Hours of Work Bill, 1984: Committee and Final Stages.
Section 1 agreed to.
I move amendment No. 1:
In page 4, subsection (2), lines 6 to 17, to delete paragraph (b).
I propose to make a brief reference to the justification for the amendment. This exclusion relates to close relatives employed in the common home. However, a conflict could arise where other workers employed by the close relative are subject to restrictions, while the close relative can work unrestricted hours. This is a situation which can develop quite easily. Employees who are close relatives but covered for the purposes of social insurance should, in my view, be covered by this Bill. This is by way of being a trip down the Amazon for me. When I looked at the number of amendments to this Bill I concluded, with some accuracy, that I am eligible for the Guinness Book of Records. I am not sure what the procedures are, whether we take them section by section, or if there is some other formality, but I will be advised by you in that connection.
The purpose of this amendment, as Senator Kirwan has pointed out, is to bring within the scope of the Bill close relatives who are members of the same household as their employer and whose place of employment is the common home of themselves and their employer. Senator Kirwan will be perhaps better aware than most, and certainly as well aware as any, that the all but universal practice in protective legislation is to exclude such people. That is the practice here, and it is a practice that is followed in other jurisdictions also. If Senators consider the matter, I think they will agree there are good reasons why that should be so. The starting point for any protective legislation is that there is a contract of employment, the parties to it being the employer and the employee, and that that contract is the result of negotiation, whether individual or as a result of collective bargaining. The legislation intervenes to set down a floor of rights, always with the understanding that it is open to the parties to negotiate to improve their position. If Senators consider the matter they will agree that that concept does not apply to close relatives, and that the notion of close relatives setting out to create legal relations in that fashion does not properly apply. In the case of close relatives their working arrangements are likely to be much more informal than would be the norm. In those circumstances, the amendment would constitute an unwarranted interference into the domestic sphere, and for that reason I would be opposed to it.
The Minister misses the point. What I have been describing is a situation in which a close relative of the employer is under a contract of employment, he is working for a weekly wage alongside a man who is not a relative of the employer but who is in receipt of the same weekly wage. The effect of these exemptions can produce a situation that simply because of a blood relationship one man can work unrestricted hours and the other man, doing precisely the same job for precisely the same remuneration, is deprived of that right by legislation. In effect, that is going to create an enormous amount of conflict in the field of industrial relations, and the Minister knows this. I am aware that there are various practices, but I have learned in my long years of dealing with matters of this type that nothing is immutable. If I do not change it there are a number of employers who will. What we are seeking here is a recognition that within the parameters of this Bill there will be a clear knowledge of the difficulties that will arise where close relatives are employed on a contract of employment and in receipt of the same remuneration as those working alongside them who have not got that blood relationship. This is something which must be taken into account.
If one considers perhaps a small retail outlet, I think Senators will accept that there is a difference in the way in which the two employees will regard their status and the way in which they will approach their task. In one instance somebody has a relationship which is at arm's length with his employer, in another there is a blood kinship which means that they are bound to approach their relationship in a different way. People who are bound together by that close blood relationship would regard it as inappropriate that we as legislators should tell them how to conduct their affairs. For that reason I repeat my view that the amendment should not be supported.
I have known in my personal experience the most difficult and militant shop stewards in any employment to be directly related to the employer. I am glad to see that the Minister accepts that as an illustration of the realities. When I refer to a blood kinship I am not referring to this self-evident relationship or to the instinctive family devotion one would have to the other — that does not exist in many cases — but in terms of pure legislation the provisions in this Bill can create a situation where despite the relationship between one and the employer both are in receipt of the same wages but only one is operating without restriction. I emphasise that from my perspective that can create enormous difficulties for me and for people like me.
Question, "That the words proposed to be deleted stand" put and declared carried.
Amendment declared lost.
Amendment No. 2 is an alternative to No. 3 so both may be discussed together.
I move amendment No. 2:
In page 4, subsection (2), lines 18 to 23, to delete paragraph (c), and substitute the following:—
"(c) workers covered by the EEC Transport Regulations".
With regard to subsection (2) (c), as the Bill now stands this paragraph excludes only workers employed by hauliers and carriers. The exclusion does not extend to cover transport workers engaged in own-account transport for firms who have their own haulage facilities. Examples of such firms are Guinness and Irish Distillers. The Bill also brings within its scope own-account haulage for those firms who engage in the international transport of their own goods. All such transport is already covered by the EEC social legislation on road transport, specifically Regulation 543/69/EEC as amended. These EEC regulations are currently being reviewed, proposals for their amendment having been published recently, which would further restrict drivers' hours. I am putting it to the Minister that one set of legislation is sufficient to cover all drivers whose hours are regulated under other measures. To have two sets of legislation in operation at the same time would obviously cause confusion.
In making own-account operators subject to the Hours of Work Bill while excluding hauliers we would be placing own-account transport at a severe competitive disadvantage.
This exemption excludes the entire transport sector and the ancillary services within the transport sector. It is possible under this exemption that some workers previously governed by the 1936 Act will now be excluded. For example, those engaged in the manufacturing of component parts for air or rail transport. I have in mind the Inchicore works or the old Potez factory which is now being used by Aer Lingus. There is no justification for including the entire sector. I have some experience of EEC regulations as they emerged. The first one that comes to mind was 543/69/EEC which regulated working hours in the transport industry and the subsequent regulation which came out in respect of tachographs. Despite all the protestations from the trade union movement we were told by the then administration that this was a Brussels regulation and had to be duplicated by a domestic regulation. We are saying here that the exclusion within this section should be restricted to those covered by the European Economic Community Transport Regulations.
Perhaps it would be helpful if I clarified everybody's thinking on exactly what the purpose of each of the amendments would be, what the effect would be and then indicate why the particular attitude taken in the Bill has been taken.
Senator Kirwan's amendment would have the effect of excluding drivers who are covered by the EEC Transport Regulations and including in the Bill all other workers in the transport sector. Senator Hillery's amendment proposes to delete the words:
workers employed in an undertaking which is primarily engaged in the transport of persons or goods
and to substitute:
workers primarily employed in the transport of persons or goods and whose employment is covered by the EEC social legislation on road transport.
