Section 1 is concerned with definitions for the purpose of this Bill. I should like to raise one point with regard to the definition of "employee". Looking at this definition and comparing it with the definition in the Redundancy Payments Act, 1967, to which this Bill is very closely tied, I notice there is a slight discrepancy between the two. I should like to ask the Minister if there is any particular significance in the amendment which is made here.
Minimum Notice and Terms of Employment Bill, 1972: Committee Stage.
Question proposed: "That section 1 stand part of the Bill."
I am not aware of any significance. If it departs from the definition in the Redundancy Payments Act, it is not for any ulterior or other motive.
Regarding the definition of "employee" as it relates to the scheme or to local authorities as employers, how does this affect, for example, the roadworker who may have five years' continuous employment with a particular local authority? The engineering section then finds that money is drying up and a number of notices are given for dismissal at the end of a particular period. These people do not get a week or a fortnight's notice. They are usually told on a Tuesday or Wednesday that they will cease to be employed on the following weekend as there is no money in the funds. This happens particularly at this time of the year. I should like to receive an assurance from the Minister that this type of employee will be brought within this Bill.
From what the Senator has said I take it this would be a lay-off, not a dismissal. "Lay-off" is also defined in the definitions, and would not break the continuity.
I am sorry I cannot accept that because very often a man is dismissed after perhaps three, four or five years. There is no cheque the following week or fortnight except what he receives from the labour exchange. An employer can get the same benefits and still get his pay. There is no point in quibbling as to whether a man is dismissed or laid off. When he is disemployed he is dismissed. Three months may elapse before he can be re-employed.
Yes. This Bill is dealing with minimum notice of dismissal. There is a vast difference between a lay-off and a dismissal. The rights a man has accumulated in continuous employment give him certain rights for continuity in this Bill. The duration of notice given to him, whether two, three, four or eight weeks, depends on the period of his employment. It also applies to his redundancy, whether he has been in continuous employment. Lay-off does not break continuity but dismissal does. If he is dismissed he has to be given the notice laid down in this Bill. If he is laid off it is a different thing.
I regret I cannot accept the Minister's explanation. We are referring to the interval between men being laid off and being dismissed. The fact remains that they are both unemployed. If we are to carry this to its logical conclusion an employer in an industry may quite easily say these men are not dismissed they are being temporarily laid off. Then they do not come within the terms of this Bill. Is that correct?
Yes. If the Senator looks at paragraph 3 of the First Schedule to the Act it states:
A lay-off shall not amount to the termination by an employer of his employee's service.
It could not be more clearly defined.
I had intended to raise this particular matter of lay-off and its implications in the Schedule. Now that it has been raised on this section I should be glad to have a direction as to whether I should raise the point now. It might be more appropriate on the Schedule, as the Minister has indicated, to discuss its implications there as far as this Act is concerned. We might preclude the possibility of a debate on the Schedule by continuing the debate now.
It is a matter for the House. If the House so wishes we will debate it now.
I suggest that the implication of the definition of "lay-off" occurs on the Schedule and we might have a more fruitful debate if we left this point now and had a debate on the First Schedule, if the Chair would permit that.
We can do that if the House is agreeable.
Still on section 1, if I might return to the original point I made about the definition of "employee", the Minister indicated that there was no particular significance in the change of the definition here. My problem was that section 2 of the 1967 Act defines "employee" and says that "employer" which is a defined term in that section and "employment" are to be construed accordingly. When we come to section 1 of this Act we find it says "and cognate expressions can be construed accordingly". I should like to know if there are any "cognate expressions", that is expressions cognate to the word "employee", other than "employer" and "employment"? This is why I am puzzled about the differences here. Perhaps it is that the word "employer" is not defined in this particular section. I am puzzled at two sections which are 95 per cent, perhaps more, the same having this slight difference. A change was made and one becomes curious as to the reason for the change.
The definitions here are only what are appropriate to the Act. If we look at subsection (2) of section 5 we will see it is a relevant matter to this whole question of lay-off and dismissal.
I think the Minister has underlined what I have said. When I look at subsection (2) of section 5 I find the words "employee", "employment" and "employer". If these are the only cognate expressions to the word "employee", why were these not cited, as was done in the 1967 Act? Are there some words other than in this section where we have some cognate expressions? Within a definition everything which is used in it should be clear. The words "cognate expressions" are not clear in this particular case. We are dealing here with legislation in regard to people's rights to entitlement. This may appear a niggling minor point but we must be absolutely clear about what we mean in this particular regard.
I do not think it is of any relevance to the Bill whether a definition requires to be given here or not.
I am content having raised the point. I take it it will be looked at and any necessary implications will be examined. If anything should arise from this matter, perhaps the Minister would communicate with me and put my mind at rest on this point.
Certainly.
Question put and agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."
Can the Minister tell us anything concerning his intentions about the coming into operation of this Bill? He provides in this section that it will come into operation on a day to be appointed. I should like to know what are his intentions and hopes on the matter.
It will be as soon as possible. There are some regulations and so on, particularly under section 14, to be considered. The reference of disputes to tribunals under section 11, subsection (1), must be considered before the Act can be brought into operation. It will be necessary to make these regulations.
One would anticipate something of the order of six months?
I hope sooner.
Question put and agreed to.
SECTION 3.
Question proposed: "That section 3 stand part of the Bill."
Section 3 (1) (b) deals with what we might call the forbidden degrees of kindred in respect of this Bill. Here we have a number of points which I should like to raise.
We have gone out from relatively simple relationships to several degrees of kindred. We seem inclined to bring the complete deirbh-fhine of our ancestors into this legislation. We do not merely deal with the question of parents and children, we go beyond that to grandparents and grandchildren. Having taken in this very wide scope, I then find that there is no mention of the relationship of son-in-law, daughter-in-law, father-in-law or mother-in-law. When we were making out this very large list of people under this particular paragraph, which refers to employment of a particular type in which families and relations are largely concerned, these particular relationships were excluded and I should like to know the reason. If we can think in terms of an employment of a son or daughter on a farm or in a dwelling house, we could equally think of the employment of a son-in-law or daughter-in-law.
These are the same relationships which are provided for in other legislation under the social welfare code. There is no difference here. If you bring in in-laws, very often the boss's daughter marries an employee and it would be very wrong to deprive the employee of the benefits he is already entitled to just because he married the boss's daughter. I do not think one could argue in favour of including in-laws. There are many cases where one would think that the immediate relatives should be included.
This is indeed the point.
It is relevant, of course, to read the section which states "... and whose place of employment is a private dwellinghouse or a farm in or on which both the employee and the employer reside."
I am aware of that but we are concerned in subsection (1) with particular conditions of employment. The Minister indicated that this is the same as in other legislation. It is the same as subsection (3) (b) of section 4 of the 1967 Redundancy Act. On the other hand it is far wider in scope than the corresponding section of the British 1963 Act on which this legislation appears to be based.
I should like to ask the Minister, in regard to this particular problem of this type of employment, if the reference here is only to domestic work in a private dwellinghouse or on a farm. Does it apply to work on a farm and, in that case, are there any limits to the type of work?
I could not imagine a factory being run in a private dwellinghouse.
I agree with the Minister. I cannot imagine a factory within a dwellinghouse but it would not be impossible to have manufacturing in a dwellinghouse; for instance, ore manufacturing could be carried on there.
The intention here very obviously is to exclude families or close relatives working together in a private house or on a farm.
Yes, but on the other hand the original intention appears to have been to restrict this to domestic service and the ordinary work of a farm. Am I right in saying that there is no restriction as it stands at present?
Yes.
It is not restricted to domestic service or to ordinary farm work. If, in fact, there happened to be carried on in the dwellinghouse a skilled operation, or a cottage industry, the effect of this section would be to exclude members of a family taking part in such activities from the operation of the Bill.
Yes.
I think an obvious example of what Senator Dooge is talking about would be a country public house with a farm attached. The son of the house in that case would help in the bar as well as helping on the farm: would he be included or excluded by this subsection?
He would be excluded.
In regard to both?
All such cases are, of course, subject to test on their merits but, broadly speaking, he would be excluded. He could possibly seek to establish that he has some specific skill that could not be found elsewhere and, even though relative, he has to be employed there. He could have a contract of service with his father and, on his establishing that he could not find somebody else for the job, he might be able to establish that he was insurable. The same thing arises with regard to insurance.
So far we have been concerned here with particular persons and conditions of employment. I would now like to take up the scope of the exclusion. We are concerned in this Bill with the giving of notice of the termination of employment and also with the provision of their terms of employment to employees. I should like to ask the Minister to comment on whether it is desirable to make a blanket exclusion in this regard. I know there is an escape clause which the Minister can vary afterwards, but we should be clear in the legislation on the right thing to be done at the moment.
Uncertainty in regard to their terms of employment on the part of children in rural Ireland working for their parents has been not only a cause of anxiety to many of those children but has also been the basis of much dramatic output on the stage of our national theatre. Irish dramatists have dealt repeatedly with the theme of the son and daughter working at home within the family. One can accept that such persons would not be entitled to a long term of notice if it is decided they should no longer be employed. We are talking here about employment, not just about working. We are talking about a contract—it may not be a written contract—and I wonder if we would not be doing something for the social health of such families and groups if, in fact, they were not excluded from the necessity to make the terms of employment known on request.
The Senator asked me to comment on this matter. I would not be in favour at all of bringing in the conditions of employment that pertain as between an employer and his non-relative employees into family affairs. This is something for which I would not like to legislate. I do not think the son should have the right to demand from his father the conditions of his employment. I do not believe we should go that far and I do not think it would help traditional good family relations. We should, however, try to give members of a family certain rights which they could invoke in certain eventualities. The same principle applies to the case of insurability. Senators know that relatives are not insurable when they are employed by their fathers or certain other relatives.
The Minister says this could be invoked in certain cases. My point is that it would be invoked only in those cases in which there was something wrong and in which the good tradition, of which the Minister has spoken, was notably absent. If the Minister takes this attitude, should he not approach it by saying that such a situation of family relationship should be excluded from the definition of employment? If we are going to say that this is employment—this is what we say in the section—then it should follow the rules of employment which we are now laying down. If we wish to exclude them then it might be better to exclude them from the definition of "employment" rather than make a special case of them, as is done in subsection (1) (b).
