Before we take up consideration of the Report Stage of this Bill, I should like to indicate that I have ruled amendment No. 7, in the names of Senator Alexis FitzGerald and Senator Dooge, out of order. It involves the imposition of pecuniary penalties which is not permissible by amendment on the Fourth Stage under Standing Order No. 88.
Minimum Notice and Terms of Employment Bill, 1972: Report and Final Stages.
I accept the ruling of the Chair with regard to that amendment and I propose to have the Bill recommitted to deal with the amendment which would be appropriate to be dealt with on Committee Stage but not, as the Chair has ruled, on Report Stage.
The Senator may raise that point when we have dealt with amendments Nos. 1 to 6.
I move amendment No. 1:
In page 2, between lines 27 and 28, to insert "‘misconduct' has the meaning assigned to it by section 14 of the Act of 1957".
The amendment stands in the names of Senator Dooge and myself. I do not think it is possible to make a case for the amendment of section 1, which is proposed by this amendment, without inviting the attention of the House to section 8 of the Bill, the language therein used and the language used in section 14 of the Redundancy Payments Act, 1967, which is the Act of 1967 referred to in the Bill and in the amendment. Section 8 of the Bill contains the very proper, acceptable and understandable provision that nothing in this Act relative to provision for minimum notice should affect the right of any employer or employee to terminate the contract of employment without notice because of misconduct by the other party.
It is not proposed by the terms of this amendment to decide what, in fact, is for the law courts to decide in any given case—what would be tantamount to misconduct—but to collect and appropriate to section 8, through an interposed definition in section 1, the language of section 14 of the Redundancy Payments Act of 1967, which makes clear, for the purposes of my argument, two points: (1) that the misconduct which here is envisaged, and which is to remain as a justification of a right on the part of the employer or on the part of the employee, be such misconduct as would entitle the one or the other to terminate contract of employment without notice. It could be argued with regard to any construction of this section that this was the only kind of misconduct which the section had in mind—misconduct which gave rise to a right. If we could look at one Act only we would be concerned to make the point which is being made in this amendment, were it not for the fact that we can look— and it would be advisable for the court to look—at another Act in relation to the interpretation of this Act.
Some lawyer could argue that here there is another type of misconduct being envisaged, something more extensive than the type of misconduct which would under section 14 be in mind when they talk about such misconduct as would entitle the employer to terminate the contract of the employee; (2) there is a distinct, deliberate and clear saver with regard to redundancy rights in section 14 for such misconduct as might be seen by one party to a contract as being the proper legal description of the conduct of the other party when that other party goes on strike. Under section 14, there is a clear saver so as to preserve the right to redundancy payment where there is a strike, which, were it not for the provisions of section 14, could in law constitute legal misconduct entitling the other party to terminate the employment.
We have a situation under which the redundancy payment rights are preserved by the language of section 14 of the Redundancy Payments Act, 1967, if the employee is on strike, whereas the right to minimum notice and the right to other payments in lieu, or all other rights under the Minimum Employment Act are not saved by express terms in the language of section 8 or in an appropriate definition such as is sought to be offered for acceptance to the House in this amendment. Therefore, we can have the position that a statute is proposing to confer two different types of rights on the employees. In the one case the right stand preserved if he is on strike; in the other case the right may not stand preserved. Logically, it does not appear to make sense or does not appear to be a proper type of argument.
I hope I do not sound legalistic on this, but if you happen to be a lawyer it is very hard to avoid sounding legalistic. If there is a second right, the fact that that second right may be in most, if not all, material circumstances of less value than the other, does not mean that it ought not to be preserved in the same circumstances in which the other right, the right that is more valuable materially, is preserved. I do not think that the Minister or anyone in the House is really in a position to assess all the different types of circumstances, where we have, for example, as is contemplated, in an employment situation where there is continuous service for 15 years or longer, an eight-week right to notice. We cannot in all circumstances—perhaps the Minister may be able to contradict me flatly on this—and covering every case, say that anybody entitled to eight weeks' notice under section 4 will have by virtue of that right to eight weeks' notice a lesser right than he would have to the redundancy payment provision under the Redundancy Payment Act, 1967, as amended by the 1971 Act.
I should like to support this amendment, for the reasons given. It is necessary that we insert the more precise definition of the use of the word "misconduct" in section 8. A very good way of doing this is the amendment suggested, that we do so by reference to the Redundancy Payments Act, 1967. This is necessary because, under the actual wording of section 8, it provides that 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. As Senator FitzGerald has pointed out, there is no criteria by which we can determine what is meant by "misconduct" here. In view of the fact that we do not have any provision for unfair dismissal in our legislation, it is important that we define, very carefully, the meaning of "misconduct" here. I am informed—and here I picked the brains of the lecturer in labour law in Trinity College—that we are the only country in the European Community that does not have provision for unfair dismissal. Therefore, it is even more important that we have precision in the meaning of words such as "misconduct" when they are inserted into legislation. I should like to support this amendment for that reason and also for the reasons given by Senator FitzGerald.
Mr. J. Brennan
This amendment proposes that "misconduct" should be defined in the same terms as defined in section 14 of the Redundancy Payments Act, 1967. I should like to point out that section 14 of the 1967 Act does not, in fact, define "misconduct". Subsection (1) speaks of an employee who has been dismissed by an employer who is entitled to terminate that employee's contract of employment without notice by reason of the employee's conduct. There is no definition of what is the kind of conduct that would justify an employer taking that course of action.
Subsections (2) and (3) exempt from this provision strikes which take place in certain circumstances. The only inference as regards misconduct that could be drawn from these exceptions is that going on strike is probably the kind of conduct that would justify an employer summarily terminating the contract of employment. If this were not so, there would be no need to make special provision for any kind of strike. Strikes are a refusal to operate the contract, usually coupled with a demand to change it. Most people consider that a refusal to operate the contract would strike at its roots, naturally.
Paragraph 4 of the First Schedule provides that for the purpose of the Bill, a strike will not, of itself, terminate the contract.
In view of this, I must reject the proposed amendment. The tribunal would have no difficulty at any time in deciding this issue if there was any doubt. As I have already stated on Committee Stage, to define misconduct would be a difficult undertaking in the context of the Bill. The position must remain as it is in all Bills. There must be exception taken to cases where misconduct occurs, otherwise there could be anomalous situations where it would be impossible for an employer to carry on.
