Before we take up consideration of the amendments tabled for this Bill, it would be well if I indicated that amendments Nos. 14, 15, 19 and 26 are out of order because they were not raised in a substantial manner in Committee.
Redundancy Payments Bill, 1967: Report and Final Stages.
I do not know whether these are my amendments. This is part of the difficulty that arises from the very fact that Senators have not got before them at the time they are drafting these amendments the report of the proceedings. It seems to me, in the light of the difficulty of drafting amendments without having a copy of the proceedings, Senators could know whether or not the matters have been dealt with in a substantial manner on these amendments. If it is possible to waive Standing Orders they should be waived so as to allow any amendments that subsequently appear on the paper to be taken.
The Chair has moved that these amendments are out of order. The matters were not raised at all in the course of the debate.
They may not be amendments put down by my side of the House. What I am concerned with is that it is difficult for anybody to say whether they were or not because as far as the report of the proceedings of Thursday is concerned we have not got that report.
Thursday's debate is available.
It has not been circulated to us.
I move amendment No. 1:
In page 5, to delete lines 34 and 35 and substitute:
"3. (1) This Act except sections 28 and 46, shall commence on the passing of this Act.
(2) Sections 28 and 46 shall come into operation on such day as the Minister appoints by order."
This amendment is an attempt to get cover for employees who are laid off around Christmas by employers in some cases to evade payment for the two holidays, Christmas Day and St. Stephen's Day, and also for other workers who may be let off for various other reasons at that time. I have a letter in my possession from an employer who has warned his employees that he will let them off around the Christmas period. As the Bill stands at the moment these men will be outside the scope of the Redundancy Bill. In this case the employer is not acting in an unfair manner. He had some arrangement in regard to the sale of land for building purposes with Dublin Corporation. He now finds that he will have to give up the land. Therefore, he will not require the workers after the Christmas period. If the Minister could change the date of the coming into operation of this Act he would save a lot of hardship for these people. It is only a matter of changing the few days. I should like the Minister to give consideration to it. Outside this case of which I am aware there must be quite a number of others who will suffer by the way the Act is at the moment.
On Committee Stage we dealt with a rather bigger principle trying to get the operation of the Bill as a whole back-dated to the date of publication of the Bill. What we are seeking here is that as soon as the Bill becomes law these two sections should come into operation automatically, and not have to wait a further period until the Minister makes an Order bringing the Bill into operation.
I know the Minister is anxious that the Bill should be enacted as soon as possible and that he intends the provisions should operate as from 1st January next. We in the House have been prepared to co-operate with him in having the various Stages dealt with today despite the difficulty we were in because the report of last Thursday's proceedings is not before us. Therefore, the Minister might co-operate with us and if it is possible and practicable, move forward the operative date of these two sections. It would get over the difficulty presented by Senator Miss Davidson.
The Senator understands that this is another request for retrospection and I have made myself clear on that point. No matter when the commencement date is, there will be people who will be excluded. The intention is to get the measure in operation quickly but for administrative reasons this could not be done before 1st January. I wish to point out that any employer does not have to exclude people from the provisions of the Bill. People who are laid off will come under the Bill.
They are being dismissed.
The Senator mentioned a lay-off.
I used the word but I should have said "dismissed".
Any employer who has workmen who become redundant at this stage and who lays them off——
These men are redundant and they are being dismissed.
I should like to hear details of this. It is a matter we could deal with privately.
I will give the Minister the details.
I should prefer to deal with it in that way.
I am surprised at the Minister's suggestion that this amendment involves retroaction or retrospection. All the amendment asks for is that these two sections shall commence on the passing of the Act. That does not mean retrospection.
It does not become law on the passing of the Act.
It becomes law on its passing. It may not become operative.
We could not get a scheme in before 1st January.
It does not really mean retrospection.
Amendment, by leave, withdrawn.
Government amendment No. 2:
In page 5, to delete lines 41 to 43, and substitute the following:
"(2) This Act shall not apply to a person who is normally expected to work for the same employer for less than 21 hours in a week."
During Committee Stage Senator FitzGerald expressed doubts as to whether the subsection as drafted fully conveyed the intention he wished expressed. The intention, as he expressed it, is that where a person is normally expected to work for fewer than 21 hours a week, he does not benefit from the cover of the section. The amendment meets the intention the Senator expressed and I am grateful to him for having drawn my attention to it.
I thank the Minister for having accepted this suggestion.
Amendment agreed to.
I move amendment No. 3:
In page 5, line 45, before "a" where it secondly occurs to insert "or by".
I put down this amendment because the wording at the moment does not appear to include a person who might be employed by the household, but outside it. The wording states "in a private household". It struck me that a gardener or other worker living in a lodge adjoining the house would not be covered. If we put in the words "or by" it would bring in cases of that kind.
It is a drafting matter. The draftsman is satisfied that the term "in" is comprehensive enough in the context in which it is used. It includes people working for private households. Therefore, my advice is that the amendment is not necessary.
It covers a worker in a cottage or a lodge?
Yes. The term does not refer to a physical situation.
Would it not be more prudent to insert these words instead of relying on the draftsman's opinion? The Bill will have to go back, with amendments, to the Dáil so there is no great principle involved.
I should have to go back to the draftsman again. He is satisfied it is comprehensive enough.
Amendments, by leave, withdrawn.
Before I come to deal with amendment No. 4 I should like to deal with a question on the section raised by Senator Fitzgerald of the Labour Party during the Committee Stage. He seemed to think there was a contradiction between subsections (1) and (2) of section 4. The draftsman has been consulted on this and assures me that subsection (1), which states "subject to this section", is sufficient.
It is difficult to understand how anybody would have to work 21 hours to qualify when, as I pointed out, under the Social Welfare Acts, if a man comes to work on a Monday and if he is ill or has an accident, he gets one day's pay but must pay his social welfare contribution from that. It does not mean he has to work 21 hours.
The point I dealt with was in relation to a possible contradiction in the drafting of the subsections.
I am still not convinced there is not a contradiction. Can anybody tell me who works less than 21 hours a week?