I may be quite wrong, but is the position, I wonder, of adopted children covered by this subsection?
That is covered in the Adoption Act. The Adoption Act attributes to them all the rights to which the natural son or daughter would be entitled.
Does that apply to the denial of a right?
I am not a lawyer, but I have some very good advice available all around me.
I think Senator Sheldon has made a good point.
This is a point on which I would not disagree with the Minister. Still on section 3 and still on subsection (1), but moving to paragraph (c), I would like the Minister to comment on the reasons why he included local authority employees but excluded civil servants. The Minister commented briefly on this in his reply on the Second Stage, but he had not got much time available to him on that occasion. Nowadays the public service is essentially one employment. The direction in our legislation has been towards the promotion of mobility between all parts of the public sector yet here we are, in legislation, making a very distinct difference. This point was adverted to by Senator Owens on the last occasion on which we debated this Bill and I would be glad if the Minister could give us the reasons for reaching not just the decision to include one or exclude the other but, at the same time, to exclude the unestablished civil servants and to include local authority employees.
I may be chancing my arm on this, but the obvious reason possibly is that civil servants are already covered from the point of view of dismissal by their terms of employment and they have always enjoyed benefits that other employees did not have. Local authorities employ people at all levels, such as labourers, storekeepers and manual workers. It was for that reason it was decided not to exclude employees of local authorities.
I would like to intervene for a moment, if I may. It is now ten minutes past the usual time for adjourning for tea. Should we adjourn now, or should we continue in the hope of finishing reasonably early?
I suggest the majority of Senators would like to get away tonight and it would convenience them if we continue until we finish.
Is that agreed?
I have no objection to continuing for the present but, if we find that the debate is going on unusually long, we might reconsider the position later.
I would like to press the Minister a little further on this. He said that the exclusion of the Civil Service is justified on the grounds that civil servants already have the rights given under the Bill. It is about 26 years since I was last a member of the Civil Service so I may be out of date on this particular point but does this mean that, in fact, all unestablished civil servants have the right of notice given under section 4 of this Bill? Is an unestablished civil servant, who has been employed for more than five years, entitled as of right to four weeks' notice?
I think the position is fairly clearly outlined in the Bill. Under clause (c) of subsection (1) it says: "(other than in an unestablished position)." It is generally recognised that established civil servants already enjoy better conditions.
The conditions of employment of civil servants give them at least what is given here in section 4 of the Bill. Is the Minister quite satisfied on this point?
Yes.
Under section 3 (2) the Minister has got very wide powers in regard to either the exclusion or inclusion of classes. With regard to many of these powers, orders are subject to positive confirmation by this House. On the other hand, we are enacting in this measure enabling legislation of quite wide scope. I would like to ask the Minister if he has any immediate intentions in regard to inclusion or exclusion, or could he give us examples of the type of class he might, within the next few years, consider either excluding, under one of the subsections, or including under a later one?
I could not give any indication now. Any order made under this subsection must be laid before both Houses of the Oireachtas and approved by both Houses.
Is this put in as a safety clause, in case the Minister wishes to change, rather than with a view to any particular date?
Yes.
On subsection (4) of section 3, there is another omnibus provision, not quite as wide as the one referred to by Senator Alexis FitzGerald on the last Bill. It reads:
... may include such transitional and supplemental or other provisions...
This is an interesting phrase. We might well be inclined to say "transitional and supplemental provisions necessary or expedient," in order to bring the Bill into effect. However, here we have "transitional and suplemental or other". Though the laws governing construction might say that "other" is not completely open here, I wonder why it is necessary at all? In addition, it says:
... appear to the Minister to be necessary or expedient.
We consider a thing to be necessary or expedient for some particular purpose, the purpose is not specified here. If it said it was necessary for bringing the Bill smoothly into operation or for the better operation of the Bill that would be one thing: but "as appear necessary or expedient to the Minister for any purpose" verges towards an absolute discretion in regard to necessity or expediency. Has the Minister any comment on that?
It is intended to apply to minor modifications, mainly transitional, of course.
As the Minister appreciates, I have no objection to "minor"; neither have I any objection to "transitional", but the section says far more.
It is a necessary power in this type of legislation where simple modifications could impede the better working of the Bill when it becomes law.
Again, we find that, although this is not as wide as the section in the last Bill we were considering earlier today, there is no time limit on this particular section. It appears to me that, if we put this in without a time limit, an order can be made by the Minister which can include other provisions which appear to the Minister to be necessary or expedient.
Yes.
This seems to me a very wide power. The Minister states that it is meant to deal with minor and transitional matters, but the section does not say so. It says this and then goes on to widen it so much that it would not have mattered because the limitations already made are completely obliterated by the wider provisions of the remaining parts of the subsection.
Again, here you have the safeguard that it would have to be approved by both Houses.
The only thing on which I would agree with the Minister is the safeguard that it would have to be approved by both Houses of the Oireachtas. Senator Dooge remains suspicious of the word "other". He says this might be tied by certain rules. My experience is that interpretation can have pitfalls because there was one instance in which the Attorney General ruled that a motor-car was an animal under "or other"; it could be deemed to be included. There was no reference to inanimate objects but the Attorney General took it that it included inanimate objects. I would be suspicious of "other", I must confess.
I should like to support the argument made by Senator Dooge. This is a very wide discretion for a Minister under an omnibus clause. I do not like the way in which it could be construed. I do not think it is an adequate safeguard to provide that orders will be laid before both Houses. I anticipate that during the next few years a very large number of orders will have to be laid before both Houses simply because we are creating this type of derogated legislation in practically every statute we pass. Therefore, the review may be a much less careful one than it might be and Parliament ought not allow this sort of omnibus discretion to be given to a Minister.
We have to put in the safeguard in the legislation itself that Orders cannot be made with such general discretions. Like Senator Dooge, and on top of this argument which I make both as a lawyer, looking at the very wide wording, and as a member of the Committee on Statutory Instruments, I agree with Senator Sheldon that these words are open to very wide interpretations once they are on the Statute Book.
Subsection (4) does not lose anything by being without the words "or other". What the Minister has said he is looking for is flexibility in relation to transitional and supplemental provisions. That he has got. He has also got under section 5 the power to amend or revoke an Order. He has got a great deal of flexibility in this section and the particular wording goes further than we ought to allow because of the possibility of its giving an unfettered discretion not only for what is necessary but for what is in the opinion of the Minister, expedient. We do not accept the fact that the order must be scrutinised by the House as a sufficient safeguard because the experience has been that very often such orders are not looked at with the special care and attention they should get.
On the question of subsequent review by the House, I welcome the fact that many of the provisions under the important sections of this Bill are subject to positive resolution here. This is an improvement on what is happening in regard to certain other legislation.
Nevertheless, there are severe limitations to this apart from the question of the House's own ability to pay attention to all the matters that come before it in this regard. As I understand it, it is not possible to amend such an order so that, if the Minister comes forward with a provision for 20 things he wants to do, 19 of which are properly supplemental and incidental, the only alternative the House has is to vote against all 20 or accept all 20, because it agrees with 19, which are purely expedient and necessary for the purposes of the legislation agreed to by the House, but does not like the 20th, does not think it necessary and does not think it properly supplemental and incidental. The Minister should think carefully about this. The easy thing to do is to enact it the way it is here, but that is not a good thing to do. The standard of our legislation suffers very much by this. If the Minister used the words "transitional, supplemental and incidental" instead of the words "transitional and supplemental or other", I would be far happier about this section. Would the Minister think about this between now and Report Stage? I hope to put down an amendment on Report Stage.
I am prepared to have to look at this. The House should consider this type of subsection, and the power it proposes giving to the Minister, in the wider context of the whole Bill. The Bill is calculated to give certain privileges to workers that have not heretofore been established legally. Anything one may do in this direction is an improvement. This is new legislation and undoubtedly it will uncover some flaws or anomalies. I will be happy to come along to bring in new legislation for the sake of small modifications that may be required. It is only wise and sensible to have a simple provision of this kind.
The Minister is asking for a provision as against what I have suggested. He is asking for a provision which allows him to do things that are neither transitional nor supplemental nor incidental. Those three categories should be sufficient for what the Minister says he wants to do. Perhaps the Minister would think over it and we could debate it on a subsequent Stage.
It looks as if the Senators are not going to give me the Report Stage today.
The Minister has already agreed to take the Report Stage of the other Bill on the 17th.
They are two separate Bills.
Subsection (5) provides:
The Minister may by order amend or revoke an order made under this section, including this subsection.
This is a matter of drafting. The words "including this subsection" are included so that it may be possible to amend an order which has already been made under this section. Is it necessary to include the words "including this subsection"?
We, on the Opposition side, bring forward amendments which we think are highly necessary and they are continually dismissed by Ministers on the ground that, while they might improve the Bill, they are not strictly necessary. I ask the Minister are the words "including this subsection" strictly necessary in this case?
It enables the Minister to amend or revoke this subsection.
No, it does not.
It certainly does not.
An order made under this may be superficial.
Are the Government and the Parliamentary Draftsman allowed to put in superficial phrases which are used as an argument against Opposition amendments? When we feel that these amendments are matters of substance they are dismissed on the grounds that we should not put anything into a Bill which is not necessary.
I can see the need now for having that there. If it were not there there could be certain orders that one could not revoke.
This is my difficulty because, if we look at the Redundancy Payments Act, 1967, the phrase is not there. Either the phrase is unnecessary, in which case it should be neither in the 1967 Act nor in the 1973 Act, or it is necessary, in which case it should be in both the 1967 and the 1973 Acts. I ask the Minister either to strike this out of the Bill or, if it is necessary, then we have the 1967 Act as an example of legislation in which this was not done.
I do not think we should strike this out. "Including this subsection" is necessary there. If a Minister revokes an order under that subsection he revokes an order he has already made. If he wants to amend or revoke that order, again these are the words which enable him to do it.