Does the Minister accept that we are the only country in the European Community which has no provision for unfair dismissal, which would be important in relation to the free movement of workers?
Mr. J. Brennan
We have no specific Act dealing with the matter as such but it is frequently dealt with in our courts of common law.
Yes, but there is a gap in the common law in that you cannot get compensation for unfair dismissal.
I think I am entitled to observe by way of reply to the Minister that, while there is no express definition, nor did the draftsmen of this amendment think there was such an express definition of misconduct, by the adoption of the language of section 14, when identified the type of misconduct is misconduct entitling the party to terminate. By adopting the language of section 14 it preserved the position that the right to notice under section 4 of this Bill is not lost through going on strike just as the redundancy right is not lost by going on strike under section 14. If the language stands, as the Minister proposes it should, it would be correct to assume —and the tribunal must accept this— that if an employee goes on strike it will be considered as misconduct and result in the employer being justified in terminating employment and not giving the notice provided for under section 4 even though the tribunal will be obliged to see that the employee's redundancy rights are preserved by virtue of the language of section 14. I regret the Minister's decision on this point.
Mr. J. Brennan
As I have already pointed out, paragraph 4 of the First Schedule states clearly that a strike will not of itself terminate a contract. That should be a sufficient safeguard as far as the Senator's anxieties may be concerned.
While the definitions in this Bill are in the main designed to correspond with the definitions in the 1967 Redundancy Act, we must keep in mind when discussing this Bill that from a purely academic or technical point of view the two Acts seek to do different things. This Bill of Minimum Notice and Terms of Employment is one where an employee will seek to get his statutory period of notice laid down in the legislation which we are endeavouring to pass, whereas in the Redundancy Act of 1967, in many cases, it would suit his purpose to have his employment terminated so that he may pursue his right to redundancy. We should not try to seek analogies between the purposes of the two Acts which are diametrically opposed.
Standing Orders make me silent.
Amendment, by leave, withdrawn.
I move amendment No. 2:
In page 3, line 28, to delete "supplemental or other" and substitute "other supplemental and incidental".
The case for this amendment was well made by Senator Dooge, in whose name, with my own, the amendment stands, on Committee Stage, when he pointed out that the words "or other" may mean that the order the Minister may make under subsection (iv) might be orderly under the section even though they were neither transitional nor supplemental; that it would be open to the Minister, in the view expressed by him on Committee, to include provisions which he regarded as necessary and expedient even if they were not transitional or supplemental. I do not propose to say much on this matter except to remind the Minister that he said he would have a look at the point. The amendment which is before the House may recommend itself to him. It should, with regard to the extensive provisions for variation of this Bill which are contained throughout it by ministerial order and the undesirability—a view shared by Members of this House— of an excessive delegation of power to legislate by ministerial order, particularly in regard to the practical point that when we have an order before us for consideration under this Bill that if it contains a number of different items—and we like four out of five—there is no provision whereby we can amend that order. So, we may effectively have given over to the Minister the power to do this, even if the House does not like what he is proposing to do with regard to a particular matter or if it happens to like what he is proposing to do with regard to a number of other matters. In any case, as we know from practice, no ministerial order ever gets that kind of useful debate about its contents which hopefully a Bill should get.
Mr. J. Brennan
The section says:
An order made by the Minister under this section may include such transitional and supplemental or other provisions as appear to the Minister to be necessary or expedient.
I thought that this was necessary in the original drafting of the Bill and that it was a necessary provision to insert in a Bill which inevitably will require certain improvements and amendments as time goes on. The Senator seeks to restrict what the Minister may do in the amendment. The amendment proposes to substitute the phrase "other supplemental and incidental". The draftsman advised that his wording is better and that it is not a matter of any great consequence.
I would again remind the House that any order under this Bill or this subsection must go before both Houses of the Oireachtas by way of resolution. It is not sufficient to lay them before the Houses of the Oireachtas. The resolution must be proposed and may be debated in the ordinary way. A provision which allows for a little bit of manoeuvring that might obviate the necessity for an amending Bill is a good one.
If the Senator wishes to press for this change, I would raise no objection. Candidly, the wording was calculated to give a little more manoeuvrability in matters which might arise with the passage of time regarding certain regulations which could be called on for the improvement or amendment of the legislation in regard to the conditions with which the Bill deals. If the Seanad is convinced that this amendment is an improvement, that it would be better to circumscribe what the Minister may do to this extent, I will not oppose it. However, I am advised that the original wording is more suitable.
Perhaps I might be assisted by hearing the views of other Senators?
Is the Senator withdrawing his amendment?
Listening to Senator Dooge when he spoke on Committee Stage of this Bill, I think he made a very strong case for giving the Minister all the power which he legitimately needs. I agree with the Minister that there is a desirable need for flexibility here and he should not be required to come back to the House with a new Bill for very minor changes in this area. However, that is provided for in the wording of the amendment and we still have the safeguard that the matters are supplemental and incidental. As the Bill stands, the wording in the section does appear to give the Minister power to make an order relating to other provisions. It is not clear that these are supplemental to the provisions of the section and I should prefer to see this amendment pressed. The arguments have been very thoroughly gone into on Committee Stage and I was persuaded by them.
I should like to commend the Minister on his generous attitude. I am grateful to him but I share Senator Robinson's views with regard to this amendment. I was convinced by the case which was made for it. I agreed to support this amendment when it was proposed that it should be put forward on Report Stage. If the Minister does not think I am treating him unkindly, I would accept his offer and press the amendment.
Mr. J. Brennan
As I have already said, I am not worried about accepting this amendment other than that I could see at some stage that it would be a most essential and important subsection. Frequently in the Dáil when I am pressed to do something, I have to point out in reply to a Parliamentary question this would require legislation. Sometimes Members are quick to point out that it can be done by regulation. It would be more expedient and more likely to be dealt with immediately when the question of time has made it obvious that a change is necessary. I thought this section would be particularly useful in that respect. At whatever time it might be considered necessary to amend the Bill it might put the Minister for Labour in a position to bring in amending legislation. That is the only difference. I should prefer not to accept this amendment, but I do not wish to appear to be stonewalling it. On final consideration I would ask the Seanad to withdraw the amendment.