That amendment is also aimed at excluding drivers who are covered by the EEC transport regulations but would include other workers employed in undertakings primarily engaged in transport. It does not, unlike Senator Kirwan's amendment, include workers employed in undertakings primarily engaged in the provision of ancillary services or facilities necessary for the transport of persons or goods who are also excluded by this subsection. Why was that attitude taken in relation to transport in drafting this Bill? It was not taken lightly, it was taken because it was recognised, both Senators who have moved amendments recognise also, that there are very particular circumstances that apply to the transport industry, the fact that circumstances there can vary and fluctuate so dramatically and that the demand for workers is likely to vary and fluctuate likewise — workers to be available at any given time because of periods of peak demand, slack periods and so on, the fact that it is quite difficult to predict the requirements for overhaul of vehicles, ships and aeroplanes, the fact that weather conditions can so significantly influence the needs of the transport industry and the requirement at any given time for particular people to be available. We are all agreed that there are particular problems that need to be addressed.
The Bill does so by excluding undertakings primarily engaged in the transport industry. Senators Hillery and Kirwan seek to delimit that exclusion. I understand and in part sympathise with the attempt that is being made, but the attempt is likely to present more difficulties than it would solve. It is not possible to say that the only people who are likely to be experiencing difficulties are the actual drivers, the people covered by the EEC regulations as suggested by Senator Kirwan or the people covered by the EEC social legislation, to use Senator Hillery's phrase. Clearly there are other people who may be involved. If it is a question, for example, of a repair contract for Aer Lingus which is a very lucrative part of their business, that is something that might come up unexpectedly and they must have the flexibility to respond. If they are not they could be put a serious disadvantage vis-á-vis their competitors. As against that, I think all of us would accept that there are people involved in the transport undertakings whom we would wish to see included but when you get to the stage of trying to identify those people and to define them, the complexities of doing so would open up so many loopholes and produce such confusion and so many complications in the Bill that the effect of doing so might be counter productive. That is why the approach taken in the Bill in excluding firms primarily engaged in transport is the proper one.
I would remind Senators of two things. I remind them first that it is open to employees and employers in an undertaking that is not covered by this Bill to come together, negotiate and agree rights comparable to those provided by this Bill or for that matter to agree terms that would be more generous than those provided by this Bill. Secondly, I would say to them that the Minister is given power later in the Bill to include by regulation categories of workers who would otherwise be excluded. It is certainly the case that if the Bill is passed by both Houses we will look carefully at the possibility of using the ministerial powers to make orders to include categories of workers who would otherwise be excluded in this area. That greater flexibility and the possibility of homing in more closely on the target groups of workers offer the best option. For that reason I would not be in favour of either of the amendments.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 3 not moved.
Amendment No. 4 is an alternative to No. 5 so both amendments may be taken together.
I move amendment No. 4:
In page 4, subsection (2), line 25, to delete paragraph (e).
I take the view that the exclusion of doctors, nurses and paramedical staff is contrary to the interests of the employees and of those in receipt of medical care. It would appear unacceptable that workers providing services in such a crucial area could be required to work hours in excess of the normal hours, thus having the effect possibly of putting patients at risk. This has been a constant cause of concern to the unions who down through the years have been representing these workers. For these reasons the exclusion should be deleted.
To amplify that slightly, I want to make the point that this Bill is designed to facilitate the employment of people. To some extent it could be described as a partial panacea for the horrendous unemployment with which we are faced. There are more people unemployed than there are employed in manufacturing industries. The highest degree of overtime— I am subject to correction on this — is in the transport industry. Because of the flexibility, the volatile nature of the occupation and the demands made upon it, this industry lends itself to work in excess of the standard day. In regard to this section the exclusion of doctors, nurses and paramedical staff would in my view, and certainly in the view expressed to the Minister by the Irish Congress of Trade Unions, be most unacceptable and therefore should be deleted.
I sympathise with Senator Kirwan's point about the danger of excessive hours being worked by medical and paramedical people, given the nature of their task. However, as I recall, the Minister at Second Stage highlighted the emergencies that can occur during the practice of these professions. On balance I would have to go along with his view. I mentioned at Second Stage that I thought there was scope for work sharing which obviously is related to this Bill, especially among married female doctors and nurses, many of whom would wish to work half time, who are already in these professions, and others who are full-time housewives and mothers who might wish to work half time at these professions. There is certainly scope for work sharing there.
In supporting the provision as it now stands, for completeness sake the omission of certain ancillary staff who pose problems, for instance, for the operation of a hospital, is a serious omission. Therefore I recommend that provision be made for hospital porters and essential technical staff who would be necessary to the continued efficient operation of a hospital.
In regard to the point made by Senator Kirwan, at all stages in considering this Bill we have to draw a distinction between what we hope will be the norm on the ground and what the minimum standard demanded by legislation is to be. In any case where people are excluded that simply means that they are not automatically regulated by this legislation. It is of course open to them by agreement to organise their work practices so that they conform to the standards set by this legislation or indeed, as I mentioned in an earlier amendment, to go further than that. Similarily when later on in the Bill we come to consider the appropriate number of hours what we are setting as a norm, a minimum standard below which people cannot fall, it is again open to people to do better for themselves by negotiation and by agreement.
When we come to consider what is to be the position in relation to doctors, nurses, paramedical staff and ambulance personnel the fact that we propose to exclude them from the Bill does not mean that we suggest they work hours longer than those tolerated in the Bill. It does not say that at all. What it says is that for particular reasons it is inappropriate to lay down hard and fast rules in legislation that will be there for all time, at least it will be there until the Houses of the Oireachtas choose to amend them. For the reasons I indicated at Second Stage and which have been recalled by Senator Hillery, it seems to me inappropriate that people in these categories should be included. These are emergency services, areas where all sorts of unforeseen emergency situations could arise, unforeseen emergency situations that could perhaps involve questions, quite literally, of life and death. It also raises ethical questions, the obligation on a doctor, for example, to treat a patient who is sick or in pain and the possibility in the amendment moved by Senator Kirwan to be exacted of a conflict arising between the doctor's ethical obligations and his obligations under this legislation.
The amendment cannot be accepted. We must exclude these particular categories, but that is not to say that there is not scope within the medical area for people to bring their work back in line with the norms established. It is not to say that there is not an opportunity for work sharing.