The Minister is now arguing that the words "including this subsection" are necessary. If we look at section 4 (6) of the Redundancy Payments Act, 1967, to which this Bill is tied, that subsection reads:
The Minister may by order amend or revoke an order made under this section.
The words "including this subsection" are not included. Is it then necessary to amend the 1967 Act?
This is a separate Act and, however much it may be designed in accordance with the other Act, it is a separate piece of legislation. With due respect to Senators with a better knowledge of the law than I have, those three words are essential.
My argument is an argument for consistency rather than an argument of the law.
They may be superficial but they do no harm.
I hope the Minister remembers that when dealing with Opposition amendments.
Question put and agreed to.
SECTION 4.
I move amendment No. 1:
In subsection (4) to add to the subsection the words "provided that nothing in the order shall have the effect of reducing the amount of notice to which any employee is entitled under subsection (2)".
As it stands the section indicates merely that the Minister may vary the amount of notice. Accordingly, the Minister could by order reduce the minimum period of notice under subsection (4). I propose the subsection be amended so that it reads:
The Minister may by order vary the minimum period of notice specified under subsection (2) of this section provided that nothing in the order shall have the effect of reducing the amount of notice to which any employee is entitled under subsection (2).
Which subsection?
The amendment is to subsection (4) which refers back to subsection (2).
Subsection (4) of which section?
Section 4, amendment No. 1.
The Senator is dealing with the first amendment?
Yes. The amendment seeks to ensure that any order made by the Minister under subsection (4) can only have the effect of increasing the notice to which an employee is entitled. By the full process of legislation we are passing this Bill into law. There are two main principles in the Bill one of which is enshrined in Section 4. An employee is entitled to notice and as of this date we consider the amount of notice to which an employee is in general entitled if he falls within the included classes is what is given under subsection (2) of section 4. The Minister provides in subsection (4) for a variation of this. It would be inappropriate that he should vary this notice downwards, or reduce the entitlement of any employee by order even though that order has to come before the Houses of the Oireachtas for approval by positive resolution. We should provide that that subsection cannot be used to reduce the entitlement of an employee by making the amendment as suggested.
The words proposed by the Senator in the amendment are unnecessary unless we overlook the whole spirit of the Bill. The word "various" means in this case invariably an upward adjustment. The whole spirit of the Bill is to ensure that the minimum is observed and that any adjustment should be upwards. It is written into the Bill that the terms of a contract which would make for lesser period of notice would be invalid. The terms of the Bill must prevail in spite of any contract which may be entered into. This is something the Senator argued about in relation to my three words in the previous section. Nobody would cause this section to be changed in the belief that there would be a reduction in the minimum as laid down in the Bill. This is taking a sledge hammer to kill a fly.
No one is taking a sledge hammer to kill a fly: it is just the addition of half-a-dozen words proposed in the amendment to make the intention clear, which is in accordance with the spirit of those who have proposed this Bill to us. I strongly support this amendment. It is wrong for any Minister to have power to reduce the minimum period provided for in this section. The Minister states that he does not wish it, so let him not take it.
There is no reference to the employer who is also entitled to notice. The Senator is implying that workers need protection against the Minister and the Houses of the Oireachtas.
No, I am merely stating we should have legislation which is in accordance with what is desired to be the law which the Minister tells us is his wish. It should take appropriate form which would seem to be that which is suggested in the amendment before the House.
There is no difference of opinion here about the spirit of this legislation. The whole purpose of the Committee Stage of a Bill is to convert spirit as agreed on the Second Stage into letter as determined on Committee Stage.
I am concerned with the letter of the law of subsection (4) of section 4. I intended to put down a very simple amendment which was to change the word "vary" to "increase". If the Minister would accept that I would be happy. My only worry is that the Minister might wish to amend subsection (2) not by increasing the amount of notice but by reducing the service required in order to attain a given amount of notice.
That is why what I have put down in this amendment may appear unduly long. The intention behind the wording of the amendment is to allow the Minister to increase entitlement either by increasing the degree of notice to which a person is entitled or by reducing the period for which he would have to be employed in order to be entitled to a given degree of notice. If the Minister wishes to bring into the Bill the intention of only using this in order to improve matters I suggest we should either, on this Stage by agreement or on Report Stage, strike out the word "vary" and insert the word "increase".
I should like to support this amendment. We are not quibbling about words; it is a matter of substance. I appreciate the Minister's view of the word "vary" in this context may be an inevitable varying upwards but the word is not confined to that interpretation and would not be viewed in that way.
During the Second Reading debate in the Seanad on 19th December, 1972, as reported in the Official Report at column 1377, the Minister explained some of the bargaining which took place to fix the minimum terms. This did not seem to be as untouchable as it might. I quote:
Any criticisms Senators may have of the Bill and any amendments they may contemplate putting forward may be based on the fact that they may think the week's notice is too short on the lower end of the scale. Employers may think the eight weeks is too long at the top of the scale. We tried to get an optimum that would be reasonable.
For that reason there is some substance in the fact that the word "vary" might well mean that some future Minister might give in to pressure from employers that at the top of the scale the notice was too long and "vary" might well mean a change in the terms.
I support this amendment as I would not like to see the word "vary" on the statute book in this context even though I accept the Minister's assurance that as he sees it "vary" will inevitably mean a varying upwards. This is a minimal and intelligent amendment on Committee Stage to achieve the purpose about which we all agree— that any amendment ought to be an amendment upwards but that the word "vary" has that possibility of not being an upward change.
I have an open mind on the matter but I think it is ridiculous in view of the provisions already in the Bill for bringing orders before the Houses of the Oireachtas. An employer is also entitled to get notice. This refers to employees only. If Senators insist I am prepared to change the wording but it would show a lack of faith in the Houses of the Oireachtas.
We make many acts of faith in regard to what Ministers do. If there is clear agreement that this subsection would not be invoked except to increase the entitlement of the worker then the subsection should say so. I would be grateful if the Minister would yield to our scruples in this regard. If I withdraw the amendment the Minister can perhaps consider the best way to amend it between now and the Report Stage.
I will do that.
I would just like to say that some of the subsections of section 4, notably subsection (3), refer to the First Schedule. Perhaps the matter could best be debated on the Schedule.
Amendment, by leave, withdrawn.
Section 4 agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."
Section 5 relates largely to the Second Schedule of the Bill. We reserve the right to discuss this Schedule.
Question put and agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
Just a question here: section 6 is concerned with the right of the employer to notice. I should like to ask the Minister in this particular regard what is the sanction of the employer. If the employee does not give the requisite notice of one week, I take it that in every case wages would be owing to the employee from the employer. I take it that what is likely to happen in such a case is that the employer would withhold wages in lieu of the one week's notice which had not been given. I should like to ask if this section entitles him to do so and if this section has the effect of making it impossible for an employee to recover as a debt wages due; if we are creating a right on the part of the employer to be given at least the sanction of withholding wages up to an amount equivalent to the notice which has not been given.
I should like clarification on this matter from the point of view of an employer. We are concerned very much here with the notice which must be given to employees. There is another side to the story for which there is no legislation. Many employers may train people for long periods. They spend time, money and effort on this. Then one day they find their employees have gone. Wages are not held over for a week. If employees are paid by the week there is a custom in some firms that a person's wages are not paid and then he is paid the second week's wages. Employees are now paid by the week to a greater extent. The employer has no redress whatever in law or elsewhere to come back at an employee for any loss he may suffer as a result of the employee walking out without notice. While we must ensure that all workers are safeguarded, employers are not all ogres. They need a certain amount of protection also. If they are not covered under this Bill I should like to see an Employers' Rights Bill coming in. It is long overdue.
I did ask whether the section does create an entitlement on the part of the employer to withhold wages as a sanction for non-receipt of notice from the employee.
The employee may have been paid on Friday and may have taken up other employment on Saturday. In that case there is no money owing. The question of breach of contract arises. It is up to the employer to take whatever action he can under the contract.
What would the Minister define as a contract? Usually one does not have a contract signed and sealed in many of those cases. I do not think we should beat about the bush in this particular case. This does happen. An employer can insist on the employee giving him six weeks' pay?
One week's.
Yes, one week's. The question has not been answered.
Under this Bill the employee has to get notice of his conditions of employment. He is aware that he is obliged to give a week's notice to his employer on leaving. In regard to Senator Farrell's point regarding an employee who has been undergoing training to improve his skill and then walks off, this is a very common thing. The employer would be stupid not to have a contract providing that when the trainee has reached the full pitch of his or her skill he or she will serve for a certain term of employment. It is a loosely knit arrangement if there is no contract to ensure that there is a reciprocity on both sides.
What redress has an employer in this case? An employee can claim, if brought to court for breach of contract, that he has no money or no property. The employer is just wasting his or her time pursuing the matter.
This Bill is intended to provide for minimum notices not to arrange contracts for people who will not make them themselves or who cannot enforce them. We cannot expect to tie up the employees in every conceivable situation. We are simply providing the legislation that they at least get a week's notice and in certain cases as much as eight weeks' notice. We do not propose writing into the Bill all sorts of terms of employment that may be enforceable. I cannot say if there is anything in the Bill which would cover the situation where the employee has no money and the employer cannot get compensation.
Could the Minister say if in the case of an employer whose employee walks out on him at a time when there is one week's wages due to that employee, such employer rings the Minister's Department and asks the question: "Am I entitled to withhold that one week's payment in view of section 6 of this Bill?" what answer will he get?
He will get the usual Civil Service answer that it depends on the merits of the case.
Question put and agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."
We might as well pass to section 7 because the point overflows from section 6 to this section. The Minister has not raised any objection to this question of the withholding of payment. Would the Minister object if section 7 were amended to allow the employer to withhold? Section 7 subsection (1) states:
Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice.
This allows either of them to waive the right to notice. It allows the employee to accept payment. A simple amendment here would allow the employer to withhold payment. Would the Minister have any objection if this section read:
Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting or withholding payment in lieu of notice.
This would give a statutory right to the employer to withhold payment. It would, miraculously, allow the Minister's Department to give a definite answer to a question.