I am afraid I shall have to ask the Minister not to think me unkind in not withdrawing it.
Is the Senator anxious to press the amendment?
Mr. J. Brennan
I will accept the amendment.
Amendment agreed to.
I move amendment No. 3:
In page 4, line 1, to delete "vary" and substitute "increase".
I do not propose to take up the time of the House on this. The House is agreed that the provisions of the Bill are welcome and that the minimum periods are regarded as permanently minimum and that the only variation with regard to these should be an upward one. It is proposed in this amendment to change the word "vary" to "increase". The Minister indicated that he might be prepared to change this word in subsection (4) of section 4 to make the legislation accord with his and the common intention of the House.
On Committee Stage I pointed out that although I would agree with the Minister that what this section is laying down are minimum periods of notice—this is the whole direction of this legislation; it is implied that any variation will be an increase—nevertheless, the word is "vary". I quoted from the Minister's speech on Second Reading where he showed that there had to be a good deal of bargaining in order to get acceptance from both sides of this minimum period of notice. I do not think there is a sufficient safeguard in that orders under this section have to be laid in draft form before both Houses of the Oireachtas. I am glad that it has to be in draft form and that both Houses of the Oireachtas will consider such orders. However, in effect the consideration of an order is a very limited supervising role of the Oireachtas since if a number of amendments were made, the majority of them increasing the requirement for minimum periods of notice and one of them shortening the period in relation to one particular category of employee, the House cannot amend an order in draft. It can only reject it. In order to ensure that the word "vary" will always mean vary upwards I suggest that it is both a reasonable and important amendment to change the word to "increase" so that this is made clear on the face of it and that any judges of tribunals interpreting this will be clear that not only was it the intention of the Seanad, and that this was put on record, but that it is implicit in the word that we use. For those reasons I strongly support the amendment.
Mr. J. Brennan
On Committee Stage it was pointed out by a Senator that the word "vary" was more flexible than "increase". It would enable the Minister to exercise an option of either increasing the period of notice or reducing the amount of service needed to qualify for any particular amount of notice. We are quibbling here about the scope which the word may give to the Minister to change the period of notice upwards or downwards. I could visualise many situations arising where the word "vary" would be much more useful in the legislation than "increase". In view of the fact that it is not a very significant change I would ask that the word "vary" be retained. I do not think anybody could think that the Minister would wish to reduce the period of notice. Nobody can conceive of a Minister wanting to reduce periods of notice. The word "vary" could have the effect of allowing the Minister greater flexibility. I would prefer that the Senators proposing this amendment would not press it.
In view of the fact that in order to change this a draft regulation would have to be passed by both Houses it is more unlikely that any changes will be made unless a very good case is put up. In the circumstances, I agree that "vary" is a more useful and flexible word than "increase". The amendment should not be pressed.
I do not propose to press the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 4:
In page 4, line 32, before "payment" to insert "or withholding".
Section 7 (1) provides that the employee and employer may come together and agree to a waiver of the right to notice that the one may have against the other. It also provides that nothing in the Bill will preclude acceptance of payment in lieu of notice. “Acceptance of payment” is language which seems to govern both employer and employee and contemplates payment by either to the other. This might arise if the employee did not give the requisite notice to the employer. The notice referred to here is presumably the minimum notice provided for by statute. What is sought to be preserved by this amendment is the right of an employer who has paid wages for work done and then finds that the employee is not giving him statutory notice to which he is entitled. The employer has the right to withhold out of the wages due the sum which is due to him in lieu of the notice he should get from the employee. It makes a better balanced piece of legislation and is a good amendment.
Mr. J. Brennan
I cannot agree with the Senator on this point. This section is provided to facilitate the type of situation where it would suit both employer and employee, or one of them, by agreement to waive the requirement with regard to the period of notice. There could be the occasion when an employee is offered a better job and would like to be relieved from the requirement to give notice and, by agreement with his employer, this could be done.
The amendment proposes to allow an employer to exercise his right to withold payment in lieu of notice. The discussion on Committee Stage centered on the situation where an employee leaves his employment without giving notice. In that situation there is no obligation to pay money in lieu of notice and the question of the right to withhold payment would not arise. With regard to withholding any other money such as wages due, the law does not recognise any general rights on the part of the employer to do this. It is a matter of contract law which can be decided only by a court of law in any particular case. The employee involved would have to sue the employer.
If an employee leaves his employment without giving notice, there is no money due to him and the question of withholding payment does not arise. This amendment is superfluous, and I strongly urge that it be withdrawn.
It is a logically desirable and justifiable amendment, but I am not pressing it.
Amendment, by leave, withdrawn.
I move amendment No. 5:
In page 5, line 25, before "within" to insert "within one month of the coming into operation of this Act furnish to his existing employees and thereafter".
This is a most desirable amendment. As I understand the position, at any time an employee may look for a written statement containing the specified particulars of the contract of employment. In addition to this right which the employee may or may not exercise, there is an obligation on the employer to furnish the employee with the particulars specified in the section within one month of commencement of work.
This amendment proposes in respect of employments existing before the date of coming into operation of the Act, to put the obligation on the employer to furnish the particulars specified within one month. I should like the Minister to describe how he envisages the Act will take effect when it comes into operation. As I understand the terms of the section, the Minister at a certain point of time will make an order bringing the Act into force and effect. Thereafter, in respect of all employments existing before the date of the coming into operation of the Act the employee at any time will be entitled to look for and obtain this information. In relation to all new employments starting after the date of coming into operation of the Act, the employer must furnish the information.
I want to understand the policy of the Minister on this and to be sensible about it, because it could affect my attitude to the proposed amendment. Does the Minister contemplate that a considerable number of contracts of employment will be in existence when the Bill comes into operation? Terms of employment will not be required to be specified unless the employee asks that they should be and the employer will only have obligation to specify these terms in relation to employments and contracts commencing after the date of the coming into operation of the Bill.