Senator Hillery has twice made the point that there is scope here, and I have to say that my personal view is that there is very considerable scope. On the basis of personal contacts and anecdotal evidence I believe there is interest in this possibility among people working in the general medical area.
With regard to the amendment in the name of Senator Hillery, my first reaction is that the amendment as drafted would have the effect of excluding all sorts of people and would possibly have the effect of excluding people beyond those whom we would wish to see excluded. If Senator Hillery would like to develop his arguments and indicate the categories of workers he feels might be involved it might be that he can persuade me at this stage that the amendment would cover them and them only or, alternatively, I am quite prepared to go away and have another go at drafting an amendment to give effect to the spirit of what Senator Hillery is moving.
I have mentioned specifically porters and essential technical staff, but I am not in a position to cover the entire scope of personnel who would come under this. If the Minister were open to persuasion on this he might avail of the opportunity between now and the Bill going to the Dáil to examine the auxiliary staff who would fall into this category and who might logically be excluded.
I will certainly do that. I accept there is a point there in that there may be people whom we have not covered, but on the other hand we have no desire by putting in an all embracing phrase to exclude people who should properly be included. On the basis of the point put by Senator Hillery we will have further discussions with the help of the authorities and try to identify groups of workers who might fall into this category. If there are such people the matter can be attended to in the Dáil and be brought back for consideration later.
The Minister, with some assistance, continues to refer to the desirability of establishing norms with minimum requirements. He talks also about making provision for emergencies. That is a contradiction in terms. If we take an ambulance driver who is working an eight-hour shift and who, having completed seven hours, receives notice that there has been a major traffic accident and that there is a substantial number of casualties, he has to leave for the scene of the accident and that may result in his working a substantial amount of overtime. The ideal situation that should be provided for within the Bill, which has enshrined in its objectives the creation of further employment, would be that there should be a limit on the type of work that an ambulance driver would have to do in terms of hours but that concomitant with this there should be the provision of extra cover.
It is not enough for the Minister to say that if in the working of the Bill it is discovered that there are certain anomalies or certain injustices which must be corrected, those within the grades are at liberty to come back and seek to have the situation redressed. It has been pointed out to the Minister, not by any one specific trade union but by the body representing all the trade unions that there is a need to accept the amendment before the House. We all know, even if it is only through the media of the "carry-on" films, what young interns have to put up with in terms of working hours. If I ever have to go to hospital I would want some form of assurance that some 26- or 27-year old who has been working non-stop for 36 hours is not going to do the job on me. It is all right for the legislative people to provide for norms, to provide for the basic requirements, but there has got to be an open-handedness about the ministry in respect of information given to him by central authorities based on experience.
On a point of information, I can see that the ICTU gave careful consideration to this amendment but I wonder if the medical and nursing unions have made representations to the Minister.
My clear recollection is that we have had no specific representations from either of the unions mentioned by Senator Hillery.
Perhaps they did it through the ICTU.
That is what is known as an axiomatic question.
We had lengthy discussions with the Irish Congress of Trade Unions. I repeat that nobody is setting it forward as being desirable that people in any of these areas should work long hours, that they should as a matter of course work in conditions less favourable than those prescribed by the Bill. Let us contemplate some extreme situations which hopefully will never arise but which could arise. Let us contemplate the possiblity of a serious epidemic or a situation in which this city or any other part of the country was to be the subject of a sustained bombing campaign over a period of weeks or months with resultant heavy casualties imposing considerable strain on medical personnel. It would be inappropriate if the legislation set up a conflict between people's obligations— their professional obligation to respond to that emergency, their human and Christian obligation to respond to that emergency, and their obligation under the legislation. That is why it is inappropriate to include these categories within the Bill.
The Minister has drawn a very long bow. If I did not know his name I would call him Robin Hood. If we are subjected to a sustained bombardment — I can only assume that given the period of history it will be a nuclear or thermo-nuclear one — neither the Minister nor I will be debating the amendments to this Bill.
Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.
Amendment No. 5 not moved.
I move amendment No. 6:
In page 4, subsection (2) (f), line 26, after "caretakers" to add "and residential staff in residential homes and institutions primarily engaged in the care of children, the elderly and the infirm."
This exclusion should extend to cover workers employed in the care of children, the elderly or the infirm in residential homes who would not come within the definition of doctors, nurses or paramedical staff in paragraph (e), for the same reasons as the medical and paramedical people are already excluded.
I have indicated already that I will look at the whole medical area again. I do not want to whittle that commitment down at this stage but it seems to me in this area of residential staff there is a distinction to be drawn between the category that we propose to exclude as caretaker and the other categories mentioned by Senator Hillery. The onus and the requirement on the caretaker is to be on duty 24 hours a day, that when they are at the place they are taking care of they are on duty and are performing the task for which they are paid. In the case of the residential employees to whom Senator Hillery is referring the situation would be different in that such employees would have specific duties that they were required to carry out, that they would carry them out between specified hours and that at the expiry of that period they would typically have a period of time off. For that reason their situation is much more akin to that of the general employee, and so at this stage my attitude would be that they are properly within the Bill and that it is proper to draw a distinction between the very special circumstances that exist in relation to a residential caretaker who is in effect, on duty 24 hours a day and everybody else. But as I have already said, I will look at this whole medical area again.
Amendment No. 4 is a simple deletion of paragraph (e). Nevertheless the Minister told Senator Hillery that he would give further consideration to his amendment No. 5. I want to be clear about this. Did amendment No. 5 fall when amendment No. 4 was carried?
It was not moved. Is amendment No. 6 withdrawn?
In the light of the Minister's undertaking I am prepared to withdraw it.
Amendment, by leave, withdrawn.
Section 2 agreed to.
Section 3 agreed to.
Amendments Nos. 7, 8 and 10 are related and may be taken together.
I move amendment No. 7:
In page 5, subsection (1) (a), line 16, to delete "40" and substitute "35".