It refers to a person who normally works more than 21 hours. It is his normal number of hours, the number he is normally expected to work each week. However, the drafting is all right.
I hope it is.
Does this mean that if a person does part-time work and works 20 hours but it is divided among two or more employers they are entitled to the benefits of the Redundancy Act? Is it only for a single employer?
Yes.
Suppose they work 21 hours and there are two employers are they entitled?
They are not entitled.
Would they be entitled to pay social welfare?
Yes. It is a separate consideration.
Thank you.
I raised several points on this section during Committee Stage.
An Leas-Chathaoirleach
The Chair is becoming very perturbed about the way the debate is proceeding.
It is my fault. I led the House astray by bringing up the point on section 4 raised by Senator J. Fitzgerald which I thought should be raised. I want to say on this matter which relates to the scope of the Bill that we had quite a bit of discussion in regard to sections 4 and 47 on Committee Stage. Section 4 of the Bill deals with the scope of the scheme and section 47 is concerned with the question of special schemes for excluded classes. It was suggested by a number of Senators that the opening clause of section 47, that is, that "the Minister may, in respect of a class of employee excluded from the Act by section 4" and so on gives the Minister power to bring in a class of employee not comprehended in the scheme or to introduce special schemes for classes of employees not comprehended in the scheme. I did not accept that interpretation at the time and I told the House what my mind on it was and what the draftsman had been asked to provide for.
I have since consulted the draftsman again on this point and I am quite satisfied, having consulted him, that section 47 gives the Minister no power at all in relation to bringing a person within the scheme itself. In so far as special schemes are concerned the Minister's authority is limited to the preparation of special schemes for classes who are specifically excluded by Order under section 4, subsection (4). The position is that before any class of employee who is not insured for all benefits under the Social Welfare Acts could be brought within the scope of the Act amending legislation would be necessary. I do not think that anyone could object to that because to extend the scope of the Bill to cover classes not comprehended would be a major step and would involve other important considerations. I feel that the provision in the Bill ensures that the Minister may certainly bring in people who are excluded specifically by section 4 or by an Order under section 4, subsection (4). He can bring them into special schemes but he cannot bring in people who are excluded by the general definition.
I wonder if I could ask the Minister—
An Leas-Chathaoirleach
I think any further discussion on this could only take place on the Fifth Stage.
In view of the importance of this matter, would you not agree to recommit?
An Leas-Chathaoirleach
Yes, if that is the wish of the House.
The Minister seems anxious to give an explanation.
I have given all the explanation.
An Leas-Chathaoirleach
Would the Minister agree to recommit the section?
Yes.
Bill recommitted in respect of section 4.
I do not know if there is any point in this. I know the Minister's explanation of his interpretation of the provisions in the Bill. I accept that interpretation. I was in no doubt about that. I think I said that before but what I want to underline is that the explanation of the interpretation given by the Minister does not make the Labour Party any happier. It only confirms us in our unhappiness. It only confirms our uneasiness at the exclusion from this Bill of people who are not sufficiently covered by social welfare.
I should like, now that we have recommitted in respect of this section, to ask the Minister if he would say something about the points I raised on the last day, particularly in relation to subsection (2) of this section. I had two points operating in the opposite direction. One was the problem of married women who might be working more than 21 hours but who it would be inappropriate to include in this Bill in the ordinary way and whose inclusion would create a number of problems for employers. I would like to hear what the Minister has to say in regard to that. The second point referred to part-time workers working less than 21 hours a week, who are substantial earners employed with the same employers. I gave examples in relation to Drogheda where I pointed out that no less than 11 per cent of the people who are unemployed have been engaged in employment working less than 21 hours a week but who have received an adequate sum of money to live on, including unemployment assistances and what they earn and, therefore, did not seek alternative employment. It seems unfortunate to exclude such people. The Minister said he would look into those matters before Report Stage and I would be glad to hear him on this now.
In the event of my being convinced one way or the other, I have power to deal with them by inclusion under section 47. Those are specifically excluded people.
That is if they are excluded by section 4. That would cover the case of part-time male workers working less than 21 hours and earning more than a certain sum.
The Senator is talking about an amendment which he proposed.
I mentioned a certain sum. The Minister feels in relation to a certain situation in regard to part-time workers that he can amend section 4, subsection (2) by an Order under section 47. Is that right?
Section 4, subsection (5).
What about married women?
This is a problem I have had under consideration from the beginning. I started off with the intention of fixing 21 hours as the dividing line for inclusion in or exclusion from the scheme. Afterwards, mainly as the result of representations regarding the position of married women in part-time employment in the confectionery trade, I raised it to 25 hours a week.
I understood that this would result in the vast majority of part-time women workers, the people to whom the Senator referred, being excluded from the scheme. In the Dáil strong views were expressed that the 25 hour a week limit was too high and that it should be reduced and, as a result, I brought the figure down to my original intention of 21 hours a week. This may result, I understand, in a large number of married women in the confectionery trade being brought within the scope of this scheme. From inquiries I have made I understand that quite a number of these people may be in a position to benefit from being in the scheme and that perhaps it is reasonable, therefore, that they should be covered. The Senator will see that the movement of the hours either way has disadvantages. If you extend the number of hours you may include people whom it is not desirable to include because of certain principles and if you reduce them you are excluding other people. There is a balance of advantage and disadvantage either way and it is as a result of discussions in the Dáil that I selected the 21 hours. I can, in the light of experience, make a change in the limit under section 4, subsection (4) if I wish to do so.
I very much doubt if this is so. This refers to a class. A class of persons is a group of people in a particular type of employment.
I do not think so. We discussed that last week. To specify a class I do not think you need anything but to select a certain class of workers and declare them to be a class.
Would the Minister not think it would be preferable to proceed by way of something on the lines of "provided that the Minister may by order exclude any group of married women workers working for 21 and 25 hours a week" or something along those lines to give him power to deal with the situation?
I have the power to deal with it.
The Minister is satisfied he has the power?