Before the Minister replies to that question, I should like to support this amendment. Although I welcome this Bill, it is a minimal Bill about minimum notices and terms of employment. It is necessary to look at the reality of the situation and to realise that a great deal of the value of this section about giving notice of minimum terms of employment is lost if the particular employees have to ask individually for the terms of employment, If we do not insert a duty on the employer to supply the written statement to this effect. This is particularly so in this country because we do not have a provision for unfair dismissal. It might well be that, if a particular employee was making a nuisance of himself or thought he would make a nuisance of himself by requiring the terms and conditions, he could be given the proper notice and just dismissed. In England, under the Industrial Relations Act, an employee could bring an action for compensation for unfair dismissal but an employee would have no such remedy here. We should be careful not to put on employees the burden of individually asking for a statement as to the terms and conditions of employment. It is not sufficient to provide that this be given to new employees who are taken on after this Act comes into operation. We were slow in coming around to providing this legislation by comparison with the 1965 Act in Northern Ireland, the 1963 Act in England and an amending Act in 1972. We should accept this amendment and insert the provision which will mean that the employer, as at the date of operation of the Bill, will be issuing a statement to all employees of the terms of employment.
This would make the Bill a reality, not inoperable as it will be if it is left to the individual request of employees who might not be prepared to risk making nuisances of themselves.
Mr. J. Brennan
The subsection provides that all new employees must get the terms of their employment within a month of their entering employment. The amendment proposes that all existing employees must get the notice within a month of the Bill coming into operation. Since the Committee Stage discussion on this section I have given much consideration to this amendment. I had the necessary inquiries made with regard to the experience in England under their 1963 Act and I am assured that this involves a mass of paperwork that would inflict tremendous difficulties and burdens on the employer.
We must regard the employer as an important party to the whole question of employment and, in the interest of good relations, now and again we should think of his difficulties. Nowadays the employer has a lot of documentation and regulations with which he has to conform. We should not add to this, particularly since it is laid down that any employee must get notice of his terms of employment when he asks for it.
We had tentatively decided to furnish three months' notice to the FUE and such other organised bodies and to have advertisements inserted in the national Press, in the same way giving notice to all concerned that this was now law and pointing to the main provisions, of which this is the main one. That would enable the load to fall more easily on the employer, to enable him to give to all his employees within a month a notice of their terms of employment. There are penalties for failing to comply, but we must have some regard for the employer. There is nothing sacrosanct about the decision that we have taken but at the moment our intention is to give three months' notice, to have Press notices inserted, to promulgate in any way necessary or possible the terms of the Bill that is coming into force and particularly by giving notice to the organised employer side as to their duties and requirements under this Bill. The Senator should not press this amendment.
Is the Senator withdrawing the amendment?
Yes.
Amendment, by leave, withdrawn.
I move amendment No. 6:
In page 5, line 30, before "fails" to insert "wilfully".
The general description of this amendment and the two that follow, particularly the one that has been ruled out of order, is that they were designed to deal at once with the innocent but mistaken employer, to save him from harm through innocent mistakes and also to deal properly with the stubborn employer who is not innocent.
This amendment is concerned to save the employer who could be found, under the section as it stands, to have committed an offence for failing to comply with a notice or, in a case of a commencement of work after the coming into operation of the Act, failing to give the prescribed particulars, a failure which might be due to inadvertence, absence on holidays or due to sickness, or the neglect of somebody to whom he delegated the duty, but no one of which circumstances would be, under the language of the section as I understand it, a defence which would avoid a conviction. This might be very bad for the reputation of the employer as an employer and in relation to his general credibility.
The possibilities of "knowingly" or "without reasonable excuse" or in "relation to the type of failure that it was a fault in a material particular," were considered by me as alternative amendments. I decided that I would recommend to the House the word "wilfully".
Mr. J. Brennan
This amendment would provide that only an employer who had wilfully failed to comply with the requirement under section 9 to furnish a statement of employment terms would be guilty of an offence under this section. The amendment would place the onus on the Minister to prove that the failure to comply was wilful and this would certainly not be acceptable to any Minister. I would much prefer to leave the wording as it is.
On the Committee Stage debate a question was raised about the £25 penalty—it is not to exceed £25 and need not be £25—which might be imposed. If an employer innocently failed to comply with this regulation I could not see any Minister prosecuting him. We have many examples of this in legislation. On the other hand, if a prosecution did take place it is open to the district justice to impose a nominal fine or to apply the Probation Act, as is usual. The one objection I would have is that it would put the Minister in the position of proving what was wilful and what was not. I think the present wording should stand.
Although we are not in Committee, the Minister is a very agreeable man and I imagine it may be possible for him, with the consent of the House, to offer an alternative to the amendment which is suggested on Report which will not involve a shifting of the onus of proof of the wilfulness of the matter but would leave a ground of defence to the defendant if he could prove—and there is no provision for him to prove—that his failure was with reasonable excuse. Perhaps the Cathaoirleach could guide me, seeing that the Minister was of a mind to accept an amendment to which the objection he has voiced regarding shifting the onus of proof would not apply, as to whether, if he were prepared to accept the interpretation of the words "without reasonable excuse" instead of "wilfully", the House would be able to agree to accept that substitution?
If I may emphasise the importance of this point, it would mean that men who like to behave themselves under the law would be able to persuade the court without being convicted of guilt. It would not require the Minister or the prosecutor to prove anything. It would be for the defendant to prove that he has reasonable excuse in the circumstances of his case. It would not depend upon the goodwill of the Minister administering the legislation at the time—he could be having the devil of a row with the employer on anything——
It depends more on the good sense of the Minister.
——and the defendant would be able to establish to the court that he had a reasonable excuse and that he ought not to be found guilty. It might reflect to his credit and to his ability to look after his employees generally. I do not know if the House would accept the substitution of the words "without reasonable excuse" for "wilfully" and I place myself in the hands of the Chair.
It seems to me in general, without anything being done to this particular amendment, that the principle of introducing the word "wilfully" in a section of this kind is a very dangerous one because there are 1001——
I was proposing a substitute amendment.
——sections which say that if the person does something or does not do something he shall be guilty of an offence. If you are going to insist that "wilfully" has to be in front of every one of them it is introducing a very dangerous principle. If the court or the Minister, in the circumstances of the case, realises that it was not wilful the prosecution either will not go on or the court will not find that an offence was committed. To introduce the word "wilful" is, in my opinion, a dangerous principle and it should be resisted unless a very strong case is argued for it.