Section 4 deals with the weekly limit of 40 hours, and I propose now to deal with section 4 (1), paragraph (a), section 4 (1), paragraph (b), section 4 (2), paragraph (a). The amendments proposed under this section are aimed at introducing a real reduction in normal working hours. The present proposal to limit normal working hours at 40 is too limited to have any impact whatsoever on the employment situation. In fact, legislation proposing a 40 hour normal week in a situation where it is already known that almost to the point of exclusivity workers work 40 hours or less will have no impact whatever in creating employment. Most of us know that there is no worker, certainly that I can think of at this time, who works in excess of 40 hours, and a great many of them work less than 40 hours per week. But the Bill insists, as legislators traditionally do, in establishing what the Minister described earlier as the norm, and the norm never bears any relationship to reality, on 40 hours. As it is structured at present the Bill will have no impact on creating employment. Therefore, I recommend that this Bill should provide for a maximum normal working week of 35 hours and point out, I hope with some accuracy, that this is in line with the trends in other EEC countries to reduce weekly working hours below the level of 40. Are these amendments being taken together?
We are taking amendments Nos. 7, 8 and 10 together.
Amendment No. 8 covers the position of the majority of workers who work less than 40 hours per week and is aimed at restricting overtime work by calculating the overtime by reference to the normal weekly hours of these workers. That is self-evident or maybe I have been so long in the trade union movement that I think everybody understands the type of language we use, but putting it in simple terms, we want overtime calculated on the actual hours worked.
I have put down a new section, which I would describe as section 4 (3) and this section in all the circumstances is essential. In fact, the Minister may correct me if I am wrong, but I believe this was contained in the original proposals to ensure that the legislation can be brought into line with developments in reduction of working hours without the necessity to introduce an amendment to this Bill. The most effective way of doing this is by way of ministerial order, and this is what the amendment proposes.
Have you dealt with the three amendments together?
I have dealt with the three of them together.
The net effect of these three amendments, which boil down to inviting the Seanad to delete one figure, the figure 40, and substitute for it another figure, the figure 35, is to invite the Seanad to reduce the normal working week from the maximum of 40 hours which is provided at the moment in the Bill to a maximum of 35 hours. I cannot accept these amendments. When I spoke last week on Second Stage I made the point that this was an area where one had to tread carefully and to tread slowly, that if one did not move with sufficient boldness then the hoped-for beneficial effects in relation to employment would not be achieved but that if one moved too far or if one moved too fast then the measure could be entirely counterproductive and could, in fact, have a detrimental effect on our capacity to increase employment or indeed to maintain even existing levels of employment. It seems that it would be quite inappropriate in legislation at this stage to reduce the normal working week below 40 hours, and I put forward a number of reasons why I suggest that that is so. To do so here by legislation without considering the individual circumstances of individual undertakings could have the effect—and I suggest in all probability would have the effect — of substantially increasing labour costs unless of course there was compensation in the form of increased productivity. Any such increase in labour costs would adversely affect competitiveness at home, in European markets and in international markets. I do not believe that a time of recession such as this is the appropriate time, by legislation, to effect such a radical reduction in the working week in the belief that such a move, instead of creating employment, could actually have the opposite effect. That is not to say that there may not be room for reductions of the working week in particular enterprises or in particular industries. Of course it is open to employers and employees to sit down and in the normal manner of free collective bargaining negotiate shorter working weeks. As I have said more than once this afternoon, all this Bill does is lay down the maximum normal working week. It is open to workers and employers to improve upon that if they so wish.
On a factual point, it was suggested by Senator Kirwan that bringing it down to 35 hours would bring us in line with developments in Europe. I do not exactly quote him but I think that is a fair paraphrase of what he said. In fact, I have to say that I do not think that that is right. The statutory normal working week in most western European countries is 40 hours or higher. The exception to that is France where it is 39 hours. It is of course true, as Senator Kirwan will be aware, that in a number of countries the trade union movement has lobbied energetically to reduce from 40 hours to 35 hours, but to date without success.
The nub of the matter here is whether we are talking about a reduction in the normal working week to 35 hours for the same pay rates as obtain for the 40 hour week. Perhaps Senator Kirwan would comment on that. It is true that the French Government are pledged to a 35 hour working week. It is equally true that the Irish Congress of Trade Unions are committed to seeking the 35 hour week in this country. In the context of the primary aim of this Bill, to create jobs, one way to create tens of thousands of jobs is to reduce the working hour week from 40 hours to 35 hours. It is a fact that many people work less than 40 hours at the present time. It is also true, of course, that there are many workers who work the 40 hours standard week.
The Minister makes the point about costs. If we are talking about the same pay rates for a 35 hour week as now obtains for a 40 hour week, then we are talking about a huge increase in labour costs. This obviously would adversely affect our competitiveness. Having said that, I think the Minister and his Department should monitor developments internationally, which they are probably doing in any case. I would like to ask if the Department of Labour has statistics for the labour force on those who work the 40 hour week and less than the 40 hour week at this particular juncture? The 35 hour week is coming in due course, but not yet.
The idea has been floating around for a long time that if the working week is reduced, labour costs will go up. This is not true. First of all it is a "must" that the same amount of money will be paid for 35 hours as they were getting for 40 hours. That does not necessarily put labour costs up. There is a thing called increased production. There is another thing called productivity. In my experience, I have never yet seen a unit of production, whether it be a factory or whatever, which could not increase productivity simultaneously with reducing the working week. I have never seen a unit of production that could not increase productivity and even let the working week stand without reduction. I have never seen it and I have seen the whole work study paraphernalia of trying to introduce efficiency into various plants of all kinds. I give you two examples of something I was directly involved in as a trade union official. In a very large plant employing 600 people in the clothing industry I proposed to a very progressive thinking management that they could actually work a four and a half day week without loss of production. I knew the business, they knew the business. I could use my stop watch, they used their stop watch. They said: "All right, it is a challenge". Not only did production not go down, it actually went up. The new four hours of leisure on a Friday actually put the production up — the idea of getting away for a half day. All I am saying is that any unit of production can increase productivity. That takes care of the myth of increased labour costs. More people can be employed, maybe 5 to 10 per cent, not very much more. The increased productivity can be got out of them as well and that retains and improves the competitive situation. There should be no fears about this. There is no evidence to show that production goes down. If output falls per head and per plant, it means that managment have been enjoying optimum production up to that moment. That is nonsense. There is no company which can claim 100 per cent performance all over the plant. It is more like 95 per cent. When they are faced with a 35 hour week it is quite remarkable how efficiency conscious the top management get, the middle management get, and they begin to use machines and machine power rather than manual labour and all the other things that go for efficiency, promotions and projects inside a plant. I know it is a challenge to the Government. The Government should not be afraid of it. If they are afraid of it, it conveys to me that they have not done their proper research into the beneficial effects which flow from a reduced working week, which will actually increase productivity in my book.