No, I think the question with regard to withholding the payment does not make sense, whatever about the legal phraseology. If somebody walks off and there is pay owing to him, he will not be paid for the time he did not work. Payments are made weekly in 99 per cent of the cases. In no case would there be a week's pay owing, unless the employee walked off before his pay-packet was handed to him on Friday. Most likely the employee goes to other employment after he is paid on the Friday. There are no wages owing to him.
Not everybody is paid weekly.
Most are.
Many are paid fortnightly.
Section 7, subsection (1), the right to waive notices, is a very necessary and convenient subsection. An employer and employee frequently find themselves in the position where the employee is taking up new employment next day. Both of them agree on this matter. We must have provision for this. I do not think it is necessary to include in that section the right to a week's notice.
Apparently it is necessary, if the position is not clear under section 6. We may have an employer who is anxious to do the right thing. He will be anxious to save himself money in respect of a person who has left him without the proper notice. The conscientious employer might only wish to do this if it was his entitlement. We are leaving the employer in the position that he does not know what he is entitled to do. The Minister is right in saying that the practice would be that the money would be withheld in most cases where it was possible to do so because of the manner of payment.
Is it right then to say that he is entitled to withhold payment in respect of the week where there may, in most cases, be nothing due? This also seems silly.
I said withhold, not recover.
But there may be nothing to withhold.
Agreed. He has an entitlement to withhold but this is not possible.
In any case he would withhold if possible.
I think we are discussing it on the basis that no employers have a conscience in regard to such matters and some of them have.
There is no penalty specifically written in for the employee not giving notice. One can easily see the difficulty of enforcing such a penalty.
Agreed.
We should leave that matter as it is.
For the moment.
Question put and agreed to.
SECTION 8.
Question proposed: "That section 8 stand part of the Bill".
Section 8 is something which we should all like to see here. One of the difficulties which would occur to anyone reading the section is the question of what is misconduct. Chapters of the history of industrial relations are devoted to the determination of what is misconduct on either side. If we look back to section 1 we have no definition of misconduct. Is the question of misconduct now a matter which would be determined by reference to the Redundancy Payment Appeals Tribunal under section 10?
Yes, in the first instance, and possibly to the High Court, if necessary, afterwards.
Is the Minister satisfied that this is the most suitable body for determining this particular matter?
It certainly could not be argued that a definition of misconduct should be written into the Bill because it would be impossible to define. One cannot argue that an employer must be left with no redress if he finds an employee with his hand in the till, or doing something which is gravely prejudicial to his employment or his employer. This is contained in every Act in relation to employment. Misconduct does not carry with it any special privileges. If an employer finds an employee is guilty of serious misconduct he has this redress or if an employee finds that an employer is guilty of some offence he also has the right to walk off the job. We must have this provision in the Bill. It can always be argued that it will be abused, that some employer will pretend that an employee is guilty of misconduct, but those who are familiar with the appeals tribunal will agree that they give a fair hearing in all cases. If the people concerned are not satisfied they have the right of appeal to the High Court.
I am not suggesting that we should delete the section. I only wanted to prove the particular scope of misconduct. I yield to Senator Alexis FitzGerald.
Would it help the Bill if we added the words "entitling the employer or the employee to terminate the contract"?
I do not think that would improve the matter.
This is a matter of ascertainable law.
This is the type of point which I was going to develop. I should like to refer the Minister back to the equivalent section in the 1967 Redundancy Payments Act, that is section 14. The Minister has indicated that the Redundancy Payments Tribunal is an appropriate body to determine whether or not there is misconduct. They would already determine this matter under the Redundancy Payments Act. But this Act, in section 14, goes into much more detail in regard to the definition of misconduct than does section 8 of the Bill before us. It says:
...if his employer, being entitled to terminate that employee's contract of employment without notice by reason of the employee's conduct, terminates the contract because of the employee's conduct....
It then gives three conditions. It goes on in subsection (2) to refer to the effects of this particular condition when strikes occur.
There is no dispute about a person being found with his hand in the till being guilty of misconduct but some employers consider going on strike as misconduct. It should be necessary to give protection in regard to this.
If it was thought necessary in the 1967 Act to spell out the question of misconduct in the detail which takes up a half-page of the Act, then we need something more than a single word or phrase in section 8. One is struck by the difference between the very short reference to misconduct in section 8 of this Bill and the rather long reference to misconduct in section 14 of the Redundancy Payments Bill.
The Redundancy Payments Act does not attempt to define misconduct either.
No, but it links it up clearly with the question of entitlement to terminate the contract of employment, in the case of such misconduct.
It excludes certain situations specifically from the particular provisions of the section.
I could imagine somebody arguing this matter and drawing attention to the fact that the Act of 1967 could be looked to. The fact that the language in the 1967 Act is not in this Bill would mean that the kind of misconduct to be examined might be of a different nature from that which would entitle the determination of the contract. This section is, of course, in the English Act and this is how it has come into ours.
The section of the 1967 Act relates to strikes only.
Yes, but it uses the language "being entitled to termination of the employee's contract of employment" in subsection (1).
It says:
Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.
All this infers is that if a person is aggrieved and feels that there is not justifiable misconduct, he has the right to appeal in the first instance to the tribunal and subsequently to the High Court.
I should like to follow up Senator FitzGerald's point. If, in fact, we use the simple definition in this Act and the more complex definition in the 1967 Act, would not this tribunal, which spends most of its time dealing with questions under the 1967 Act, be very concerned with the fact that the Oireachtas has used the word "misconduct" unadorned in this Bill before us? It will see before it a reference to misconduct which is very different from the reference to misconduct in section 14 of the 1967 Act, take notice of this difference, interpret accordingly, and say that something which might not be misconduct under the 1967 Act, because of the limitations put into it, could well be taken as misconduct under this Bill when enacted.
An employee who had at least two years employment would be appealing under the Redundancy Act rather than under this Bill because that is the Act under which he would suffer the greatest penalty if there was wrongful dismissal.
He might win his appeal under the Redundancy Act and lose it under this one.
He would be much more concerned under the Redundancy Act because his lump sum, weekly payments, and the question of his continuity of employment might be at stake. In this case the period of notice——
An entitlement to payment in lieu?
The same tribunal would be dealing with it as deals with the redundancy definition of misconduct.
I do not think we should take the attitude that we can console a person by saying to him that he has one of his rights when he is looking for two.
He would be most likely to plead under the other Act.
Would he not plead under both? If he was summarily dismissed for misconduct——
Contrary to what the Senator is saying, the fact that the absence of a more clearly set out definition of misconduct here would give rise to the feeling that a lower standard is required, I take the opposite view. The other Act will be likely to be cited as the one which lays down "misconduct" if—and I do not believe for one moment that it does—it in any way defines "misconduct" any clearer than it is defined in this Bill. The only thing it does is to point out about strikes.
It refers to strikes in subsections (2) and (3) but in subsection (1) it refers to the termination of a contract because of the employee's misconduct under the condition that the employer is entitled to terminate without notice by reason of misconduct. This is either defined in a contract or is in some way a right which an employer has under general conditions of employment. I think there is a real difference in subsection (1). If we look only at subsections (2) and (3) we can say this is a question of strikes—this in itself is significant—but I think we must look at all three subsections of section 14 of the 1967 Act.
Also may I add, this Bill will apply to a category of employment to which the Redundancy Payments Act will not apply at all.
That is correct. A person having two years continuous employment would not come under the Redundancy Act and he would still be entitled to his week's notice under this Act. I still think that the section is adequate. One could argue for a week over this but we must have the section. Senators will agree that one cannot define misconduct.
That is not agreed. We could say that we cannot define completely, categorically and comprehensively for all purposes what misconduct is, but the 1967 Act has given, perhaps not a definition, but a description which is a limiting description in contrast to the simple description in section 8 of this Bill. These must be taken into account by the tribunal in dealing with these matters.
The right of appeal to the tribunal is ample safeguard on the misconduct side.
But the appeal to the tribunal is an appeal to it to deal with this matter on the basis of law. It deals with the words which we enact here. It deals with appeals under the 1967 Act in accordance with the words we enacted in the 1967 Act. There is, throughout this Bill, a concordance with the provisions of the 1967 Act. They are written to go together and are designed to interlock with one another. The very fact that an appeal goes to the same tribunal is an indication of this. We are allowing it to go with two different descriptions, definitions, or call them what you may. It is a serious point and perhaps we should leave it here. The Minister said that we could discuss it for a very long time and perhaps we should all think about it between now and the next Stage.
Question put and agreed to.
SECTION 9.
I move amendment No. 2:
Before subsection (4) to insert the following subsection:—
"( ) If after the date to which a statement furnished under subsection (3) of this section relates there is a change in the terms specified in subsection (1) of this section, the employer shall within one month after the change furnish to his employee a written statement specifying the particulars of such change."
Amendments Nos. 2 and 3 may be debated together.
Certainly. Section 9 is concerned with written statements of terms of employment. Subsection (1) provides that an employee may look at any time for a written statement in regard to certain important fundamental conditions of employment. Since he is entitled to do so at any time if there is a change in the conditions of his employment, he can ask for his new conditions and can receive, or can have his attention directed to, an acceptable statement of those conditions. There is also, under subsection (3) of section 9, a provision that an employer shall, within one month after the taking up of employment, furnish to his employee a written statement giving the fundamental conditions of employment.
What the amendment seeks to do is to provide that, where there is a change in the fundamental conditions of employment only, in the matters which every employer must provide in a statement to his employee, and not in the supplementary matters which the Minister may require in subsection (2), that change should be notifiable to the employee. If he is entitled to information on taking up employment I submit that he is equally entitled to information concerning a fundamental change in the terms of his employment and the matters specified are fundamental matters. It might be argued that this would be an unreasonable imposition on the employer and, accordingly, I put down amendment No. 3 which amends subsection (4), so that the employer in respect of this supplementary information can, in lieu of providing a statement for the employee, direct his attention towards a notice set out in an accessible place, which will indicate these particular changes. This is something reasonable which we should ask to be done. It is reasonable that these fundamental changes should be equally notifiable with the terms of employment on the date of first employment.