I have had representations from both sides and, indeed, the Senator has argued both sides of the case.
Oh yes, in different instances.
I have the power to deal with the matter if I find from experience that a certain type of person should be included or excluded.
The Minister feels that that power is given to him under subsection (4) and that such a group as married women in the confectionery industry could be described as a class of workers?
There would be no doubt about that.
I am happy that the Minister has the power to do this.
More important, he thinks he has.
In the particular instance I mentioned if there is a case for excluding people it should be done before the scheme comes into effect and before the employers are put to the expense of setting up records of people who may not benefit from the scheme. It is a matter of some urgency.
The difficulty is obvious from the fact that the Senator did in principle argue both sides of the case. It is only when you come to make the law cover every possibility that you get into trouble.
The fact is that full-time and part-time employment of married women is such that you cannot, in fact, choose a particular number of hours per week which will provide a solution for all groups. Therefore, the Minister requires the power to vary this and to consider in what cases he ought to vary it and in the case of the married women where there would be a problem in setting up records which might then be redundant, unlike the married women, if the Minister decided to exclude them. It is a matter of some urgency for him to decide what should be done regarding the confectionery industry before the scheme comes into effect. I would urge him to regard this as a matter of urgency.
My information is that a substantial number of these married women could expect to benefit from the scheme to which they contributed. If we ask them to contribute, then they should be able to benefit from it.
Yes, I am content to leave it with the Minister on that basis. I know that he has to weigh both sides of the case.
We now seem to be arguing about bringing people out from the cover of this scheme. The point I want to make is that in spite of the assurances of the Minister that before he would make any decision to extract any group or class of people from the scheme there would be consultation with the trade union representing them.
It is obvious that, if I were going to do what has been suggested by Senator FitzGerald, I would have to consult both sides and it is unlikely that I would get agreement quickly at any rate.
Section, as amended, agreed to.
Section, as amended, reported and agreed to.
Government amendment No. 4:
In page 6, between lines 19 and 20, to insert the following:
"(2) Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder."
The question of whether regulations made under this Bill should be laid on the Table of the Houses of the Oireachtas was raised on Committee Stage. I indicated that I had no objection to such an arrangement. Senator FitzGerald and Senator Dooge have amendments tabled but only in relation to regulations made under section 18. I am willing to accept that but I do not see the logic of limiting the proposal. I feel if we accept the principle that regulations should be laid on the Table of the Houses of the Oireachtas it should apply to all the regulations made under the Act. Therefore, I brought in this amendment of my own.
If I may say so, I think the Minister's amendment is better than the amendment put down by my colleagues.
Hear, hear.
It was I who raised the point and I am sorry to say I was not sufficiently familiar with the Bill at the time to be able to say that there was no such question contained in the Bill. I must confess that I am very gratified that the Minister has brought in this amendment to deal with all regulations because there are at least five sections in the Bill under which regulations will be made, one of which will include a section to make it an offence to do or not to do certain things, that is section 58. What I would like to find out is how it came about that in a Bill of this kind it was proposed to exclude what is now regarded as common form in every Bill, the provision that these regulations should be laid before each House of the Oireachtas. To me that is quite a remarkable omission. If it was deliberate it certainly would be a very undesirable shift in policy on the part of the Government to leave it out. I am glad at any rate that the Minister has brought it in in the way in which he has, but I am puzzled as to how it came about that it was not included in the Bill seeing that there are so many regulations being made under it. It may strike some people as being a bit wasteful to put in these provisions in Bills that regulations shall be laid before the Houses of the Oireachtas. I would like to assure the House that there are some Senators who get regulations regularly and read every one of them and, indeed, we shall see the result of that soon I expect.
After that ominous statement, I would merely like to thank the Minister for going beyond what we had sought. I feel, perhaps, our vision was too narrow in this particular instance. We were concerned with a particular problem. I am very grateful to the Minister for not only accepting our amendment but applying this principle to the Bill as a whole and not just to this section of it.
Amendment agreed to.
We did not get an explanation.
The Senator did not hear me. I said: "Marbh le tae agus marbh gan é." I cannot please you every way.
I am very pleased but I should like to know how it came about.
I move amendment No. 5:
In page 11, lines 30 and 31, before "terminates" to insert "(which conduct is described in writing)".
Before we go into another sub-committee, amendment No. 5 was discussed on Committee Stage. This section deals with disentitlement to redundancy payment because of dismissal for misconduct. We were seeking where an employer terminated an employee's employment by reason of the employee's conduct and thereby prevented him from becoming entitled to redundancy pay because of the dismissal, the termination should be stated because of the conduct leading to the dismissal. I am in difficulty here because the Minister, I think, undertook to consider this matter between Committee and Report Stages. He has another amendment down, amendment No. 6, on the very same point. I am far from clear as to what his amendment means. I am in difficulty, therefore, about the amendment. Perhaps the Minister in replying to amendment No. 5 might indicate what he means by amendment No. 6 and whether we might know that it meets the points made.
Amendment No. 6 is for the purpose of clarification, following a suggestion by Senator Garret FitzGerald.
I do not think it affects Senator Murphy's point. It is a clarifying amendment. Senator Murphy's point is just as valid with it as without it.
We discussed this on Committee Stage. I had another look at it and, as I see it, the amendment is not necessary. If an employee is dismissed and the employer maintains that the employee had been guilty of conduct meriting dismissal, then the employee may question the employer's charge and get redress through union action or in the courts. This would be under Common Law. I felt we should not do anything with this Bill against what is normally a man's right under Common Law. We are dealing here with redundancy. If a man is dismissed because of redundancy he gets redundancy payment. If he questions the employer's right to dismiss him for his conduct this is something a man's union should pursue or he can take it to court where he would have a right to say that the employer's charge was incorrect and he should not have been dismissed.
I do not see that we are taking from the employer's rights. The purpose of the amendment is to put an obligation on the employer to state his right in dismissal. It operates against many good employments where the union has reciprocal machinery but this is a very small minority of employments. In employment generally the employer is not under any obligation to say why he is dismissing a person because of conduct. Where it debars the employee from getting redundancy pay, I think it is not unreasonable to put the obligation on the employer to state his right for the reason of the dismissal, or the conduct of the employee meriting dismissal.