The Minister in dealing with the proposed amendment produces the classic chestnut which is now becoming part of our economic language. I am not going to blame Senator Hillery for it. He merely used it but he came up with this one about competitiveness as if that was the only danger to the fiscal policies and the fiscal state we find ourselves in today. It is fairly well down the totem pole. There are other factors and the Minister is well aware of them. The other factors are quality, marketing etc. Senator McGonagle has just pointed out that there are other ways of meeting the requirements of this amendment. He mentioned the textile trade. He could have expanded further by saying that the low basic rates in the textile trade, when examined against the rates which prevail elsewhere, are horrendous. In fact the earnings are generally brought up to an acceptable level by the introduction of work study schemes which have the effect of improving productivity. Most of the schemes that operate in this State — in fact they are a great deal better than the ones that operate where he worked — provide for a 33? per cent increase on earnings.
If wages were the sole factor in this problem, it constantly amazes me in that high wage economies like Western Germany, Denmark and other members of the European Economic Community have a lower rate of unemployment than we have, despite their high wages. The name of this Bill or at least the objective of this Bill is to make statutory provisions relating to hours of work and overtime for the purpose of facilitating the expansion of employment in the economy. Of course Senator McGonagle was quite right in his reply to Senator Hillery. When we look for a reduction in working hours we look for it at the rate we enjoy. It would be a purposeless exercise to do otherwise, and well he knows it. If he does not know that, I will speak to some of his pupils and somehow reduce the ratio of attendance over the next few years. He knows that well. I want to emphasise the point that if wages were the sole problem in respect of all of these matters, the problems that we have now would be worldwide.
The Minister in his reply did not comment on the amendment in respect of section 4 subsection (1) paragraph (c) which dealt with the method of calculating overtime. Neither did he deal with — unless my hearing is gone — the proposed new section which sought to bring about changes without the necessity of changing the legislation but by handling this matter through a ministerial order, and I would like to hear him on these.
First of all, as to the charge that I did not deal with Amendment No. 9 and Amendment No. 11, that is quite right. I did not. My understanding is that they are not before the House yet and at the moment we are dealing only with Amendments 7, 8 and 10. I will happily deal with amendments 9 and 11 in due course.
In regard to the point made by Senator Kirwan that we are not talking solely about labour costs, of course that is so. There is far more to our capacity to compete than labour costs. There are other costs that industry faces. There is the whole question of quality, of our ability to market and so on. Of course that is so. But we cannot turn our back on the fact that labour costs are relevant and any increase in burdens there have implications for our capacity to compete at home and to compete abroad.
Senator McGonagle takes a slightly different track when he says that there is no necessary implication here for our competitiveness, that any such fear can be overcome because of increased productivity that would stem from a reduction in hours. In his speech he produces some evidence drawn from his very considerable personal experience as a trade union leader to show that that can be so. I am absolutely convinced that he is right, that in some cases that may well be so. Perhaps even in many cases that may be so, but that is a very long way from saying it would be appropriate at a stroke of the pen to change the normal working week from 40 hours to 35 hours so that it would immediately apply in every enterprise across the State, in enterprises that are working at perhaps something very much less than full productivity, in perhaps enterprises that are working at or very close to full productivity.
The situation faced in each of those is quite different and the way in which they respond must be different. It is not proper and not appropriate for us to set down a blanket position that is going to cover everybody not withstanding the fact that they may be in very different situations.
As both Senator Kirwan and Senator McGonagle well know, the negotiation of working hours and measures to improve productivity are an ongoing process. It is the subject of constant discussion between employers and unions. There is nothing whatever in this Bill that will hinder that process. I repeat that what we do in this Bill is we set standards. We say: "This is the minimum standard that is acceptable and beyond this standard you will not go." Of course, it is open to people — and I have said this on perhaps three or four sections already — to sit down and negotiate to do better than is provided for by this Bill. It may well be that if people sit down and negotiate many of them will find themselves in the same position as the industry mentioned by Senator McGonagle that increased its productivity when it gave people Friday afternoons off. Perhaps there are such industries, but if so they must find that out for themselves around the table when engaged in the art and science of collective bargaining. It is not for us to decide it over their heads this afternoon.
Amendment put and declared lost.
Amendment No. 8 not moved.
Amendment No. 8 has already been discussed with amendments Nos. 7 and 10.
I move amendment No. 9:
In page 5, subsection (1), between lines 23 and 24, to insert a new paragraph as follows:—
"(c) In a case where the normal working week is less than the normal working week referred to in paragraph (a) of this subsection, any hours worked in excess of the normal working week in that case, shall constitute overtime for the purposes of this Act and are so referred to in this Act".
That speaks for itself. What we are seeking is that the hours referred to should be regarded as overtime and should be subject to the premium payment negotiated normally at either national, plant or industrial level.
As I said on Second Stage and as I said earlier today this Bill seeks to tread a path. It does so following discussions with the Irish Congress of Trade Unions and the Federated Union of Employers. The end product does not totally satisfy either of them. It seeks to be a negotiated consensus, central to that attempt to hold the rates and to produce legislation that meets the legitimate interests of those with whom we have discussed the Bill. It is an attempt to achieve a degree of flexibility and to strike a balance. A part of that task of allowing a reasonable measure of flexibility and striking a reasonable balance between the attitudes of the social partners is to allow the degree of flexibility that is afforded by saying that the maximum normal working week is 40 hours, notwithstanding that in some cases some people will work less.
I can fully understand that Senator Kirwan will not agree with that. It is no secret that the Irish Congress of Trade Unions would endorse the view that is being taken by Senator Kirwan. But this is not a measure where all the wisdom is on one side. This is a measure where each of the social partners, as well as the Government itself, have legitimate concerns. Our anxiety has been to strike a balance, and that balance has been struck by prescribing 40 hours as the normal working week, and for that reason I cannot accept the amendment.
Amendment, by leave, withdrawn.
Amendment No. 10 not moved.
Amendments Nos. 11 and 17 to be taken together.
I move amendment No. 11:
In page 5, between lines 36 and 37, to insert a new subsection as follows:—
"(3) (a) For the purpose of limiting the normal working week under this Act, the Minister may by order amend subsection (1) of this section. (b) Where the Minister proposes to make an order under this section, a draft of the proposed order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each House.