I gather that Senator FitzGerald's second intervention was regarded as putting a point to the Minister and not as replying to the Report Stage amendment. Presumably, it was on that basis that Senator Ryan spoke and I wish to be allowed to speak to the amendment now. I appreciate the difficulty posed by the Minister and by Senator Ryan in looking on an amendment of this kind as applying generally to offences created under statute, but it largely depends on how you look at it. Obviously, from the point of view of the administration, the Minister and his Department, the neat and tidy thing is to have a clear-cut offence on failure to comply with provisions of an Act. It is so clear-cut that there is virtually no defence and it then rests entirely with the Minister and his Department to decide whether or not a prosecution should be brought.
If Senator Ryan pauses and looks at that situation for a moment he will see how terribly undesirable it may be because there the sole arbiter as to whether or not a prosecution is to be brought in any given case is the political head of the Department. I want to make it absolutely clear—I am presenting this case as an argument for the amendment and in no way on a personal basis—that I am not suggesting that the present Minister or any Minister I can contemplate would deliberately abuse and misuse those powers, but so long as the matter is left on that basis it is open to abuse and it is open to abuse by the political head of a Department exercising his powers on a political basis. It is open to him to decide that in this particular case, because the accused person is a supporter of his political party, he will not bring a prosecution. It is open to him to decide in another case, because the accused person is a supporter of a party opposed to the Minister, that even though the facts of the case may be very much less serious, he will bring a prosecution. That is a consequence that can come from the situation if it is left as it is and if we think only in terms of the danger which Senator Eoin Ryan has warned us against.
On the other hand, I appreciate the argument that it may be putting a burden on the Minister and his Department that it would be extremely difficult for the prosecution to discharge if, when a prosecution is brought under this section, the court should decide that there must be positive proof from the prosecution that the offence was wilfully committed. I could see the possibility that there would be different views as to what would amount, even in the same case, to wilfulness on the part of the defendant. That is the difficulty we are in: there are two sides to this. If we were to leave this section unchanged, I do not believe that the ordinary members of the public would be protected indefinitely against possible abuse of these powers. It was a very worthwhile action of Senator Alexis FitzGerald to put down this amendment and to have this discussion, because this kind of thing appears very often in legislation.
The way out may very well be what Senator Alexis FitzGerald has suggested. If the Minister is reluctant to find himself and his Department in the position where they have to show that the defendant wilfully or knowingly committed an offence by failing to comply with the provisions of section 9 of this Bill, and feels that is too onerous, the solution may be to import somewhere into this section machinery which will say to the court: "Although prima facie an offence is committed by a person who fails to comply with the requirements of section 9, nevertheless if that person satisfies you that the failure on his part was not a wilful failure, that it was not done knowingly, that it was entirely accidental or due to inadvertence, in those circumstances, it is open to you to decide that no offence has in fact been committed and you will be entitled to dismiss the complaint.”
I would be satisfied if a provision such as that were written into this section. It could be done in the manner which is suggested by Senator Alexis FitzGerald and if instead of using the word suggested in his amendment, "wilfully" before the word "fails" in subsection (1) of section 10, we should write in "who without reasonable excuse", or words to that effect, "fails to comply with the provisions of section 9, et cetera”, there would then be a protection. It would not be right for us to assume that it is not possible for a defendant to commit an offence innocently under the section as it is worded at the moment.
This section relates back to section 9 of the Act. All that is necessary is to have a quick look down the provisions of section 9 in order to see the number of cases in which it is not only possible but probable that offences could unwittingly be committed in failing to comply with the provisions of section 9. I agree very strongly with Senator FitzGerald in pleading with the Minister to reconsider this matter and to see if he could meet the point of view expressed by Senator FitzGerald, and which I believe to be a very valid point of view.
It seems to me that we may be getting into the woods here. We are still on amendment No. 6. Section 10 relates to failure to comply. However, if I might refer back to subsection (1) of section 9, it does not specify what is meant by "requiring an employer to furnish". If the arguments being raised by Senator FitzGerald and Senator O'Higgins have validity, the employer ought to have the safeguard of having some means of notifying him. As an employer, I can easily see a situation developing in which somebody is supposed to have told somebody else that he wanted the data under section 9, and that the position would keep on getting tangled up to the point where the Department would be notified that an employer had failed to fulfil the requirements.
I should like to know the Minister's views on that. Where measures of this kind are intended at least to retain the goodwill and support of both the employer and employee—and therefore one is not looking for pinpricking —nevertheless if there is anything in it, it would appear that the amendment would not cover what I am talking about. For instance, "if an employer who fails, having been requested in writing, to comply with ..." might cover the question that has been raised.
Suppose he makes a mistake and gives the wrong date of commencement of employment, it may be an honest mistake regarding the date.
I was thinking of an employer who failed to supply the data.
An employee is entitled to ask particulars regarding the date of commencement. Supposing an employer made an honest mistake and said: "Your employment commenced on 1st January, 1970," when, in fact, it was 1971. That would appear to be in breach of the Act.
I suppose he would be. I cannot see the Minister and his Department going very far with a case like that. An example occurs to me in connection with the Workshops Acts: where there is a failure to carry out any of the requirements, you get a notification from the Department of Industry and Commerce, advising you of your failure to have your premises painted every two years or whatever the requirement might be.
If the Minister can relieve me by saying that his Department would notify an employer of a question raised with them and give the employer a chance to deal with it, rather than become involved in evidence of wilful failure.
Mr. J. Brennan
I appreciate the force of the argument made by the proposer of the amendment and those who support it but we must all agree that this is the fundamental section which ensures that the aims of this legislation will be realised. I am all in favour of not making things too difficult for employers but this is a case in which we cannot modify the phraseology in the Bill in order to provide a defence which can be offered by the defendant in any case. It is open to the defendant to plead that the act was not wilful or that he has a reasonable excuse. I do not think I should write it into the Bill.
It is open to him, but it does not weaken the Act to insert the provision.