Amendment, by leave, withdrawn.
Government amendment No. 6:
In page 11, line 31, to delete "it" and substitute "the contract because of the employee's conduct".
This is for the purpose of clarification of a point to which Senator FitzGerald drew my attention, on an apparent defect in the wording of subsection (1) of section 14. The draftsman has looked at it again and has suggested that this amendment should improve the draft and clarify the intention.
Amendment agreed to.
We have already dealt with amendment No. 7.
Amendment No. 7 not moved.
It is suggested that amendments No. 8 and 20 be taken together.
Government amendment No. 8:
In page 16, to delete lines 20 to 40, and substitute the following:
"(2) An employee who under his contract of employment ordinarily works outside the State shall not be entitled to redundancy payment unless, immediately before he commenced to work outside the State, he was domiciled in the State and was in the employment of the employer concerned and unless—
(a) he was in the State in accordance with the instructions of his employer on the date of dismissal, or
(b) he had not been afforded a reasonable opportunity by his employer of being in the State on that date.
(3) In computing, for the purposes of this Act, for what period of service a person was in continuous employment, any period of service in the employment of the employer concerned while the employee was outside the State shall be deemed to have been service in the employment of that employer within the State.
(4) Where an employer who has worked for his employer outside the State becomes entitled to redundancy payment under this Act, the employer in making any lump sum payment due to the employee under section 19 shall be entitled to deduct from that payment any redundancy payment to which that employee may have been entitled under a statutory scheme relating to redundancy in the State in which he was working."
I undertook on Committee Stage to look again at section 25, which deals with the position of people who work only or partly abroad and their position under this Bill. In consequence of what was said in the Dáil and on further consideration of the section, I tabled this amendment which will effect a substantial improvement in the position of employees who may be sent abroad. It meets fairly fully the criticism of the section voiced by Senators during the Committee Stage. My amendment does not alter the position of a person who ordinarily works in the State. His position remains as it was before. His entitlement to redundancy payment will not be prejudiced if he should be temporarily outside the State when he became redundant. The changes I propose refer solely to a person who is ordinarily employed outside the State for an Irish company and is declared redundant. If my amendment is accepted, such a person, provided he fulfils the other conditions of the legislation, is entitled to redundancy payments if he is in the State when he is declared redundant, or if he is not in the State because his employer did not give him a reasonable opportunity of returning to the State before becoming redundant.
This is an important modification of the existing provision which requires that a person who ordinarily works outside the State shall not be entitled to redundancy payment unless he is in the State at the time of his dismissal. It meets the situation which some Senators apparently feel may occur, although I have more faith in Irish employers than to regard it as anything more than a remote possibility. This is where an employer sends an employee abroad, and while the employee is abroad, declares him redundant without affording him a chance of returning and getting redundancy payment.
A further improvement is in the case of the employee who ordinarily serves abroad: all his service while outside the State will be reckonable for the purposes of the scheme, provided his particular employment would, if he were in this country, be insurable for all benefits under the Social Welfare Acts.
I am also providing that if an employee is entitled to a redundancy payment from a statutory scheme in force in the country outside the State, his employer may offset payment against any lump sum which the employer may be liable for under section 19 of this Bill.
Under the terms of this amendment a person recruited outside the State by an Irish employer for service in the country where he is recruited will not be entitled to benefit under this Irish redundancy legislation. In other words, to qualify under this Bill a person must have been residing in Ireland and in the employment of the employer concerned before being sent abroad to work.
Neither will a person be entitled to redundancy payment if he is working outside the State and elects not to come home when he is notified that his services are no longer required in the particular job in the particular place. One final point is that when a person becomes entitled to redundancy payment while residing outside the State, I am confining the benefit to the lump sum. I do not think we should consider making weekly payments from our fund here to people residing outside the State and I have an amendment to that effect.
The amendment meets what I had in mind and I am most grateful to the Minister for introducing what is, as he has said himself, an important change. It is difficult for a Minister to make significant changes in a Bill going through the House and for his action in this matter, at such short notice, we should be grateful to him for an amendment which is well designed to meet the point raised. I knew the amendment I proposed on Committee Stage was defective but I put it down to raise the issue. The Minister's approach is a much better answer to the problem.
Amendment agreed to.
I move amendment No. 9:
In page 24, between lines 34 and 35, to insert the following:
"( ) The Tribunal may also decide what constitutes suitable employment".
This section proposes to give power to the tribunal to decide what constitutes suitable employment in cases where there might be wide differences of opinion as to what was meant by the word "suitable".
The Bill as it stands gives power to the Tribunal and the effect of putting in this amendment would be to single out one individual cause of dispute. Under subsection (15) of this section, if an employee is dissatisfied with an employer's decision he may appeal to the Tribunal. This obviously includes such matters as whether the alternative employment is suitable from the employee's point of view. If a deciding officer should disallow weekly payments because of refusal by the employee to accept suitable alternative employment, the emmittee ployee is entitled to appeal to the tribunal. I do not think it is necessary to spell it out further.
Amendment, by leave, withdrawn.
Government amendment No. 10:
In page 25, between lines 5 and 6, to insert the following:
"(18) The Tribunal shall submit an annual report to the Minister which shall be published".
This was sponsored originally on Committee Stage by Senator FitzGerald. I accepted the principle of the amendment but I considered at the time it would be more appropriate to insert the amendment as a subsection of section 39 rather than as a separate section. The amendment was then withdrawn on the understanding that I would put down another amendment.
Amendment agreed to.
I move amendment No. 11:
In page 27, between lines 46 and 47, to add to section 47 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 moved this amendment on Committee Stage but put it down again as I cannot recall what the Minister said. I have not the report of the proceedings and have not been able to check up.