(c) Where the Minister proposes to make an order under this section he shall consult representatives of employers and workers.
(d) The Minister may by order amend or revoke an order under this section".
We regard this new subsection as being essential. As I said earlier it was already in the original proposals prepared by the Department. It is designed to ensure that the legislation can be brought into line with developments in reduction of working hours generally without the necessity to introduce an amendment to the Act. It suggests that the most effective way of doing this would be by ministerial order. This is what is being proposed. Amendment No. 17, I take it, is in section 5. This is also a proposed new subsection. It is aimed at allowing the Minister to reduce the permitted overtime limits by ministerial order again, and thereby avoiding the necessity to introduce an amendment. To that extent it is very much the same — it makes the same suggestions.
I remember as a law student some years ago studying constitutional law and studying the proper role of the Legislature and the extent to which the Legislature could properly be influenced or directed by ministerial authority. I remember taking a naive view that the function of the Legislature was to impose restraints on what Ministers might get up to. Certainly I never thought I would find myself sitting listening to a debate in which Senators were proposing to give carte balanche to Ministers and in the process deny themselves and deny the Legislature any effective power.
Absolutely essential and at the core of this Bill is the provision that prescribes 40 hours a week as the normal working week. I am flabbergasted at the suggestion that Senators would contemplate giving Ministers over whom they would have no control the power to alter that by regulation. I would have thought that Senators would jealously guard their prerogative, as would Deputies, to ensure that no changes in this area could be made except by the consent of the elected representatives of the people. I would not have the audacity to seek that power on my own behalf or on behalf of any Minister.
I will make two comments to reassure Senator Kirwan that there is no reason why what is passed if the House gives consent to this measure has to be taken as holy writ. I first of all repeat a comment that I made so many times before that it is open to people to negotiate an improvement. I also say that if in two years, three years or four years social conditions have changed so that 40 hours no longer represents the norm, the necessary amending legislation to bring it down to 37 hours, or 35 hours or whatever period might then be regarded as appropriate, would constitute a one section Bill which could be put through this House and the other House in a matter of minutes. That is literally what it would be. It would be a measure requiring the deletion of "40" in the various sections where it appears and the substitution therefor of "37", "35" or whatever was then regarded as the norm. That is the appropriate way to respond. That is the response that allows the legislature to remain in control. Anything else represents an abdication of responsibility on the part of the Legislature in support of Ministerial dominance which would be quite inappropriate.
The Minister has made my day. Over 30 years I have been trying to flabbergast Ministers, and I never thought I would see the day that one would stand up in the Seanad and say that I had succeeded in flabbergasting him. At least I have achieved something in addition to eating my way through these amendments. When we picture the role of the Minister as Wyatt Earp riding into Tombstone we have in mind that he would be accompanied by a posse. There was never any suggestion on the part of the Irish Congress of Trade Unions that whatever about his tendency to be surprised and shocked, they would allow him to ride into the sunset on his own. I am not sure about what the Minister had to say about the one-paragraph Act. I am prepared not to press this amendment.
Amendment, by leave, withdrawn.
Section 4 agreed to.
Amendments Nos. 12 and 13 are similar and can be taken together.
I move amendment No. 12:
In page 5, subsection (1), lines 41 to 43, to delete "40 hours in any period of four consecutive weeks or 100 hours in any period of 12 consecutive weeks" and substitute "8 hours in any week, 28 hours in any period of four consecutive weeks, 72 hours in any period of twelve consecutive weeks or 225 hours in any year".
These amendments as I understand them are aimed at providing for a reduction in overtime work by placing certain limits on permitted overtime. The suggestion here is that these limits should be eight hours in a week, 28 hours in a four week period, 72 hours in a quarter or 225 hours in a year, which goes to show that I have benefited from my brisk Brussels experience in quoting them in this fashion.
The proposals in the Bill will allow for more overtime hours in the yearly period than the original 1936 Act because there there was a limit of 240 hours over a year whereas under the proposals in the Hours of Work Bill it is possible to work, as we estimate it, 400 hours overtime in any one year. Effectively, the amendments seek to provide for a reduction in the overtime work, and to that extent it is consistent with the overall objectives of the Bill itself by providing these standards of permitted overtime.
I will deal first with the suggestion that somehow or other this is more generous or less restrictive, whatever way one would want to put it, than in the 1936 Act. I think Senator Kirwan would accept that he was being slightly disingenuous there, because you cannot ignore the fact that we are talking about total hours, in other words normal hours plus overtime. If you look at that and calculate what the normal hours plus overtime that would have been permitted under the 1936 Act would be, and if you calculate what the total number of hours, the normal hours plus overtime, permitted under the proposed legislation would be, you will see that the two totals represent a substantial reduction in favour of the 1984 Bill.
More generally on the points raised by Senator Kirwan, the net effect of the amendments proposed is to seek to place lower limits on the permitted amount of overtime than were originally provided for in the Bill. He set them out — eight hours in a week, 28 hours in a four week period, 72 hours over 12 weeks and 225 hours in a year. The maximum permissible hours suggested by Senator Kirwan have been put forward in the genuine conviction that by further reducing the maximum amount of overtime more employment could be generated. It is an argument.
As I pointed out in the House last week, and as I hold very strongly this is an area where one has to proceed slowly. The consequences of a very sharp reduction are not fully foreseeable at this stage. The consequences in terms of its effect on productivity, in terms of its effect on the capacity of a company to respond to changing circumstances, in terms of its effect on industrial relations, for example, cannot be foreseen if one were to move as sharply and as inflexibly as suggested by Senator Kirwan. I take the view that many employers and very many employees would take the view that if one were to go as far as is recommended by Senator Kirwan such an approach would be unduly restrictive.
I think one thing would happen in the early days of the Act. We would be faced with a flood of applications for short-term exemptions and permits and so on. The result of that would be that we would find ourselves snowed under and the legislation would never have a chance to get off the ground. We are back to the case that I have been making all afternoon, that this Bill tries to find the middle way, an approach that allows real progress to be achieved towards the objectives behind the Bill, but at the same time not ones that would so unduly inhibit the operation of the Act as to cause problems and do more harm than good. I feel that the very restrictive approach recommended by Senator Kirwan would do just that. It would do more harm than good. It would present problems for industry, some of which cannot be foreseen at this stage.