Mr. J. Brennan
Let us see what the practical working of this will be. Suppose it is brought to the notice of the Minister that some person did not give notice to his employee of the terms of his employment. This would probably be a case in which the employer has refused to give notice. It is open to the employee to require the employer to give these particulars. The employee knows he has the right to require his employer to furnish him with these particulars. If the employer persists in his refusal then it is rather serious. If it comes to the notice of the Minister that this notice has not been given, as a result of somebody calling to inspect the enforcement of the terms of the Act, and he has a reasonable excuse, he—the Minister —would expect that the employer should give it there and then. This will satisfy any Minister in a case where there is not wilful neglect. If the employer persists in the refusal and finds himself in court he will naturally plead that he has reasonable excuse and it should not be made easier for him by writing it into the Act. Everybody would plead that section if it was made easy by writing it into the Act. In the last analysis the court is the final arbiter. The fine, at the court's discretion, may be nominal or there may be no fine; the fine may not exceed £25 or the Probation Act may be applied.
I should not like to have any watering down of the direct meaning of the section or make it easier for a defence to be prepared for those people who would find themselves in court. Very few people would find themselves in court and those who would would be those who would have refused to comply with the terms since the employee has the right to require the terms to be supplied to him. Much as I do not want to be difficult for employers with this new piece of legislation, this is the crucial point in the whole Bill, the enforceability of the terms. They are not unduly harsh and we should let them stand. I would resist this amendment very strongly.
I would agree with the Minister that the enforceability of this section is crucial. I wonder, even in his description of it, whether it is sufficient that it is the Minister who may prosecute; whether it is realistic to expect that legitimate cases where the employer has failed to provide the terms of notice would come to the notice of the Minister or whether trade unions or other bodies ought not to be empowered to prosecute.
There is no point in pressing something which will not be accepted. It is right to record my view, that the amendment proposed, or the alternative mentioned, is reasonable in regard to the interests of the innocent persons whom the amendment is concerned to save. I am not in any way affected by the view that the Minister would never do such a thing. When I hear that argument I must abstract myself completely from the personality of the Minister in question or from those of the individual advisers to the Minister also. Here we must look at legislation which is capable of being used in a particular way. We have a particular section which can lead to damaging conviction without, as there ought to be, a provision for proper defence against it in the case of innocent mistake or inadvertence. Finally, the structure of the Bill is based on that of similar legislation originating in the UK and the type of amendment proposed is accepted in British legislation.
Amendment, by leave, withdrawn.
In regard to amendment No. 7 which the Cathaoirleach has ruled out of order for the reason given, could I ask that the Bill be recommitted to consider this amendment?
I do not see any point in it. We would have that discussion all over again.
You would hardly have any greater discussion than you had on the last one.
I do not want to exhaust the Leader of the House by a prolongation of this debate but the matter proposed is an important one. Standing Orders provide for a recommital in a situation of this kind. I do not find it in character for the Leader of the House to make the point he has just made.
Was amendment No. 7 not ruled out of order?
The position is that the House may recommit on this if it wishes.
What does that involve, exactly?
First, it can be recommitted and then it can be discussed in Committee.
The very point ruled out of order will be discussed ad nauseam again, is that the point?
It is only out of order, as I understand it, on a technicality.
It has already been discussed.
We have covered it all in the original debate on Committee. Is there anything new which the Senator has to suggest?
If you rule out the recommittal I cannot find anything new to say.
As far as I can see, recommittal means that you start with something which has been ruled out of order and go through the same points made in the original discussion on Committee, for perhaps another two hours.
Perhaps it would help if I were to explain what would happen. It merely means that the amendment, and only the amendment, could be discussed in a way in which discussion takes place in Committee, that is, that Members might speak more than once rather than, because we are in Report, only once. It enables a Committee-type of discussion on the amendment only. Nothing else in the section may be mentioned.
Mr. J. Brennan
I do not know whether I have the right to say anything at this point but I should like to say, if I am in order, that this has already passed through the Dáil and Members were satisfied about the question of continuing offences, that if some person refuses, having already been penalised, he can, of course, again be brought to court for the same offence. This provision can be invoked as often as they refuse.
Acting Chairman
The Minister appears to the Chair to be entering into an argument about the amendment. At the moment all the Chair wishes to know is does the House wish to recommit or not?
Yes.
I do not like the idea of recommitting in regard to this amendment.
Question: "That the Bill be recommitted in respect of amendment No. 7" put and declared lost.
I move amendment No. 8:
In page 5, line 35, after "Minister" to add "and may be prosecuted by no other person than the Minister or the Attorney General or a person authorised by one or either of them."
This could be a contentious proposition not necessarily across the House but even be contentious on the same sides of the House. Having regard to the general intent of the Bill to meddle, in or tease and mess up the relationships between employee and employer it would appear that when drafting this that the right of the common informer should have been cut out. If there is any question of an offence being committed under section 10 the prosecution and defence should light at a decision with the authorities to seek to define them as being the Minister, the Attorney General or somebody authorised by either of them. That is the purpose of it. It is to cut out the operations of the mischief maker who, if he has a particular grudge in his particular situation or who knows of a situation which could be exploited for purposes of demonstrating a grudge, may be able to worsen relations generally between a whole group of employees and their employer.
We had an interesting dissertation by Senator O'Higgins on this section in which he mentioned the possibility that the political head of the Department might exercise his discretion in a political way and that this obviously would be an undesirable thing. Surely as the section stands this will enable some common informer, if he thinks the Minister is abusing his position, to come along and ensure that justice is done? The amendment which has been introduced would protect the Minister of the day if he wished to abuse his position and did not take the action he should take. If Senator O'Higgins is correct in suggesting that in certain circumstances a Minister might fail to do his duty——
Now you are saying it.
——as the Bill stands somebody could step in and make sure that justice was done but this amendment would prevent that.
May I put this point to Senator Ryan? I was glad to note that I succeeded in converting him to my point of view in relation to the second last amendment, unfortunately too late. If his intervention had come during the discussion on amendment No. 6 it might have assisted Senator Alexis FitzGerald and myself in convincing the Minister that our arguments were correct. Senator Ryan champions the position of the common informer. He wishes to see it preserved under this Bill and he would not for the life of him allow Senator Alexis FitzGerald's amendment to operate because it would remove the possible hand of the common informer out of this Bill. I hope I am not wronging him in my summary of his attitude in relation to it, but he justifies that attitude on the basis that if the Minister endeavours to misuse or misdirect his discretion under section 10 in a particular way by failing to take action when he should, then it would be valuable to have the finger of the common informer in the pie and the common informer could then take action which the Minister failed to do. How does the position of the common informer help any one?