This amendment is unnecessary, with due respect to the good intentions of the Senator. In the first place, conditions and terms are two different things. An employer cannot change the terms of employment without doing so in consultation and in agreement with the employee. The conditions are tangible and physical and, if he changes them, the employee must notice it immediately and must say: "That was not in the conditions of my employment when I started work." It is absolutely unnecessary to have the requirement about a change written in. Apart from its being an imposition on an employer—we must not put too many burdens on an employer—and however easy it would be to direct his attention to a notice that would be conspicuously displayed, that is already provided for in the Bill with regard to terms and conditions. If terms of employment are changed, this cannot be done unilaterally. It must be done in agreement with the other party to the contract. If the conditions are changed, the physical conditions are perfectly obvious to the employee.
If the amendment read "terms or conditions" would it be acceptable to the Minister?
No.
Subsection (1) paragraphs (d) and (e) refer to "terms or conditions".
The reason that "terms" is used here is the occurrence of the word "term" in subsection (1).
Surely if the employer changed the terms unknown to the employee, this change would not be valid, because the employee is only held by the terms originally communicated to him in writing.
I am not concerned with the contractual position. I am concerned with the question of information here. Is the suggestion that everything which is specified here under subsection (1) could not be changed under any circumstances by an employer, without the consent of every employee?
I agree that what the Senator proposes here would not do the Bill any harm, but it would not add one iota to it. It would only be necessary if some change took place behind his back, of which he did not know, in which case it would not be valid. He has only the terms which were already communicated to him. In the next place, if the terms are to be valid, they must be done in conjunction with him or in a manner which will affect the conditions under which he is employed. He may be told: "You must come in at 8 o'clock instead of 10 o'clock."
He might equally be told: "You are now entitled to sick leave of an amount greater than that to which you were entitled before." I agree that most employers would trumpet this, but I think there may be instances in which——
He is entitled to be told if he asks.
Certainly.
It is not the condition which would catch the employer out here with regard to changes, if he has displayed the main conditions and terms of employment in writing in a conspicuous place in the place of employment. These would have to be changed.
As I understand the Minister's argument, and I appreciate the force of it, as far as terms of employment are concerned these are terms to which an employee is entitled as a matter of contractual right. Consequently, they cannot be changed unilaterally by the employer. However, the Minister seemed to indicate that the same position does not obtain as regards conditions of employment. If the Minister concedes that, he is right to concede it. Conditions of employment can obviously change for a variety of factors, some of which the employer himself, for one reason or another, may not be able to control.
For example, in paragraph (d) of subsection (1) there is provision for the employee to obtain particulars of confirmation in respect of any terms or conditions relating to the hours of work or overtime. For example, it could happen that if there was a disruption in the electricity services—as we had in this city not so very long ago—it would be necessary for, say, the management of a factory to rearrange times of work, in order to keep up production. There the hours of work would be related to the conditions of employment that might be changed by reason of a factor which is broadly outside the control of the management. If it were found that, having made the change in the first instance, because it was outside the control of management, it proved to be a very successful change, it might well be that the management would then decide that they would prefer to keep that change in hours. Surely what is in question is conditions of employment rather than a term of employment. If Senator Dooge's amendment also took into account the question of conditions, then I would see very strong force behind the idea of inserting this amendment into the Bill.
If changes would take place unknown to the employee, I would be seriously perturbed that the Bill was remiss in this. However, I have not the slightest doubt that it could not conceivably happen. In the first place, paragraphs (a), (b), (c), (d), (e) and (f) cover the main terms and conditions which must be communicated. A change in these would be a fundamental change in the original notice to the employee: the date and commencement of his employment; the rate or method of calculation of his remuneration; the length of the intervals between the times at which remuneration is paid, whether weekly, monthly or any other period; any terms or conditions relating to hours of work or overtime; any terms or conditions relating to holidays and holiday pay, incapacity for work due to sickness or injury and sick pay, and pensions and pension schemes; the period of notice which the employee is obliged to get and entitled to receive to determine his contract of employment or, if the contract of employment is for a fixed term, the date on which the contract expires.
I think that covers it fairly adequately, without making it necessary for changes to be notified, which could not conceivably be done unknown to him anyhow, and which he has a right to ask for.
In most cases these things would be known to the employee. If the Minister commissioned the officials in the manpower office in his own Department to conduct a survey in any Irish industry and they went around and asked the workers on the shop floor what their conditions were under (a), (b), (c), (d), (e) and (f) I do not think they would get an accurate answer under all particulars. One of the malaises of industry, not confined to this country, is the lack of the flow of information throughout the industrial working environment. It is likely that most of these things will be known. It may well be that there are cases in which one group of employees have sought some particular improvement in their conditions. They will be well aware that this is granted, but equally the other employees, to whom it would also be granted at the same time, are entitled to be informed of this. I wonder if we are not leaving ourselves in the position, if we leave the section this way, that an employer can fulfil his obligations under this section by posting a notice, and that there is no obligation on him to keep that posted notice up-to-date, unless there is a demand from the employees. We should not let it get to the stage where employees come along demanding their rights. We are already starting on the road towards industrial difficulty, and perhaps strife, when we get to that position.
Substantial changes should be notified. If these things are to be posted under subsection (4) of this particular section, then this should be a posting not of out-of-date information but of up-to-date information. It may well be that we could meet what we are trying to do here by amending subsection (4) to provide that a statement which is displayed in this way shall be kept up to date from time to time. I feel there is a need for something in this regard.
The important thing about this amendment is that what most likely will not be conveyed to the employee is the good news. The bad news would not be relevant because he is only held by the terms of employment which were communicated to him in the first instance. If he is not informed of the change it does not apply. He is only bound by the terms he got but, as the Senator already pointed out, if something good is done, if he is given an extra fortnight's holidays and he is not told about it, then he is missing out on something. This is most unlikely, and the amendment is unnecessary.
I agree it is unlikely in regard to a major benefit such as this, but there may be minor benefits which would not be known to all employees. If the Minister does not see any force in this, perhaps I will withdraw the amendment.
I appeal to the Senator to withdraw this. I am anxious to have this Bill on the proper lines. I know the Senator is trying to be helpful, but I think the amendment is unnecessary.
Amendment, by leave, withdrawn.
Amendment No. 3 not moved.
Question proposed: "That section 9 stand part of the Bill."
I should like to speak on subsection (4) of section 9, which relates to the question of the posting of a statement to which the employee may be referred. On the Second Stage I raised the question that many notices which must be posted according to statute in regard to safety and other matters are perhaps clearly legible, properly displayed, accessible to everyone on the first day on which they are posted, but they become grimed with the passage of time; there tends to be a re-arrangement of the equipment and furniture of the work place; and what was once a clearly legible, visible and accessible notice, becomes something in the corner which is illegible and inaccessible.
I wonder if, in fact, what is here is sufficient because we say that the employee may be referred to a document which he has a reasonable opportunity of reading and which is reasonably accessible. Is the Minister satisfied with this or does he feel that he should, perhaps in some regulations under this Bill lay down some conditions in regard to these particular notices? There are some conditions in regard to the display of safety notices that might be adapted here.
I want to ask an ignorant question, if I may, on the section. Am I correct in understanding the position to be that, under subsection (5), the employer is obliged within one month of the commencement of employment to furnish the particulars specified in the section but that, in addition to that obligation, he is under a further obligation, under subsection (1), to comply with the request for the particulars?
I do not know how much thought has been given to this but I can see this legislation not being enforced to a considerable extent in areas of employment. There will be employers who will not be readily able to formulate it, unless they get the assistance of some form, which the Minister may prescribe by order, which would indicate clearly how they were to comply with the requirements of this section from time to time. If it is to be made a living reality, and it is desirable to do so —but I see great difficulties about the whole thing in large areas of employment—assistance will have to be given to people and a form prescribed to be filled in by the employer who will know what he is doing. What is done in a situation where a person is employed on probation and what is the length of employment? Does he say that a person is employed for a period of three months subject to probation and then what happens if the employer formally confirms the employment and certain terms follow? People will need assistance in establishing exactly what their relationship with their employee is or ought to be.
This is important also with regard to section 10 which contains this rather important matter of criminal offence. I should like to make a glancing reference to section 10 in relation to section 9. If a person asked me what date I took Mr. A, B, into employment I would be astonished to discover it was twice as long ago as I thought it was. Some employers will have difficulty in actually giving a correct set of particulars. If that is to be a criminal offence, we will have to have favours put in to protect people in relation to that.
Unlike Senator Dooge, who has obviously studied this very well, I had not thought of subsection (4) as being a document which could be published, because if you are employing a lot of people in a certain kind of employment one of the great difficulties is that you do not want one half to know what the other half are getting.
I was not thinking of a notice which would be available for inspection by all. It would be impossible for a busy businessman to summarise a pension scheme for an employee. I was thinking in terms of subsection (4), being able to comply with the requirements in relation to a pension scheme by saying: "The pension scheme in subsection (1) (e) (iii) is available for inspection at a certain place". If that were so it should be stated in subsection (4) "specifying the particulars, or any of them, requested by an employee under this section". These remarks are intended to be helpful.
In reply to the Senator, with regard to notice not being given, I agree that notices put up in garages and factories are not legible after a year or so. Once the employee gets a notice referring to them that is a direction telling him where to go. I should like to point out to Senator FitzGerald that it is not necessary to draw the attention of employees in that way to the terms of employment. It can be given separately to each employee in writing without having any notice posted. The section states the employer may refer them to the notice. We must think of the person who has one man employed, such as a lorry driver, who would not have a big notice displayed.
The point was raised about employers not knowing their obligations or how these would be communicated to them. There are six fundamental paragraphs, (a) to (f) in section 9 which must be communicated. The contacts we have through the insurance contributions system could be availed of to see that this notice is in the hands of every employer. That is not a statutory requirement but we will undertake by every conceivable means to get the requirements of this legislation through to employers.
Would the Minister deal with another point made by Senator FitzGerald in relation to subsection (4) which provides that a statement furnished by an employer under subsection (3) may in lieu of specifying particulars requested by the employee refer the employee to a document which contains those particulars? If a case arises where an employee seeks the entire particulars set out in paragraphs (a) to (f) of section 9 and some of those particulars are contained in a document and the employer opts under subsection (4) to refer the employee to that document, is that sufficient compliance? The wording of subsection (4) is somewhat ambiguous. If the reference is to a document which contains some only of the particulars required there is still an obligation on the employer to furnish the statement under subsection (3) in respect of the remaining particulars.