Most of the defensive arguments produced by the Minister have already been put to the Irish Congress of Trade Unions. I am aware that his primary discipline is that of the law and that his speciality is constitutional law. Whatever it is, he has to accept that my primary discipline without any academic qualification is that of an industrial lawyer. When I tell him that these are not unduly restrictive, he will have to accept to some extent my professional expertise in this matter because all of these arguments were produced initially by the Minister when the Irish Congress of Trade Unions met him.
To get back to the purpose of the Bill, it is to generate employment. That has been admitted by the Minister. There is no doubt that if I were arguing this case for my own union I would be arguing in precisely the same way that Congress argues with the Minister, that the establishment of these levels of permitted overtime are with the objectives of the Bill and certainly consistent with the objectives of the Irish trade union movement to ensure that the almost 250,000 unemployed in some way will be soaked up even if it is only by legislative provision. For that reason and no other reason I am pressing this amendment.
Question, "That the words proposed to be deleted stand", put and agreed to.
Amendment declared lost.
Amendment No. 13 not moved.
Amendments Nos. 14, 15 and 16 will be taken together.
I move amendment No. 14:
In page 6, subsection (3) (a), line 4, to delete "10" and substitute "8".
The amendments as set out are self-evident. They merely seek the deletion of certain figures and their substitution by other figures: in No. 14 the figure ten to eight, in respect of No. 15, five to two, and in respect of No. 16, 100 to 72. These are simple amendments. They stand or fall on the basis of what is the obvious import.
These amendments are consequential on amendments Nos. 12 and 13. The Seanad has taken the view not to accept amendments Nos. 12 and 13, and has more or less committed itself to rejecting Nos. 14, 15 and 16 likewise. The argument is precisely the same. It is a question of where one draws the line. The Seanad in rejecting amendment Nos. 12 and 13 has agreed with me that the line is appropriately drawn at the limit suggested by the Government in the Bill as published.
Precisely what was the end product of the previous exercise? Did the amendment succeed or did it fall?
The amendment has fallen.
Again I do not think it is too much to put this one to the test. It is useful even if it is only a matter of record to find out whether the oil surfaces in the water. To that extent I will push this amendment.
Question, "That the figure proposed to be deleted stand", put and agreed to.
Amendment declared lost.
Amendments Nos. 15 and 16 not moved.
Amendment No. 17 has been discussed.
Amendment No. 17 not moved.
Section 5 agreed to.
Amendments Nos. 18 and 19 are similar and can be taken together.
I move amendment No. 18:
In page 6, subsection (2), line 24, to delete "employed" and substitute "available for work".
I am sure the Minister wants to comment on this one because on the face of it he seems to have met the amendment that I put down. By way of background, I put down the amendment because this provision seems to be clearly intended to provide, inter alia, for periods of absenteeism in a firm. As it is worded at present however, it does not so provide: absent workers remain in the employment of their employer until they resign or are dismissed or, rarely, their contract of employment is frustrated.
I see merit in the argument advanced by Senator Hillery. I accept that the Bill as originally drafted had this lacuna and for that reason the Government put down amendment No. 19 which suggests that in page 6, line 24, after "employed" the words be inserted "and available for work". This meets the point made by Senator Hillery. The reason I am putting forward that amendment rather than simply accepting Senator Hillery's is that the advice available to me which indicates that simply to accept Senator Hillery's amendment would have the effect of including workers available for employment in a district or area but perhaps not employed by the undertaking seeking the overtime permit. That is the interpretation that would be open. My amendment effectively accepts the spirit of Senator Hillery's amendment and represents an improvement in the Bill.
Amendment, by leave, withdrawn.
Government amendment No. 19:
In page 6, line 24, after "employed" to insert "and available for work".
Amendment agreed to.
I move amendment No. 20:
In page 6, subsection (2), line 32, after "permit." to add "The Minister shall, where practicable consult representatives of employers and workers who, in his opinion, are likely to be affected by the granting of the permit".
This amendment is designed to provide for consultation with the unions, where practicable, when it is proposed to grant permits for overtime working in excess of the limits in respect of a particular undertaking. We regard this as being essential in order to safeguard the interests of the workers and avoid the situations where, for example, an employer might request such a permit when he is faced with industrial action. It is not unusual for the trade union movement in that type of situation to ensure that its rear is well protected. We do not want to see an employer being able to utilise the legislation to his advantage and to good effect during an industrial dispute. That is basically the reasoning behind this amendment.
I see strong merit in the argument advanced by Senator Kirwan. I will put the reservations that I have and he may want to come back. It is clearly desirable before a Minister would grant a permit that he should consult with the representatives of employers and workers. I assure the Senators that the Bill will proceed as now drafted. This will be the invariable practice that will be followed by the Minister for Labour, Deputy Quinn, and by myself to the extent that I am involved in the implementation of this section.
I have some qualms and reservations about writing it in. One can conceive of situations when applications might have to be dealt with as a matter of extreme urgency. I accept that that also is in the minds of Senator Kirwan and Congress, because they have attempted to cover this point by including the words "where practicable". My hesitation about accepting the amendment is that to impose the obligation to consult where practicable could be opening up a hornets' nest. The phrase "where practicable" has been litigated more that any other words in the English language or indeed in the Irish language. There are at least two decisions of the courts which have involved very lengthy judgments of the Supreme Court when they considered the difference that exists between those words "where practicable" and the words that are used in the Irish text of the Constitution "sa mhéid gur féidir é". The net effect of it is that I fear that we might end up creating a paradise for lawyers by accepting the amendment.
I assure Senator Kirwan that the invariable practice that will be followed by this administration, and I have no doubt by any conceivable successor, will be to consult in all cases, except in the case of the most extreme and improbable emergency when it might be necessary to respond very quickly to a request.
I accept and welcome the observations of the Minister that this consultation will take place with the trade union movement. I also welcome the advice which I have received for little or nothing to the effect that we should avoid creating a lawyer's paradise. I will not press this amendment.
Amendment, by leave, withdrawn.
Section 6, as amended, agreed to.
I move amendment No. 21:
In page 6, line 36, to delete "50" and substitute "45".