In the other case I mentioned, where you have an imaginary Minister operating the powers conferred on him under section 10, and operating them against an innocent person for political reasons, the fact that you preserve the position of the common informer is not going to protect the innocent person from the action of the Minister in such circumstances. It could have the effect, as Senator Ryan has pointed out, that if you have a Minister who simply refuses to do his duty, who refuses, whether for political or any other reasons, to bring a prosecution when one should be brought, then the intervention of a common informer might produce results.
Senator Alexis FitzGerald's amendment goes further than Senator Ryan appreciates because it has at least the double protection that if the Minister should fall down on the job the Attorney General can still bring a prosecution if the terms of Senator Alexis FitzGerald's amendment are accepted. Senator Alexis FitzGerald has said that this is the kind of discussion which could be contentious. It is not the kind of discussion which should be contentious or controversial in a party political sense; it is a question of what we want in legislation. Do we think it desirable that in a Bill like this there should be room for the common informer? I can conceive quite a number of cases where it could be a valuable protection to the public that the rights of the common informer should be preserved but is it right to preserve them in a Bill of this sort? Would it not invite mischief-making of a sort which could do a great deal of damage in terms of industrial relations? That is the net point which has been posed by Senator FitzGerald in relation to this amendment. It is certainly one which deserves serious consideration.
Mr. J. Brennan
Perhaps I should have spoken earlier on this subsection because the draftsman has advised me that the additional words which are proposed in the amendment are unnecessary. Under the Constitution the Attorney General has a general power to prosecute for offences. The only other person who could prosecute is the one named in the Act—that is, the Minister. The extent to which authorised officers of the Minister or the Attorney General can initiate prosecutions is already regulated in other legislation.
Is the Minister saying Senator Eoin Ryan is wrong?
Mr. J. Brennan
Constitutionally, the section already does what the amendment seeks to do.
I was being helpful to Senator O'Higgins.
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 7, line 4, to add "except in the case where the employee gives to his employer a notice of intention to claim under section 12 of the 1967 Act".
This amendment is designed to deal with the logical problem posed by adopting in this Bill the meaning of "lay-off" contained in the Redundancy Payments Act, 1967. "Lay-off" is defined in the Redundancy Payments Act, 1967 as essentially involving the cessation of employment and then provides that, notwithstanding this, certain consequences will follow unless the employee adopts the provisions of section 12 and gives a counter notice.
Paragraph 3 of the First Schedule, which sets out circumstances determining whether there is continuity of service, states that "lay-off"—which is to have the meaning assigned to it by the Redundancy Payments Act—shall have a meaning which involves cessation of employment and shall not amount to the termination of the employees service. To make the matter clearer, it is proposed to add the words of this amendment to the end of paragraph 3—that a lay-off shall not amount to the termination by an employer of a worker's service and that where there is lay-off, there is continuity of service, notwithstanding the lay-off, except in the case where the employee gives the employer notice of his intention to claim under section 12 of the 1967 Act. It would seem that with the two pieces of legislation working together there ought not then to be anything other than a termination of the employee's services if he has adopted the provisions of section 12.
Mr. J. Brennan
However well intentioned this amendment is, it does not confer any benefit on anyone. The decision as to whether an employee will accept the lay-off rests entirely with him. I may not have made it clear on Committee Stage. It may suit the employee to have his employment terminated. On the other hand, it may suit him better to have it continued. As of now under the Redundancy Payments Act the employee has a right to this. If after a month he considers the lay-off unduly long he may terminate his employment and apply for redundancy payment. This is provided for under the Redundancy Act.
The employee may not qualify for redundancy and may wish to preserve the continuity of his employment which will be necessary at some later stage to qualify him for redundancy. I object to being unduly harsh to employers in regard to lay-off. Lay-offs may turn out to be termination of employment and this may not be due to any fault on the part of the employer. I mentioned the fishing industry in this connection. There are many factories and processing stations at fishing harbours and the duration of employment is regulated by the supply of raw material. There may be three shifts and next month there will be lay-offs and the employer cannot say when they will be re-employed. The lay-off may turn out to be termination and the employees have the right to make it so for the purpose of claiming redundancy.
I am not pressing the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 10:
In page 7, line 14, before "whether" to insert "whether by virtue of a sale or other disposition or by operation of law and".
I will press this one. It is clear that the Minister desires that this legislation should preserve continuity of service when the same employee works for different employers, one continuing on the other in the same trade or business. I suggest that the language used in paragraph 7 of the First Schedule will not achieve what the Minister has in mind.
The word "transfer" means an act by a person living and is an inter vivos operation. It takes effect according to his timing and does not include the passing of a business from him to other persons through a transmission which would arise in the case of his death through the operation of his will taking effect or under the laws of the distribution of the estates of intestates. To achieve the preservation of the rights of continuity in that business of that employee, employed by the series of employers, one receiving the business from the other, it is necessary to include words which take in dispositions which include the type of activity which is greater than a transfer and operation of law. The proposed amendment is to include, before the bracketed words “whether or not such transfer took place before or after the commencement of this Act”, the words “whether by virtue of a sale or other disposition or by operation of law”. The Minister can be given strength to overcome any fear he may have in accepting this amendment if he looks at that very language he will find in subsection (1), section 20 of the 1967 Act. I hope the Minister will be as reasonable about this as he has been in argument about all but in decision about a number of them and will decide to accept this as an improvement to the legislation designed to prevent injustice being done.
Mr. J. Brennan
I am advised by the best legal advice available to me that acceptance of this amendment would have restrictive effect rather than what is intended. The draftsman cannot see any other way by which a transfer of a business can be effected other than by a sale or other disposition of the operation of law. For that reason the amendment seems unnecessary. It would only have a restrictive effect because transfers which have not been effected by virtue of a sale or other disposition or by operation of law will not come within the scope of the paragraph.
There "ain't" any such.
Mr. J. Brennan
Then if there is not there is no need to insert these words.
I do not get the Minister's point. It is the point that the phrase "is transferred" covers the change of ownership no matter how it arises?
