover provided for them, and give them something which compares very unfavourably with what has been traditional to their employment. I am opposed to this. It is quite ill-advised. I do not think that there has been any consideration of the problem by the management and the unions concerned and it would create the greatest difficulties for both sides in the future.
There is another aspect in that some of the employees affected by a rail closure like this would not, in fact, come under the benefits of this Redundancy Bill. They would be people in what is termed excluded employment, not contributing to social welfare and, therefore, excluded from any cover in this respect. I think this is ill-advised, and I am, therefore, asking that subsection (1) should be deleted altogether from the Bill. I agree with the other subsections. I agree that if you have a situation that people are entitled to redundancy payments under the provisions of earlier transport legislation they should not get redundancy provided in this Bill and where they do not get any benefit they should be refunded the contributions they paid in respect of this Redundancy Bill. But to say that from 1st January next people who are employed on the railway and are then made redundant because of the withdrawal of rail services should not get the provisions which their fellow employees will continue to get for a number of years, and should be treated quite differently, would be most invidious, and create the greatest difficulties for everybody concerned. I hope that the Minister will agree to delete subsection (1).
I should like to move the adjournment of the debate until tomorrow morning at 10.30 a.m.
An Leas-Chathaoirleach
If the House wishes, we could perhaps finish the amendment before adjourning.
We could go on for the next half hour but I think it would be more advisable to adjourn. We have had experience before of this and we never really finished in reasonable time once we extended the time.
The Seanad adjourned at 10.5 p.m. until 10.30 a.m. on Thursday, November 30th, 1967.