The Senator more or less accepted what I said at the time. I said my general intention was that any benefits of a special scheme introduced under section 47 would be no less generous than the benefits of the general scheme. I also pointed out that such schemes will be formulated by agreement between both employers and unions which would be satisfactory to both sides, as far as this is possible. I said that if the definition was reviewed further there might be circumstances in which adjustments in the scheme, which would be acceptable to the workers, would prevent them being accepted by the workers. Any special scheme will be formulated in consultation with both sides and it will have to be approved by the Oireachtas. The Oireachtas will have the final say.
Amendment, by leave, withdrawn.
Government amendment No. 12:
In page 28, lines 25 to 35, to delete all words from and including "either" in line 25 down to the end of the section, and substitute "by agreement between the parties concerned in the scheme or arrangement."
The Seanad objected on Committee Stage to the provision of paragraph (ii) of section 49 which would vest in the Minister power at his discretion to wind up an existing scheme or arrangement for redundancy payment. I explained it was the intention that this power would not be used to impose an amendment of any private scheme and that the provision was inserted because of the possible need to amend statutory schemes which would not have within them any provision for amendment. I appreciated the apprehension expressed about the paragraph and undertook to have a look at it again. On further examination I found that because it is no longer necessary to retain the provision giving the Minister power in this matter I could delete the paragraph. I think that meets the wishes of Senators.
This amendment meets the point made in a Committee Stage amendment. We welcome the amendment made by the Minister, perhaps for different reasons. Therefore, we do not propose to move amendment No. 13.
Unfortunately, lacking the report of the last day's proceedings, I am in difficulty. I raised another point on which the Minister was to come back but he has not indicated his position. It involved the process of offsetting.
I replied to that on the last day. Senator Murphy supported the Senator then. Senator FitzGerald was on to the question of offsetting arrangements. I told him it had been discussed at great length by the Manpower Advisory Committee during the drafting stages of the Bill and that it was not possible to get an agreed view from them on this. Understandably, the employers favoured it and the unions opposed the idea strongly. Their opposition was based generally on the contention that it was illogical to equate the functions of a pension scheme with those of a redundancy payments scheme.
It was contended by the unions that workers contributed to a private scheme and that any benefits that might accrue to them from the scheme would be nothing more than what they had earned or partly paid for and that, even in a non-contributory scheme, there is an element of employee contribution. It has been suggested that because there is an offsetting arrangement in Britain we should follow it automatically. In the British scheme, however, the employee pays no contribution, whereas the employee pays one-third of the full contribution here. Another point, which is regarded as important, is that in the British scheme offsetting is optional. I think I mentioned that the last day. It is my understanding that a great many employers exercise the option in this regard and do not apply the offsetting arrangement.
I thought the Minister was to discuss it further but my recollection may be incorrect.
What bothered me the last day was that representatives of both types of opinion asked me to do something which I knew the trade unions were strongly against.
If the trade unions are against it, I am against it.
Amendment agreed to.
Amendment No. 13 not moved.
Amendments Nos. 14 and 15 are out of order.
Amendments Nos. 14 and 15 not moved.
The Chair suggests that amendments Nos. 16 and 17 may be discussed together.
I move amendment No. 16:
In page 30, to delete lines 48 to 51 inclusive and substitute the following:
"The weekly payment to a person entitled thereto shall be payable from the date of termination of employment and payment thereof shall commence not later than a fortnight after the date of termination of employment and the first payment shall include any sum then accrued due."
Perhaps this was the only contentious point on Committee Stage of this Bill. It is contentious really for one reason. When the point covered by this amendment was raised the Minister did not see fit to give any explanation of the procedure he proposed to adopt. We do not exclude that he may have reasonable and good reasons for instituting an arrangement for which during the fortnight of redundancy an employee will receive nothing. We accepted that there could be difficulties where redundancy occurs on a large scale, that there might be delay in making the first payment and the Minister's Department might require up to a fortnight to get through those formalities.
It seems rather a long time but it seemed reasonable that he should have that time if he felt it was necessary in complex cases. After having agreed to that part of what the Minister proposed, we brought up the point that if such a delay occurred there were no grounds we could see to justify not making any payment in respect of that fortnight. The postponement was justified but no payment whatever seemed completely unjustified. However, recognising that there might be some reason for this, I asked the Minister if he would explain the reason for this procedure. We could extract no information from the Minister on this point. No reason was given and, accordingly, it seemed proper to put down an amendment which would give him the power he said he needed for this procedure to delay the payment up to a fortnight while at the same time it would ensure that when payment was made it would also be made in respect of this fortnight.
The Minister may have had some difficulty the last day in recollecting what the reason was because this is a complex Bill. I should like to hear him today on this matter. Unless he can put forward some reasonable justification for not paying this sum for the first fortnight we will have to press this amendment.
I think we got to the stage the last day that we could not agree.
This is the same amendment as the Labour Party Senators put down on Committee Stage. We have repeated it here. The purpose of it is the same. It is to delete the two weeks waiting period. We made a point on Committee Stage about some resentment among workers at this waiting period. I had to correct myself and say that in regard to unemployment benefits the waiting period was three days and even there that created a lot of resentment because workers really felt they were insured, had contributed for those benefits, and felt they deserved something without having to wait for this waiting period.
The Minister would not agree with that. He said that if you started two weeks earlier with benefits you ended two weeks earlier. That is no consolation to workers who are made redundant. A man cannot say on a Friday night to his wife that he has not anything for her. It is no good if he has to say to her that she will have to wait until Friday fortnight when he gets payment. The Minister made the point that in the meantime the worker would have got a lump sum. We feel that the worker should not be expected to have to spend this money while he is waiting for the weekly payment. He should not have to maintain his household out of this lump sum during the first two weeks of redundancy. I thought as a result of our rather long debate on this subject that we had got the Minister's sympathy. May I say that we found the Minister very accommodating?
Hear, hear.