Mr. J. Brennan
The amendment proposes that any such transfers that have taken place, "whether by virtue of a sale or other disposition or by operation of law" shall be covered by this provision. I am advised that this would be restrictive and that transfers which have not been effected by virtue of a sale or other disposition or by operation of law, would not come within the scope of this paragraph. In other words, it is less restrictive to leave it as it is. I must accept what I am told by the draftsman and legal advisers on this.
I am genuinely trying to get the viewpoint of the Minister on this. Paragraph (7) of the First Schedule refers to a situation which arises if a trade or business is transferred from one person to another. The amendment seeks to make sure that there is captured in the phrase "is transferred" transfers which arise by virtue of a sale; by virtue of any other disposition; or by virtue of the operation of law.
Mr. J. Brennan
Could the Senator point out any other grade?
What is essential here is to find out if a transfer can take place by means of a disposition other than a sale or if not by a disposition other than a sale then by operation of law which, at the same time, would be outside the phrase "is transferred" as used in paragraph (7).
It is open to the Minister to argue that the phrase "is transferred" is comprehensive and covers everything that paragraph (7) means that once the transfer has taken place, however it has come about, the trade or business is transferred in the sense that it has been transferred. Senator FitzGerald is putting a point of view which to my mind requires examination that the phrase "is transferred" would, to most lawyers, indicate that something active has taken place by means of a deed of transfer, that it has been signed, sealed and delivered and transferred in that sense.
We know that changes in the ownership of a trade or business can take place otherwise than by a transfer in the restricted sense of a deed of sale or transfer having taken place. We know that a change of ownership can take place, for example, on the death of an owner where others succeed to his interest in the trade or business. We know that a change of ownership can take place on death whether the owner has died intestate or whether the disposition is as a result of his will. That is a way in which a change of ownership or transfer by operation of law can take place which would not be covered in the generally accepted meaning of the phrase "is transferred". This would arise in a different category and the result would be the same. The change of ownership would have taken place. A change of ownership can take place by a sale or by another disposition such as a will. Senator FitzGerald is trying to ensure that that will be captured. The amendment would not weaken paragraph (7) of the First Schedule, all it would do would be to strengthen it. This point requires some thought by the Minister.
There are other ways, by virtue of operation of law, by which a transfer could take place which is outside the scope of the normal ones which would occur to any of us such as a transfer on a voluntary basis from a father to a son, or a transfer by sale from one owner to another, or a transfer following a person's death whether by will or intestacy—I have not thought this through, perhaps Senator FitzGerald has—the putting in of a receiver by trade creditors could operate an effective transfer of a business, certainly from one management to another, during the period of the liquidation. These are open to doubt if the Minister allows paragraph 7 to remain as it is. I do not think it would be open to doubt under Senator FitzGerald's amendment.
Mr. J. Brennan
In a recent Committee Stage debate——
Acting Chairman
The Minister has already spoken. Does the Minister want to re-commit the Bill?
Mr. J. Brennan
On a point of order, I want to elaborate on something I have already said.
Acting Chairman
It would be interesting to hear the point of order.
Mr. J. Brennan
The last speaker made the case for my section without amendment because what the amendment seeks to do is to clarify——
Undoubtedly Senator FitzGerald will want to reply.
Mr. J. Brennan
What the amendment seeks to do is to clarify it. The draftsman advises me that he cannot see the property passing in any way other than that mentioned in the words proposed to be inserted. If there are other ways then this is respecting the transfers without a term.
By way of reply, transfer does not include transmission; transfer does not include the passing of property by operation of law; transfer does not include the vesting in an official assignee in bankruptcy of the trade or business; transfer does not include the effects of the court order vesting in a committee a person of unsound mind; transfer does not include the methods where there is a change in the ownership or a change in the conduct of the business. The words which I propose could not subtract from the meaning of the words "the transfer".
Amendment put and declared lost.
Bill, as amended, received for final consideration.
Question proposed: "That the Bill do now pass."
I should like to ask the Minister whether he would agree that this is a minimal Bill in that it does not contain the provision for compensation for unfair dismissal which already prevails, in one form or another, in the other eight countries of the EEC. When we have to allow for free movement of workers and when people are coming from other countries of the Community to work here, will they not be entitled to compensation for unfair dismissal in the same terms as they would have in their own countries? I am thinking of the provisions in the Industrial Relations Act in England where there can be compensation up to £4,000 for unfair dismissal. Does the Minister contemplate bringing in legislation to provide for compensation for unfair dismissal?
Mr. J. Brennan
What may be necessary, in relation to harmonisation of our laws, I cannot say now. This Bill does the minimum. It is very obvious that we are conscious of that because all through the Bill the Minister takes powers to make by order the necessary adjustments without having to introduce amending legislation. This will enable us, in many ways, to conform to what may be necessary under EEC legislation, but I am not going to say that the question of unfair dismissals legislation is something that would be required to be introduced in order to have harmonisation of legislation with EEC countries.
Unfair dismissal is covered, I understand, by common law here. Indeed it has been prosecuted in courts many times. Whether it should be specifically related to particular legislation I do not know. I am not so sure that Senator Robinson's reference to British legislation is one which we should rush in to imitate at the moment. Any legislation which impinges on the sensitive area of industrial relations requires a good deal of thought and study. It is a matter of having the opinion of three sides; consultation with the social partners and, of course, the Government as a third party would have to precede the bringing in of legislation of that kind. This is very important particularly in the context of harmonisation of the legislation of the EEC. I certainly would not try to expound on that, nor would I claim to be competent to do so.
The Bill has received very fair treatment in the House. Many technical points have been contested. Some of them have been rather academic but resulted in very useful discussions. I think both sides of the House have accepted that the spirit of the legislation is to improve, rather than to disimprove, the conditions of workers generally. We must have recourse to the importance of the employer in all legislation too. He has a very important part to play and sometimes we are inclined to think entirely of what we are doing for the worker without having regard to the person who employs him and who creates the employment and, I would hope, ensures the necessary good relations from which only good employment can spring.
I am very happy with the passage of the Bill, both on Committee Stage and on Report Stage. The debate will be of particular assistance to us in the Department of Labour in relation to any future amendment which the Bill may require by way of regulation.
Question put and agreed to.
Bill to be returned to the Dáil with amendment.