I will see if it would be necessary to provide in subsection (4) that such notice displayed would contain all the particulars given in subsection (1) from (a) to (f).
I should like to follow up that point. It is clear from subsection (4) as it stands that this refers to a single document. In regard to pension schemes, for example, it is clear that this single document which is the subject of subsection (4) would state that the pension entitlements are set out in another document. This would meet the requirements of subsection (4). Would it then be necessary to ensure that this document referred to for the purpose of finding out the details should itself be accessible? This is part of the general problem of all of the particulars being accessible, and the question of the reference to a single document in relation to all the particulars. It might be necessary to look at the various subsections from that point of view.
This very Act will change, as time passes, the period of notice which the employee is entitled to get. The first statement will be wrong after a couple of years employment. You can refer him to this Bill provided the Bill is made accessible.
Question put and agreed to.
SECTION 10.
Question proposed: "That section 10 stand part of the Bill."
I should like to ask what is the position if an employer fails to provide the statement of particulars of employment to which an employee is entitled, is brought to court and fined and still does not give these particulars? Has he purged himself completely of the offence? A more reasonable case might be if on demand he fails to provide it and is fined for this offence and still does not provide it. If the employee demands the particulars a second time, is there a second offence subject to a second fine?
I should say yes. He would be no different from the man who does not tax his car, is brought to court and fined and the next week the same thing happens.
This section worries me from two points of view. The first is the point referred to by Senator Dooge. On first reading of the section it would seem that if an employer refuses to furnish the particulars there is a once and for all penalty of £25 on summary conviction. Possibly the way to deal with that would be to provide for continuing daily penalty in the event of the employer failing to furnish the information notwithstanding the decision of the court and the fine imposed.
The second point which worries me is that this appears to be the creation of a statutory offence. The mere failure to comply with the provisions of section 9 to furnish a statement is in itself an offence punishable by means of a fine on summary conviction. I want to put to the Minister the case where there is a bona fide mistake made, where the employer is not culpable, am I right in supposing that even though he is not culpable, even though he has failed to comply with the provisions of section 9 on account of a genuine mistake, he is still committing an offence under section 10 for which he is liable to be fined £25? I would prefer if this section had been worded to meet the case of an employer who knowingly fails or fails without just cause. It worries me a bit as it stands.
This, of course, would be a matter for the justice.
I wonder would it. The query I am putting to the Minister is that, if a statutory offence is created, am I correct in thinking that once a summons is brought and it is proved in court that a statement of particulars was not given that is sufficient? The court must then convict or is this a case where mens rea is involved and where it would be necessary for the prosecution to prove guilty intent on the part of the defendant?
I would agree with Senator O'Higgins that, on the reading of it, it seems to impose strict liability which could in many circumstances be unfair if it was a matter of an understandable mistake. It would be improved by inserting a word such as "knowingly". I am not clear whether the offence is committed in relation to each individual employee or if it is a single offence of an employer in relation to all the employees.
It could be one or more.
On the other point made about the penalties, that is covered by section 12.
Or indeed subsection (2) of this section. The Minister would prosecute after investigation. If he finds the employer has a valid reason he will not prosecute. Good relationship is at the basis of the whole spirit of the legislation. If the employee is satisfied, even though he did not get the notice until six weeks, he is happy enough and good relations exist between himself and his employer.
On the question of good relationship, to have it framed as an offence of strict liability might make for bad relations because somebody is unnecessarily caught.
Yes, but it is pretty tight knit now.
They must interpret the words rather than the spirit of the legislation.
The likelihood of certain eventualities is what I am thinking of. It would be difficult to conceive of it arising in the case of this Bill.
I urge the Minister to consider between now and the Report Stage whether he could not put in some protective subsection to cover the man who had a reasonable excuse and who should not be dependent upon the goodwill of any given Minister as to whether he will be brought into court. One could think of a situation where he deputed this job to a particular employee who failed to do it; or he thought he had made arrangements and found he had not; or the employee managed to avoid receiving what they desired to furnish him with. Such situations could arise. Perhaps the Minister could think about improving the section.
The likelihood of the employee taking action is difficult to foresee when he has the right to get the Minister to do it for him. What happens in practice is they write into the Department and say they did not get their notices. Then the Department send out a man to have a chat with them.
They could go to a Deputy or a Senator first.
Not to a Senator.
They decide to prosecute them or see that the matter is put right. This is how it works. The employee is amply covered here. Senator Robinson made a good point when she said good legislation makes for good relations. If I thought it was too loose-knit and could take relations between employer and employee for granted then I would be very wary indeed. We tried very hard to make sure that everything was laid out clearly so there would be no grounds for bad relations existing through legislation.
The Minister might take another look at the section generally. The concern here is in regard to two types of individuals. On the one hand, the good employer who has inadvertently committed an offence; on the other hand, the case of the stubborn employer who wishes to continue to refuse. This case should also be looked at. It may well be that——
That is covered in section 12.
The Minister could look at it from the point of view of both these types of employer. The section is rightly drawn for the average defaulter but not for the inadvertent defaulter or the stubborn, persistent defaulter.
It is for the worst type of case we are legislating; not for the good cases. I will have a look at it.
Question put and agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."
Under subsection (1) of this section disputes arising under section 9 are precluded from reference to the redundancy appeals tribunal set up under section 39 of the Act of 1967. I should like to ask the Minister whether disputes in regard to section 9 would be referable to a rights commissioner?
Everything is appropriate to a rights commissioner. There is nothing to stop the rights commissioner being called in in cases of that kind.
Does the Minister anticipate this would be the normal and appropriate way for disputes under section 9 to be dealt with.
I would hope not.
In subsection (3) why is it the Minister who may at the request of the tribunal refer a question of law? It may sound as though it is a discretion to the Minister, even if requested by the tribunal to refer a question of law, to say "no". I would prefer not to do that. It is only an enabling provision. There is no duty on the Minister. Why not give the tribunal itself the direct power to refer a question of law to the High Court for decision?
It states "may" and not "shall". That leaves some areas of discretion. The same thing happens under the Redundancy Act. The redundancy appeals tribunal refers cases to the Minister which he may have to bring to the High Court. They set out the substance. In every case if there is good reason they would go to the High Court. This "may" or "shall" is something I questioned with the draftsman. One finds that this is mandatory.
Question put and agreed to.
Section 12 agreed to.
SECTION 13.
Question proposed: "That section 13 stand part of the Bill."
I want to approve formally of section 13.
Question put and agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill."
In regard to the question of regulation, I should like to ask whether, apart from regulations being laid before the Houses, there will be anything in the form of a report in regard to the operation of this and other legislation which would indicate regulations already made, cases which have been referred to the tribunal and so on. I forget whether there is any provision in the Redundancy Payments Act for a report on these matters. I feel such a report is desirable.
I am afraid I do not follow the Senator. What type of case has he in mind?
I am thinking again in regard to the question of information for Members of the Oireachtas, members of the public and employers and employees, of the progress under this particular Bill and related Bills—whether there would be an annual report which would indicate what regulations were made during the year, what cases were heard under the regulations, what cases were decided by the tribunal and the case law which is built up. This would be extremely valuable and perhaps the Minister would consider the matter.
It is usual to have statutory regulations compiled in one book form but it is not usual to have an annual report.
That is why I raised the question. It is insufficient if we are to give meaningful information of the operation. If the Minister produced a report which would contain the regulations already made but also other information arising under sections other than this one, it would be a most useful document.
I will consider the matter but it is hardly the type of legislation which would require an annual report. It is different from the point of view of the Redundancy Act which has continuing functions of tremendous importance to the public with regard to economic movements. We have an annual report on that matter.
This is what I mentioned. It might be combined with the Redundancy Act report.
We will consider the matter.
If it were combined with Redundancy Act procedure we would have these related matters in the same report. This would certainly meet the case.
Question put and agreed to.
SECTION 15.
Question proposed: "That section 15 stand part of the Bill."
I merely wish to welcome the fact that the very important provisions under this Act which can be varied by order are coming before the Oireachtas for positive resolution rather than merely subject to annulment. While I am critical of some of the powers the Minister is taking, I am grateful that he has trod rather lightly on our privileges by what he has done in subsection (1).
Question put and agreed to.
Sections 16 and 17 agreed to.
FIRST SCHEDULE.
Question proposed: "That the First Schedule be the First Schedule to the Bill."
We discussed briefly on an earlier section this question of lay-off. Paragraph 3 of the First Schedule is the relevant one.
A lay-off shall not amount to the termination by an employer of his employee's service.
It becomes very important to determine exactly what a lay-off is. If we go back to section 1, we say that a a "lay-off" has the meaning assigned to it by the Act of 1967. When we look at the Act of 1967 we find that a "lay-off" has the meaning assigned to it by section 11 (1). When we eventually get to section 11 (1) we find the definition, and the key part of this particular definition is:
that it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent.
We have not too many misgivings about the question of a bona fide lay-off. That is one in which the employer, not only reasonably in the sight of the law but honestly in the light of his conscience, believes that the lay-off will not be permanent. I presume that the question of whether it is reasonable will be a matter to be determined by the Redundancy Appeals Tribunal so that that matter would be determined by them.
What is the position if an employer mistakingly believes that a cessation of employment will be permanent? The actual lay-off itself was a genuine one at the time at which the employment ceases—the employer at that time honestly believed that he would be able to re-employ. If this does not turn out to be the case, what is the position? Does it cease to be a lay-off? Does the employee then become entitled to payment in lieu of notice because what appeared to be a genuinely temporary lay-off was actually a dismissal? I see some difficulty in this regard.
I raised this point on section 1 when I referred particularly to local authorities. I am not satisfied that men who are employed by a local authority continuously for a period of three to five years and paying superannuation, because the amount of grants coming from the Department were able to keep them in employment, are suddenly laid off by the engineering section due to increases in wages, materials and machinery costs. I consider this action a dismissal, though the Minister has a better term for it in "lay-off". In many cases these people are disemployed around 1st January. As this is nearing the end of the financial year, they are still unemployed by the local authority until the beginning of the next financial year, after the 1st April.