The Minister has been very accommodating in meeting our points both in the Dáil and in the Seanad. We acknowledge also that he started off on the four week period and was prevailed on to reduce it to two weeks. We hoped we could prevail on him to eliminate it altogether. I am certainly not clear as to why there should be a waiting period at all. Maybe there is an administrative difficulty. I was trying during the time available to glance over what was said last Wednesday and Thursday on this point during Committee Stage, and I am still not very clear as to why the Minister is objecting. I was hoping to see an amendment put down by the Minister on this point that maybe he would come down to a week's waiting period instead of a fortnight. He disappointed me on this particular one. Perhaps we could prevail on him, with the help of other Senators, to meet our point of view in respect of this waiting period and eliminate it altogether.
I have no great hope that the Senator will convince the Seanad when he has not convinced me on this point. First of all, there is no docking. If a man becomes entitled to redundancy payment by years of service he will get that payment when he is redundant. If he does not use up his credits immediately he will get them later.
If he is lucky enough to be redundant twice.
I would not call that lucky.
I said "lucky" in inverted commas with some sense of irony.
The point is that it is not a docking and, indeed, it would probably favour elderly workers who might find it difficult to get employment. The first two weeks are covered by the lump sum and the smallest lump sum is for a two-week period. I started off with four weeks and the Dáil convinced me that two weeks would be enough, but I think this is as near to being reasonable as I can get on this matter, that is, if the Seanad is to judge my reasonableness on that basis.
The Minister has come near to giving an explanation. I would almost describe it as coming clean in the matter because it now transpires that what is involved here for the ordinary worker who is in employment for a few years and loses his employment and who gets another job within a reasonable time is that he is expected apparently to use his lump sum for the purpose of living on. In fact, the lump sum becomes in these cases a fraud.
No, I tried to make it clear on Committee Stage that I did not equate the lump sum with weekly payments on that basis but that the lump sum would make sure there was no hardship.
But there could not be any hardship if the Minister paid the weekly payment during this period. He is giving with one hand and taking away with the other, and this renders the lump sum fraudulent except for employees with quite long service, because in other cases they have to use it to live on and in any case where the employee is not "lucky" enough to be redundant for a long period and for a second occasion he will, in fact, lose out.
The Senator will see that if a person has been such a short period in employment that his lump sum is totally used up in the two week waiting period, then he cannot be described as having something taken from him merely because he is going to have a short period of payments since he is going to get the full payment that is due to him.
He will not unless he is out of work a second time.
A person with such a short period of service will not have a long period of weekly payments.
If he finds a job within two, three or four weeks, depending on the number of years service involved, he will not go on benefit again unless he becomes redundant a second time. This seems to me to make a fraud of the lump sum payment except in cases where the payment is large, where the service is long and even in those cases although the whole thing is not taken away part of it is taken away and is not recovered unless the employee is out of work for a long period or becomes redundant on a second occasion. These seem to me to be very odd grounds on which to justify —if that is what the Minister is trying to do—this particular provision and I cannot accept the implied argument here. I had suspected that what lay behind this was this kind of thinking and suspected the Minister was reluctant to disclose his hand in this matter, but it is uncharacteristic of the Minister's approach to this Bill and, indeed, uncharacteristic of the spirit in which the Bill is conceived, for the problem to be approached in this way. We ought to press the Minister on this point because the justification he has given, far from being a justification, is an exposure of a method of thinking which I would have thought to be alien to this Bill and which does not appear in any other provision of this Bill and should not be in the Bill.
Amendment negatived.
Amendment No. 17 not moved.
I would refer Senators now to the printed list of amendments accepted on Committee Stage. Senator Miss Davidson on amendment No. 18:
I move amendment No. 18:
In Schedule 1, in the new paragraph substituted in Committee for paragraph 5, to delete "seek or" in lines 4 and 5.
I raised this matter on Committee Stage and told the Minister that we felt his new section was quite suitable if we could have the words "or seek" deleted. Now I put this amendment in but somewhere along the line a misunderstanding took place or a clerical error was made and it has appeared in the form in which I did not intend it to appear. It should have appeared as: "delete the last line of the new paragraph and substitute "accept suitable gainful employment". That is at Schedule 1, the new paragraph 5.
Is amendment No. 18 being moved?
The amendment I put in as it stands at the moment reads "to delete ‘seek or'" but it leaves that part about gainful employment out and I feel it is necessary to put it in there. Otherwise the amendment is quite dangerous. I want to make it clear that it must be "suitable gainful employment" and the Minister said on Committee Stage that he would seek advice on the matter. I made the case that to have to seek employment was something that was attached to assistance schemes and it never appeared in insurance schemes and this redundancy scheme is an insurance scheme. I would be glad if the Minister would consider putting in those very necessary words "accept suitable gainful employment".
I seek clarification. Does Senator Miss Davidson suggest that amendment No. 18 is not phrased as she put it in?
It is on the sheet.
May I clear the point? Senator Miss Davidson wishes to amend her amendment by incorporating the insertion of the word "suitable" as well as the deletion. Is that not correct?
An error was made somewhere along the line between myself and the office dealing with amendments. In the new section 5, I proposed to delete the last line of the new paragraph—the Minister's amendment last week—substituting "accept suitable gainful employment". That is what I understood I put in but somewhere—I am not clear where, it could have been on my part or on someone else's—it went wrong. The intention was to delete the last line and substitute "suitable gainful employment". This is the amendment which I move if I am permitted to do so.
Should we agree on Senator Miss Davidson's amendment as originally proposed as the one we should consider?
Acting Chairman
Will the House agree to accept the amendment on the sheet and discuss it, the one Senator Miss Davidson now proposes rather than that which appears at 18?
If I could explain, I think the term "gainful employment" does include the implication of suitable gainful employment. The inclusion of the word "suitable" might pose a mechanical problem.
We have done it previously here. We did it on the Succession Act, section 21. We amended here on the floor of the House.
There is one point which I discussed in Committee, that is, the question of "seeking". On the question of seeking alternative employment, I do not think there is anything unreasonable in expecting an unemployed person to try to get new employment. What I had in mind was where the employment service arranges for a person to present himself for interview with a prospective employer the person concerned should at least attend for interview. If we had not "seek or" he need not attend for interview and then what is meant by "seeking employment"? I do not think that it is too much to expect the employee to go and have a look and see whether the employment is suitable for him. I would make it clear there is no intention of operating this in an unreasonable way by requiring employees to produce certificates saying that they had gone looking for employment. The Senator should accept that when a man is told there is suitable employment available and that such and such an employer is looking for his type, the employee should go and look and see the employer and seek an interview.