The purpose of this amendment is to focus attention on the exploitation and abuse of young workers which are evident in many areas of employment, for example, in supermarkets and in lounge bars. The Bill proposes to allow a young person between the ages of 16 and 18 to work a normal week of 50 hours. This is totally unacceptable and is another vestigial reminder of Victorian principles and standards and is not very far removed from young children pulling trolleys underground in mines, if one takes into account the change in lifestyles. It should be reduced to at least 45 hours. Its effect is to permit young people to work the same weekly hours as an adult worker. I cannot add to that type of observation. I feel very strongly about this. Whatever strength of advocacy I might marshal up from time to time in respect of adult employment, I do not expect the same degree of resistance from the quarters that I would expect resistance from when we speak in terms of the employment of young people. This is one which I should like to put to the test.
It is not the case, as Senator Kirwan suggests, that the Bill as now drafted would allow people in this position to work longer hours than an adult would work. It would be helpful if I set out the legislative background and the provisions that apply here. Section 7 of the Protection of Young Persons (Employment) Act 1977 provides for normal working hours of 40 per week for a young person over 16 years of age and of 37½ hours per week for a young person under 16 years of age. It also provides that normal working hours may be varied by agreement provided that under any such agreement the number of hours to be worked by a young person in the period specified in the agreement does not exceed an average of 40 hours per week in the case of a young person over 16 or an average of 37½ in the case of a young person under 16 — in effect, that there is no legal limit to the number of normal working hours which may be provided for in an agreement so long as they are within the average limits.
Section 9 of the same Act provides for maximum working hours, that is, normal working hours plus overtime for young persons over 16 years of 45 hours in a week. That section goes on to provide that those maximum hours may be varied by agreement provided that the maximum number of hours to be worked by the young person shall not exceed 172 hours in a period of four consecutive weeks or 2,000 hours in a period of a year. Again, there is no legal limit on the maximum weekly hours which may be provided for in an agreement so long as they are within the general limits referred to.
This section that we are dealing with of the Bill provides that agreements made under the section of the Protection of Young Persons (Employment) Act 1977 referred to will not operate to allow young persons to be employed for more than 50 hours in any week. To this extent it represents an advance. The maximum weekly hours provided for in the Bill are 50, in other words, the normal working week of 40 plus an average of ten hours overtime per week. It is considered that young people should not be allowed to work in excess of this limit.
Senator Kirwan's suggestion of further reducing the working limit presents problems. It may have the effect of creating difficulties for some young people employed in some enterprises. In particular, it is possible that it could create problems for young people employed in the hotel and catering area, to take one example. For any vacancies that will arise, employers are likely to find more applicants than they have vacancies. We need to be careful that we do not incorporate provisions in our legislation which would have the effect of putting young people at a further disadvantage, because of the fact — and this is why we have so many temporary employment schemes like AnCO and so on — that there will be so many applicants at this time for a limited number of vacancies.
An advantage is already given to the person who can claim to have some experience. We need to be careful that we do not hinder the young person seeking to find himself his first foothold in the world of work. I fear that the amendment moved by Senator Kirwan would have that effect. I should like to point out to the Senator again that this represents an advance on the provisions of the 1977 Act which in effect prescribe no legal limit to the number of normal weekly working hours which may be provided for by agreement, so long as they are within the average limits referred to. This Bill goes for the limit of 50 being 40 hours of a normal week and 10 hours overtime. The young people are in no better or no worse position than anybody else.
I am obliged to the Minister for the resume of the legislative process in respect of this section. The difficulty arose in the assessment by the ICTU of a definition of a normal week of 50 working hours. From my side of the hill the Minister has clarified the situation in his reference to the normal week being one of 40 hours, the additional 10 hours being classified as overtime work. On that basis I will not press the amendment.
Amendment, by leave, withdrawn.
Section 7 agreed to.
Sections 8 to 10, inclusive, agreed to.
I move amendment No. 22:
In page 8, line 6, after "overtime." to add "Such arrangements providing for time off in lieu of payment for overtime shall provide for time off at the premium overtime rate".
This is a positive effort to provide arrangements for time off in lieu of payment for overtime and that such time off will be calculated at the premium overtime rate. It is a realistic proposal.
I share the Senator's views. This section is one of the most valuable provisions in the Bill. On Second Stage I told the House that it had been incorporated in the measure following consulation with the Irish Congress of Trade Unions. It provides the option of time off in lieu of overtime. The amendment suggests that the time off should be calculated in a certain way. Just as the rate at which overtime is to be paid can be left to collective bargaining so too can the question of compensation in lieu. Just as the Act does not purport to tell employees and employers at what rate overtime should be paid, taking the view that that is something which they could work out for themselves over the table, so too the precise amount of time off in lieu is something they could work out around the negotiating table.
One could envisage a situation where the period at which the time off was to be taken might vary the attitude taken by the employer or employee. For example, where the normal practice was that overtime would be at a premium rate and ten hours work would allow 15 hours off in lieu, a particular event might come up which was so attractive that the hours off at that period would be of more value to the employee. People must be allowed to work it out for themselves in the workplace.
I accept this as a positive development. I will not press the amendment other than to say workers will not avail of this unless there is the provision we seek.
Amendment, by leave, withdrawn.
Section 11 agreed to.
Amendment No. 23 has been ruled out of order.
Amendment No. 23 not moved.
Section 12 agreed to.
Government amendment No. 24:
In page 8, line 16, to delete "section 5 (2)" and substitute "section 5".
This section provides penalties for offences by workers who exceed the overtime limit set out in section 5 (2). That is where the normal working week is unvaried. It is possible that workers could exceed the overtime limits in section 5 (3). We want to prescribe that workers would be guilty of the same offence and liable accordingly.
Amendment agreed to.
Section 13, as amended, agreed to.
Sections 14 and 15 agreed to.
Question proposed: "That section 16 stand part of the Bill."
Senator Kirwan made the point that he was further restricting overtime working and the Minister dealt with that by saying there were too many risks involved, including a disimprovement in industrial relations. When it came to the vote on the amendment we said "Tá". Senator Kirwan did not withdraw the amendment. I thought the amendment was carried because no one voted against it.
The Senator should have said "Níl" because the words were standing.
Question put and agreed to.
Title agreed to.
Bill reported with amendments, received for final consideration and passed.
Sitting suspended at 5.40 p.m. and resumed at 6.30 p.m.