These people are entitled to be regarded as employees. They have been in service up to five years. They are paying superannuation. It is most unfair that the local authority should get away with this as a lay-off. It is only a temporary lay-off, therefore they do not come within the ambit of this Bill. Can we expect those people to wait around for three months and then find, perhaps due to mechanisation or some other reason, that they may not be re-employed? Then the position referred to by Senator Dooge arises. Are those people then entitled to their notice with pay in the same way as other employees under this Bill?
I am afraid we are wandering into a discussion of the Redundancy Act rather than a discussion on this Bill which deals mainly with minimum notice of employment and termination of employment. If a man is laid off work or ceases to be available for work for seasonal or other reasons he may have got notice and he may not be entitled to anything. He may only be entitled to notice that as of next week he will not be in employment until certain things happen. One has to thread very warily on this matter because we are inclined to think mainly of fixed industrial employment but there are many kinds of employment.
I can visualise the fishing industry where men are employed on three shifts a day processing fish in processing factories, but the following month there may not be an hour's work available there because of a shortage of fish. This can be intermittent and irregular employment through no fault of anybody but governed by weather conditions and the availability of the relevant commodity. This also happens in harvesting operations in relation to crops and so on. We must be very careful not to put people into straitjackets in relation to all types of employment. The provision contained here is the best we could do in the circumstances and the least we could do in order not to be unduly severe on people who find themselves in a seasonal trade.
I agree with what the Minister has said in connection with employments of that kind, but I am referring to people who have been employed for two years. Under section 4 of this Bill employees with two years or more but less than five years' employment are entitled to two weeks' notice.
Or payment in lieu.
If they do not get the two weeks' notice they are entitled to two weeks' payment. This does not happen so far as local authorities are concerned. Why are those employees excluded from this Bill? They very rarely get the two weeks' notice. They are usually told on Tuesday or Wednesday that there is no more money in the fund and they cannot be retained beyond the end of the week. Consequently, they can be unemployed for three months. The Minister has referred to that situation as a "lay-off". Those people are entitled to either two weeks' notice or two weeks' payment.
The Bill provides for that.
So that in future they will have to get two weeks' notice?
Is it quite clear that the Bill provides for notice or payment in lieu for anyone who is subject to lay-off?
You could not possibly legislate for unforeseen situations of lay-offs which could result in being permanent and actually turn out to be termination of employment. One can visualise many cases where workers would be laid-off and not be re-employed for months. In those cases the workers would be entitled to claim redundancy under the Redundancy Act. At the same time the employer could not predict whether he would want them the following week. This happens in many types of employment and we must make allowance for it.
My trouble is that we may have two cases, quite parallel. In one case the employer can estimate the future accurately. He says to his worker: "I am sorry, I have no work for you. Things are bad and they are not going to become any better." This worker is entitled to notice or payment in lieu. The other man, in exactly the same position, works for Mr. Micawber. Mr. Micawber says to him: "I am sorry, I have no work for you for the next month but I am quite sure business is going to pick up and I will be able to re-employ you." As I read it, that is a lay-off under the definition which was imported from the 1967 Act into this Bill. For this condition, Mr. Micawber says: "I have reasonable grounds for thinking that something will turn up in a month's time and I will be able to re-employ you" and that man is not entitled to his notice nor entitled to payment in lieu. This man is suffering a loss of right compared to the other man just because he works for Mr. Micawber.
The trouble here is that the definition of "lay-off" is defined completely in terms of what happens when the man stops working for the employer. It should be possible to get over this difficulty by saying in the Schedule "A lay-off shall not amount to the termination by an employer of his employee's service unless the employee who has been laid-off is not re-employed within two years, three years or five years." We should make some provision for his case; otherwise an inequity will arise because of the fact that there is reasonable ground to say at the time "I am sure business is going to pick up and I will be able to re-employ you" and this person would not get a payment in lieu of notice to which he is otherwise entitled. I do not know whether the appeals tribunal would find Mr. Micawber to be unreasonable.
Supposing there are reasonable grounds and it is, in every sense, a genuine lay-off but something intervenes and the employer's hopes are proved to be false, what is the position in that case if you do not amend the Schedule as suggested by Senator Dooge?
That is a very genuine case. This is why I do not want to tighten up this section and make it imperative or mandatory on persons to clearly state to the employee whether he is being laid-off or whether he is being given notice of termination of employment. If I did so it could very easily react to the disadvantage of the employee under present circumstances. If "lay-off" and "termination of employment" are clearly defined in the Bill we will put the employer in the position where he will take no risk and when there is a lay-off he will just say: "You are getting a week's notice now." This man would prefer a lay-off because the lay-off carries with it continuity of employment. When he claims, at some stage in his life, redundancy payments he must prove continuity of employment. Termination of employment is a serious matter for him. His employment has been terminated, he has been re-employed but he has not got the continuity necessary to give him the advantage of the Redundancy Act.
I can see the merit of that.
In that case there is re-employment but the case we have been arguing is the case where there is not re-employment.
The case I am trying to make is that if you are going to more clearly define "lay-off" and "termination of employment" here, the employer will opt for the easier course. Even though he may expect to be taking back the worker in a fortnight or three weeks' time he will take the easier course by giving him a week's notice which then can be regarded as termination of employment.
I can see the merit of the Minister's point but I confess it is the first time in my recollection that I have ever heard a Minister arguing for the virtue of legislating for vagueness.
There is another difficulty. If a man is laid off he may be told by his employer: "I have no employment for you for the next month or six weeks." That man signs up at the employment exchange on the following Monday. Perhaps he signs for five weeks and there is no sign of a job turning up. He is told at the employment exchange that there was a man looking for workers for a building site and he is asked: "Are you prepared to go there?" If that man goes there, what is the position of his employer who laid him off?
The employee may voluntarily terminate his employment at any time.
And instead of notice, he gets a week's or fortnight's pay?
Provided he did not get the week's notice, of course. The point the Senator is missing is that with lay-offs it is quite easy to give a week's notice; even there a man can protect himself both ways. An employee can be told: "You will be laid off next Monday week."
I would not like to write into the Bill that he must be compelled, because it says now that it is of great importance to the employee to preserve his continued employment.
I do not expect the Minister to do that but the point I am making is that an individual employer, such as a farmer or a small business contractor, will usually give a man a week's or a fortnight's notice. I am speaking about the big employer, like a local authority. The ganger comes from the engineer's office and says to the men: "I am sorry, but your employment will be terminated on Friday next." There is no week's notice there.
While listening to Senator Fitzgerald's contribution with regard to the local authorities a point occurred to me. He referred to a superannuation worker who would be informed by the ganger that he was being laid off, and Senator Fitzgerald says that he should get notice or get payment in lieu of notice. If he accepts payment in lieu of notice, instead of being laid off work, at his own request, he forfeits all his superannuation rights. If you are sacked from a job, your superannuation goes with you.
Yes, if you are sacked for an offence. If you are sacked because your employer has no money, it is a different story.
Under this Bill, if a worker goes to the county council and says: "I want either a fortnight's notice or money in lieu of it" and if the county council say: "Very well, we will give you a fortnight's pay in lieu of the notice", in my opinion he has converted himself from the lay-off to a dismissed worker, and his superannuation goes with him. It is well known to anybody connected with county council operations that if a person is sacked or dismissed he forfeits his superannuation.
What is the distinction to an unemployed worker between being a dismissed worker and one who has been rendered unemployed due to a lay-off?
If he accepts the payment in lieu of notice——
Which he is entitled to receive under this Bill.
No, he is not entitled to get it because it was a lay-off. If he accepts that, he is dismissing himself, and he loses his superannuation.
I cannot follow Senator Honan's argument at all. The point I am making is that a man has been working for two, three or five years, and then, due to circumstances over which he has no control, finds that he is laid off. "Laid off" is a nice term—in other words, he is not dismissed, but he is unemployed for three months, perhaps, before he can be re-employed by the local authority.
This is a point we might all look at. There is a real difficulty in regard to lay-off. I am worried about the lay-off which starts as a genuine lay-off and ultimately turns into a dismissal. We should make some provision for this.
A trade union would have no difficulty in telling you to leave it as it is. There are privileges and rights inherent in a lay-off that are not available to a dismissed worker.
My main concern is with something that starts as a lay-off and turns into something else due to the fact that the employer is not able to re-employ. The rights under this Bill will be lost under those conditions.
As I pointed out already, he can have it both ways. Even for a lay-off he can still get a week's notice which he does not want.
He might get a week's notice.
What most workers will not want is a week's notice in the case of a lay-off. A week's notice can be interpreted as termination and this is one of the things above all that he does not want.
It may be that we should not adopt the definition of "lay-off" in the 1967 Act, but treat "lay-off" differently in this Bill as compared with the 1967 Act.
We had fair discussion with most people before we decided on this and we are as near as possible to avoiding trouble as it is.
Paragraph 6 of the Schedule reads:
The continuous service of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee.
I would like to ask the Minister how can one interpret "immediate re-employment" here? If one goes as usual to the 1967 Act, with which this Bill is linked, one finds in section 9 some concern with the question of dismissal and re-employment, but cannot find a single clear meaning of "immediate". In section 9 of the 1967 Act there are references to employment on a Monday, where dismissal has taken place on the previous Friday, Saturday or Sunday. There are also references to re-employment within four weeks. Which can be taken as the definition of continuity in the case of this Bill?
This particular paragraph strengthens what I have already been trying to say and is based on the sanctity of this whole question of continuity. It is put in for the purpose of a situation where termination takes place. Next day the employer may find that he can take this man back. Perhaps somebody else says: "I want to go off, I am finishing". In that case the employer might take back the man he had paid off the previous day. This is to ensure that he gets this continuity.
Is it the next day, or is it within the period of notice, or within four weeks, which is mentioned? What does "immediate" mean? I agree entirely with the Minister that it is most important. However, it is most important that we should be clear that the tribunal which may have to arbitrate in a dispute should be clear as to the meaning of "immediate" in this particular paragraph.