I think this is putting another condition on a man drawing insurance, a condition that was never there before. Any decent type of workman will seek employment but the case the Minister has put up is of not seeking. The Minister's case could not be said "as seeking" if the employee goes for interview. He should do everything possible to get a job no matter who offers but I still do not think that the "to seek" part could possibly relate to what the Minister put forward. It is dangerous if he has to seek or accept gainful employment even if we take out "seek or". That in itself is dangerous. A carpenter might be asked, as Senator Murphy put it, to sweep the yard. It has always been held in Social Welfare and other schemes that you do not have to take work in a lesser category and the carpenter in sweeping the yard might be gainfully employed but not suitably employed. It is necessary to insist on the word "suitable" going in as well as taking the "seek or" out. I do not agree with what the Minister says—that by refusing to go for interview the man is not seeking work.
I would not expect a man to produce evidence that he is looking for employment. If he refuses to go, I would accept that as not seeking. I could accept the intention of the amendment to the amendment without accepting the amendment itself.
Could you not put "refusal to accept"? That would be accepting.
If he is sent by the employment exchange and does not go he has not been offered and he does not refuse to accept.
Any dispute would be referred to the tribunal and they would have regard to what is required.
May I ask the Minister to put in "suitable"?
I will accept "suitable".
Acting Chairman
May I take it that Senator Miss Davidson will withdraw amendment No. 18 and that the Minister will put in an amendment with the word "suitable"? That would clarify the position.
Credit where credit is due, and thanks to the Minister.
Acting Chairman
Amendment, by leave, withdrawn.
I move amendment No. 18a:
In Schedule 1 in the new paragraph substituted in Committee for paragraph 5, line 5, before "gainful" to insert "suitable".
Acting Chairman
Is the House agreeable?
Is "gainful" being deleted?
It will be "suitable gainful".
Just insert the word "suitable".
Amendment agreed to.
Acting Chairman
Amendment No. 19 is ruled out of order and amendment No. 20 was discussed with amendment No. 8.
Amendment No. 19 not moved.
Government amendment No. 20:
In page 31, between lines 45 and 46 to insert the following:
"14. A person shall not be entitled to a weekly payment unless he is normally resident within the State."
This relates to a lump sum being paid to persons outside the State.
Amendment agreed to.
Acting Chairman
Amendment No. 21 was discussed with amendment No. 3.
It is consequential on amendment No. 3. It is considered to be an unnecessary change in the drafting.
Amendment No. 21 not moved.
Acting Chairman
It is suggested that amendments Nos. 22, 25 and 27 be discussed together.
I move amendment No. 22:
In page 37, line 4, to add at the end "or illness".
The proposal to insert "illness" in line 4 of page 37 and in 27 "illness" before "sickness". There are three of them. It is merely an attempt to tidy up the Bill a bit. In some cases "illness" is in and in another place "sickness" is in. It is merely to tidy up the paragraph in the section.
The Minister is well qualified to distinguish the difference.
For the purposes of the Bill "sickness" and "illness" are synonymous.
In one paragraph we have "illness" and in two others we have "sickness".
They are interchangeable.
I thought it better to have them uniform.
Amendment, by leave, withdrawn.
I move amendment No. 23:
In page 37, to delete lines 11 to 13 inclusive and substitute a new subparagraph as follows:
"(c) any period by reason of any cause (other than the voluntary leaving of this employment by the employee) not mentioned in clauses (i) to (iii) of (b) but authorised by the employer."
We spent some time debating this on Committee Stage and at the end of it I was confused as to whether I was trying to improve or disimprove the Bill. I withdrew the amendment by agreement of the House for the purpose of putting it down again because I suggested the Minister might look at it and decide whether my idea of improving the Bill was correct. There is no great dispute between us.
I found it difficult to get across the intention of paragraph 5. There was misunderstanding about it. The main purpose of the paragraph is to maintain or preserve continuity of employment in cases where there is dismissal followed by re-engagement. If an employer sent an employee to a training course the continuity of employment would not be broken. The same applied if an employee were out on sick leave—the continuity of employment would be maintained regardless of the duration of the leave. The provision is to protect workers from employers who would use a device of dismissal and re-engagement. When making this I thought it better to have a limit and I fixed 26 weeks. Then there is the limit of 18 months for sufferers from chronic illness. I thought it better to allow a reasonably long period. As I told the House on the previous occasion, the question preventing collusion between some employers and workers also had to be considered.
I referred to a particular category on Committee Stage, tuberculosis sufferers. Under present arrangements many of them are allowed much longer than 18 months.
An employer can leave a man out for many years. It is only in case an employer would use the device of dismissal and re-engagement to break the continuity of employment that this would act to protect the worker. An employer might say: "You are out so long now that I will dismiss you but I will take you back." In that case the worker would lose his continuity and start from scratch.
Amendment, by leave, withdrawn.
Government amendment No. 24:
In page 37, between lines 16 and 17, to insert the following:
"(2) During the year 1968 subparagraph (1) (b) shall have effect as if ‘52 consecutive weeks' were substituted for ‘26 consecutive weeks'."
I accepted the principle of this amendment on Committee Stage but I considered that the provision could be more appropriately inserted as a subparagraph rather than as a separate paragraph and I undertook to have it re-tabled.
We thank the Minister for having met the point.
I take it the consequential verbal and arithmetical changes will be made in order to give sense to this. This is subsection (2) and there is no subsection (1).
We will make this subsection (2) and the original draft will be subsection (1).
Amendment agreed to.
Amendment No. 25 not moved.
Acting Chairman
Amendment No. 26 has been ruled out of order.
Amendments Nos. 26 and 27 not moved.
Government amendment No. 28:
In page 38, lines 22 and 23, to delete ", but excluding overtime premium".
There was a great deal of Committee Stage discussion on amendments designed to have regular overtime taken into account when calculating a person's normal weekly remuneration for the purpose of this Act. Two amendments were tabled and the House was undecided which was the better. I accepted that where a man's contract of employment required him to work a certain number of hours of overtime each week, the pay for that overtime should be taken into consideration in deciding the weekly remuneration. I was, however, impressed by the view expressed that where a man, apart from his actual contract of employment, was expected to, and did, overtime on a regular basis for a certain number of hours each week he, too, was entitled to have this overtime regarded as part of his normal weekly pay. Having considered the matter I decided to sponsor these amendments to give effect to that view. The principle is recognised in amendment No. 30 which applies to a person expected to work overtime regularly. His weekly remuneration will be taken to be his earnings for his normal weekly work together with his average weekly overtime earnings.
Amendment No. 31 indicates how "average weekly overtime earnings" are to be calculated. In proposing that these earnings be averaged over a 26 week period well removed from the date of redundancy I am recognising that there would probably be a considerable tapering off in overtime in the period immediately preceding redundancy.
Finally, Senators will have noted that I am limiting the arrangement to employees who are "expected to work overtime regularly". This is because I consider it is only where regular overtime is a normal feature of a man's employment that the overtime payments should be regarded as part of his "normal working remuneration". I could not accept that casual overtime or overtime worked in exceptional circumstances for a short time should be taken into consideration. I think the amendments meet what we all wanted to do the last day.
I was making the point that where overtime was a feature of the man's employment it was only reasonable that it should be taken into account in determining the redundancy paid because of the loss of employment. We have not had an opportunity of really studying the amendments put down by the Minister. On the face of it they seem to meet the point and I would like to thank the Minister for this rather major concession which he is making in the Bill. The Minister has been quite reasonable in everything except the waiting period and I thank him for meeting the points we made on Committee Stage in regard to overtime. The Labour Party amendments dealing with the same matter will not, therefore, be moved.
I would also like to thank the Minister for accepting this reasonable change.
Amendment agreed to.
Amendment No. 29 not moved.
Government amendment No. 30:
In page 38, line 24, to add at the end:
"together with, in the case of an employee who is expected to work overtime regularly, his average weekly overtime earnings as determined in accordance with paragraph 16".
Amendment agreed to.
Government amendment No. 31:
In page 38, between lines 24 and 25, to insert the following:
"16. For the purpose of paragraph 15 the average weekly overtime earnings shall be determined by ascertaining the total amount of overtime earnings of the employee concerned in the period of 26 weeks which ended 13 weeks before the date on which the employee was declared redundant and dividing that amount by 26.
17. For the purpose of paragraph 16 any week during which the employee concerned did not work shall be disregarded and the most recent week before the 26-week period mentioned in paragraph 16 shall be taken into account instead of the week during which the employee did not work."
Amendment agreed to.
Government amendment No. 32:
In page 38, line 43, to delete ", but excluding overtime premium,".
Amendment agreed to.
Amendment No. 33 not moved.
Bill, as amended, received for final consideration.
Next Stage?
Now.
Question proposed: "That the Bill do now pass."
I think we have done a useful job of legislation in regard to this particular Bill. The Dáil also had a number of amendments to make. Indeed, it reached us in a very different form from the way it arrived in the Dáil. I am glad that the Dáil will now have to face another piece of work in regard to the amendments we made here. It is difficult to calculate those things but it seems to me that the Seanad have made something like 21 amendments to this Bill, 11 of which were introduced by the Minister on Committee Stage and the remaining ten amendments have come from the Opposition side of the House, in most cases through the Minister adapting Opposition amendments to meet the particular needs of the Bill, as he saw them. Therefore, we have all contributed to the Bill in its final form. Apart from the one exception which, in the main, is somewhat difficult to understand, amendment No. 16, the Minister has met us very fairly on all points we raised.
We are grateful to the Minister for the consideration he has given to our proposals. I think the Bill, as now amended, is an extremely useful and valuable Bill. Both Houses of the Oireachtas and the Minister have played their parts in ensuring that we have a piece of legislation in which I am sure it will be found there are flaws, but which is workable and useful and a very long time overdue. It is a matter of regret that it has taken so long in getting on to the Statute Book. There is something to be said for the spur of free trade that it makes us face social problems.
Redundancy is a continuing problem. Even under normal conditions there is a considerable amount of it. It is not highlighted in the statistics but it is a hardship which is created and about which nothing has been done. Now, at last, something is being done. It was worthwhile making an effort in getting this Bill in the most useful form possible. We recognise that the Minister will be back within a year or two, as he has forecast himself, with amending legislation.
It could be a different Minister for Labour.
I put it on a short-term scale.
I hope he will be equally reasonable.
I am sure any future Minister for Labour will be equally reasonable. Certainly any Minister for Labour from our side will meet the present Minister in opposition as fully as he has met us in regard to this Bill.
I would like to thank the Seanad for the contribution it has made to this Bill. As I said at the beginning, it is completely new territory and a great deal of this legislation must be experimental and based on good guessing. I intend in the light of the experience gained in the operation of the Bill, to make any changes which may be found necessary in due course. I would be very happy to return to the Dáil and the Seanad to make any improvements which we find necessary and possible. I might say that the contributions in the Seanad have been well worth while.
I should tell the Seanad that the work behind this Bill represents a great deal of co-operation between employers and the trade union movement with my Department. It is seldom that this work, which goes on all the time, is given any special credit. I would like, therefore, in the Seanad, to thank representatives of the employers and the trade unions for the great deal of work they have put into preparing this Bill.
As I said before in the Dáil, I anticipated the Bill in making administrative arrangements and ask the House not to take any objection to this so that we could have a scheme ready for the 1st of January for the benefit of workers. I think we will have a scheme on that date. The Bill represents the result of the work of both sides of industry and all sides of the Dáil and the Seanad. On behalf of my own Party I will say that their contributions have had to be made in private but despite that they were very well worth while.
Question put and agreed to.