I would prefer if you did not ask me to set down, say, within the next 24 hours or within the next 48 hours. It would be better if the tribunal decided what they think is "immediate". I do not think the Senator will press me to define this.
The Minister may well be right on this——
I have a distinct recollection of sitting round the table and discussing this before reaching this decision.
From the point of view of whoever might be trying to work a quick one, I think the Minister's point of view is the correct one. It should not be specified for 24 or 48 hours because if you did that the employer who tried to work a quick one would hold out until the specified period was up.
Paragraph 7 reads
If a trade or business is transferred from one person to another (whether or not such transfer took place before or after the commencement of this Act) the continuous service of an employee in that trade or business at the time of the transfer shall be reckoned as continuous service with the transferee and the transferer shall not operate to break the continuity of the service of the employee.
This just refers to a business as if it was an individual business. Does it refer to mergers or take-overs or big businesses and so on?
It is almost word for word from the Redundancy Act.
On that paragraph I thought of two situations which might not be covered. The word "transferred" contemplates a definite life time passing of a trade or business from one person to another. It does not take into account the case of transmission where a trade or business might be left by a father to his son, or any other transmission by operation of law which might not be a transfer. I presume the continuity of service is intended to be preserved if a man is employed for a few years by a father who then leaves his business to his son and continues to be employed by the son. Presumably although he had two employers it is intended that there should be continuity of service between the two. The wording in this Bill does not take care of that.
In the case of a person who is not employed in a trade or business but who is employed domestically or privately and who is employed at one stage by one member of the family and at another stage by another and whose employment may never have been terminated, I presume that the continuity of the service of that employee is intended to be preserved for the purposes of determining what that employee's rights should be with respect to the notice to be given under this Bill.
Is there a claim under this Bill against the estate of a deceased employer? Would a claim arise against the estate of a deceased employer? I take a different view from that of Senator FitzGerald on this. In the second type of case to which he refers—personal service to an individual—if the employer dies and the employee remains on in the same or a similar capacity with another member of the family, I imagine it would be regarded as a new contract of service with the new person. I am not clear on whether that is intended or not.
I think it is a new contract but it should be treated as continuous service for the purposes of notice rights.
Section 7 does that. If there is a transfer of the business an employee can continue to work there. For instance in the case of a public-house, it might be sold to somebody or transferred or it might change hands and if the same staff remain on they have continuity.
That would not be a transfer.
Or it might go to the widow. Could I direct the Senator's attention to subsection (1) of section 20 of the Redundancy Payments Act which reads:
...where a change occurs (whether by virtue of a sale or other disposition or operation of law)....
Here there is a definite attempt to cover the categories which Senator FitzGerald is trying to ensure are covered in paragraph 7. It might be worth looking at.
In relation to this paragraph, if a trade or business is transferred from one person to another are there any conditions laid down that if a firm intend closing down a section, are they expected to notify the Department of Labour or the Department of Industry and Commerce? If in the event of any company or firm intending to take over, or setting about taking over another company, are they required to lay down any conditions of continuity of employment? I have a particular paper-making firm in mind which has closed down in south County Dublin. The conditions under which it was taken over were most unsatisfactory and the manner in which it was closed down later on was most unsatisfactory also.
I want to ask the Minister what is intended here? Looking at it from the point of view of a purchaser of a business vis-a-vis the vendor, if we are to have a situation in our legislation where a purchaser purchasing a business is given to understand that he is also taking on all the employees of the vendor, whether he likes it or not, that would have a depressing effect on sales of businesses. That is probably not intended. If by reason of the sale of a business the vendor is required to dispense with the services of any of the employees before handing over to the purchaser, the employee will have his rights under the Redundancy Act, 1967, but is there a danger that paragraph 7 of this Schedule will impose on the purchaser, while purchasing the business, the obligation to take over all the employees of that business?
As far as I remember the position under the Redundancy Act is that he has an option. If the place is changing hands and he wishes to have continuity of employment he could continue with the rights he had but if he is going to have it regarded as a termination, his previous employer must pay him the lump sum which is due under redundancy and from there on his rights are dated from the day he started with the new employer.
He is actually gaining something but he has to build up his future rights again. The same would apply to the notice under this Bill. If he is six years employed and entitled to have X number of weeks notice and if he is given the necessary number of weeks notice or pay in lieu of them and if at the end of that time he starts work again with the new employer he is starting as he originally commenced.
I would have thought that the phrase "continuous service of the employee" is continuous service by agreement between the employee and the new owner.
That is exactly the position.
What safeguards have a section of workers if they are employed by a firm about to be taken over and possibly taken over from the point of view of being closed down? Have they any rights or powers to negotiate in an instance like that? In relation to the case I have mentioned there were a number of workers employed for 30 and 40 years there who were still young people. The whole parish is unemployed as a result of the action taken by this firm.
This Bill has nothing to do with that situation. We are discussing minimum notice. If a firm took over another firm with the intention of closing it down we would be obliged to give them the requisite notice of termination of employment. They would have no redress after that. They would have certain rights on redundancy but we are not discussing that here.
The last time I was in Brussels the Council of Ministers were discussing the bringing in of future regulations dealing with what they call "collective dismissals" in order to ensure that no firm would close down unexpectedly. Long notice would be given and time taken to examine whether it should close at all.
Paragraph 8 is concerned with the question of the definition of full-time working. The Minister has given himself a great deal of flexibility in the Bill but this question of 21 hours appears rather firm. In the British Act of 1963 the period of 21 hours is one of the specific things in this much shorter Act which the appropriate Minister is enabled to amend simply by regulation.
Has the Minister power to amend this in the Schedule to this Bill? As working hours became shorter in the future the relationship of the 21 hours to the full working week would become distorted and some amendment would be necessary. Is this amendment possible.
The Minister has power to change that by order.
By order rather than by regulation?
Yes.
Being an amendment to the Schedule would it then be covered by order? Sections 3, 4 and 9 were covered by order.
The Minister has power to make any changes necessary from time to time without having to enact new legislation.
Yes, the First Schedule is essentially referred to in subsection (3) of section 4. It seems all right.
That covers a case where a person would be employed permanently, such as a married woman who would work temporarily for a period and then go back to full-time employment. Continuity of employment is not broken but the time during which she would be working less than 21 hours per week would not be reckoned as service.
With great respect, where does the Minister have the power to reduce the 21 hours?
The Senators have been complaining that the Minister is taking too much power under this.
We cannot be right.
Subsections (3) and (4), section 3.
Then the Minister is stating this is transitional and supplemental.
It is very general.
The difficulty here is that the Minister has specifically taken power in subsection (4) of section 4 to vary in the sense of increase, as we are agreed, the notice which must be given. He can alter the general entitlement.
He also has power elsewhere to bring certain classes of persons within the Bill. I do not know whether he could bring in the class of persons who work between 18 and 21 hours, with the Schedule still standing as it does. How does the Minister amend the Schedule? Having specifically taken the power under section 4 (4) to vary the Schedule it might be as well in section 4 (4) to say that the Minister may vary the minimum period of notice specified in subsection (2) or vary the number of hours referred to in paragraph blank of the Schedule. Having mentioned one it might be desirable to mention the other.
There is enough flexibility in it to reduce the number of hours or increase them.
The Minister is now confirming our worst fears about the wide powers he is giving himself.
If at some future stage the working hours were changed it would be necessary without bringing in new legislation.
I am sure the Minister would not be opposed if he brought in such an order.
I should like to suggest to the Minister that Senator Alexis FitzGerald and Senator Dooge are right in this. Earlier I had a look at section 3 (4) and thought it was in terms so general that it would give the Minister power to make an order amending the Schedule. On looking at it again I am not sure that that is the correct interpretation. Section 3 (4) states: "an order made by the Minister under this section may include such transitional and supplemental..."
As Senator Dooge pointed out, any order up to this point must be either transitional or supplemental. It then goes on: "or other provisions as may appear to the Minister to be necessary or expedient". Nowhere does it refer to an amendment of the Schedule or anything else. He may make an order dealing with a matter which is transitional or supplemental to a provision in the Bill or supplemental to an order already made. An order may include other provisions as appear to the Minister to be necessary and expedient.
That clearly means that "other" is being used in the sense of additional provisions not in the sense of amending a provision already there. The Minister should have another look at this.
Yes. I will also examine it to see whether the power is not in some other section.
Question put and agreed to.
SECOND SCHEDULE.
Question proposed: "That the Second Schedule be the Second Schedule to the Bill."
I should like to confirm on the Second Schedule that any disputes arising in regard to this Schedule, such as a dispute in regard to what would be work of a reasonable nature under paragraph 4, will all be matters to be dealt with by the Redundancy Appeals Tribunal.
I did not catch what the Senator said.
The point is we have under paragraph 4 a provision that an employee for whom there are no normal working hours and for whom no work is available must be willing to do work of a reasonable nature. If any dispute arises in regard to whether the work offered to him is work of a reasonable nature or not would this dispute be determined by the Redundancy Appeals Tribunal?
Absolutely. That is one of the things which is very much at fault with the redundancy payments too.
I take it that although this is a matter to be determined by such a tribunal this does not preclude the question of informal attempts to resolve such disputes?
It may not have to go to the tribunal if both parties agree.
Is it open to them to call in a rights commissioner on a question of reasonable work or would they be obliged to go to the tribunal?
Only if it is a subject of dispute. His interpretation may not be the legal one.
Question put and agreed to.
Title agreed to.
Bill reported without amendment.
Next Stage?
The 17th January.
I undertook to look at some matters on which questions arose to see if any changes in the wording should be considered. I will do so. In this legislation we must visualise the worst type of employer and employee. The good employer and employee will have no problem. In drafting legislation one has to keep the other type in mind. The Bill is legalising what is already the actual position. Good firms give better notice than what is being prescribed in the Bill. At least it sets out the minimum.
We would be glad if the Minister would consider these various points and if necessary put down amendments.
Report Stage ordered for Wednesday, 17th January, 1973.
The Seanad adjourned at 8.40 p.m. until 3 p.m. on Wednesday, 17th January, 1973.