Select Committee on Enterprise and Economic Strategy debate -
Wednesday, 19 Feb 1997

SECTION 12.

Ms E. Fitzgerald

I move amendment No. 11:

In page 12, between lines 23 and 24, to insert the following subsection:

"(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).".

This amendment provides that the minimum rest period of 30 minutes may be extended to one hour for certain categories and classes of employee by regulation made by the Minister. The purpose of the amendment is to retain the right to a longer break for shop workers where this right already exists in law. The Bill repeals the Shop Acts from the 1930s. This was an oversight in the drafting which we are now rectifying.

Mr. T. Kitt

Does the Minister of State feel it is necessary to have a definition of the word "break" to allow for the employee to leave his or her work station for health and safety reasons? This is the first time we have seen the word "break" in this section. Section 12(3) states that "the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes". Is the Minister of State satisfied that by not having a definition of "break" the Bill provides sufficient protection for the employee?

Ms E. Fitzgerald

I am satisfied a break means that the person is on their own time and not at the direction of the employer. They will be free to leave the building. If there is any problem with that definition we will double check it and I will come back to the Deputy on Report Stage. However, I am quite satisfied with it. This has operated in legislation for years without any problem.

Mr. T. Kitt

If the Minister of State is prepared to check that, I will be satisfied.

Amendment agreed to.

Miss Harney

I move amendment No. 12:

In page 12, lines 24 to 26, to delete subsection (3) and substitute the following:

"(3) An employer shall not require an employee to work for a period of eight hours or more without allowing him or her a break of one hour; such a break may include the breaks referred to in subsection (I) or (2).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1), (2) or (3).”.

Does what the Minister of State has suggested cover what I am trying to do in this amendment? I would like to hear the Minister's views because I think it may be covered by her amendment No. 11, if I understand it correctly.

Ms E. Fitzgerald

Amendment No. 11, which has now been agreed by the Committee, provides, for example, that shop workers can get an hour's rest break at lunch time, which would correspond to their current rights under the Shop Act, 1938. The Deputy is seeking that in the first part of amendment No. 12. Technically, the way the Deputy's amendment is worded, it would be in conflict with the directive. We have met the main point.

Miss Harney

The trade union MANDATE made the point that workers who work eight hour days normally expect and get a one hour break. My amendment was aimed at achieving that. Since the Minister of State's previous amendment No. 11 also does that, I am prepared to withdraw my amendment.

Amendment, by leave, withdrawn.

Section 12, as amended, agreed to.

Section 13 agreed to.

SECTION 14.

Chairman

Amendments Nos. 13, 14 and 15 are related and may be discussed together.

Ms E. Fitzgerald

I move amendment No. 13:

In page 15, subsection (2), lines 38 and 39, to delete "under this section to him or her" and substitute "to him or her in respect of his or her being required to work on a Sunday".

These are technical drafting amendments.

Amendment agreed to.

Ms E. Fitzgerald

I move amendment No. 14:

In page 13, subsection (3), lines 45 and 46, to delete "under this section to a comparable employee" and substitute "to a comparable employee in respect of his or her being required to work on a Sunday".

Amendment agreed to.

Ms E. Fitzgerald

I move amendment No. 15:

In page 14, subsection (3), lines 3 and 4, to delete "under this section to a comparable employee to which the agreement relates" and substitute "to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday".

Amendment agreed to.

Ms E. Fitzgerald

I move amendment No. 16:

In page 14, between lines 9 and 10, to insert the following subsection:

"(4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.".

The purpose of this amendment is simply to clarify what happens when somebody is going to the Labour Court or the rights commissioner about Sunday premiums. It requires an employee who has brought a complaint to a rights commissioner to identify and bring to the notice of the rights commissioner or the Labour Court a relevant collective agreement specifying the Sunday premium in a situation where the rights commissioner or the Labour Court do not already have such information. The section deals with how a Sunday premium would be set. It is set by relevance to what happens elsewhere in the same kind of industry or business. If an employee is looking for comparisons, they will supply the court with any evidence to that effect.

Amendment agreed to.

Mr. T. Kitt

I move amendment No. 17:

In page 14, between lines 23 and 24, to insert the following subsection:

"(6) Except for certain ‘exempted activities' to be provided for by the Minister under regulations made under this Act, an employee shall not be obliged to work on a Sunday without his or her consent.".

I have worded this amendment with some care. As the Minister of State is aware, I recently published legislation concerning the retail area. I have looked at this legislation and have read submissions from the union MANDATE, in particular, in view of what the Minister of State, Deputy Fitzgerald, and the Minister for Finance, Deputy Quinn, have said. With regard to Sunday working in the distributive and retail sector various members of the Government parties, particularly Democratic Left, have said that the Minister of State should not pass up this opportunity to do something on that issue. The minimum I am seeking is an opt out facility for workers in the retail sector. Exempted activities should include work in hotels, pubs, the leisure sector and other obvious areas where Sunday work is normal.

Over 11.5 per cent of the workforce is employed in the distributive trade and 45 per cent of those workers are part-time. The Minister of State has spoken often in the Dáil about the trend towards the casualisation of labour. A new national agreement has been concluded and one of the groups which objected loudly to it, with much justification, was the MANDATE trade union which represents those workers. National agreements can only do a certain amount. Although my party supported it, this new agreement let that sector down, so it is our duty to try to redress the balance and intervene, by regulation. Even in the UK, where there is a liberal regime regarding Sunday work, legislation passed in 1994 provides for an opt out and a voluntary element with regard to Sunday work.

The European Court of Justice has ruled that Sunday is just another ordinary day. There is an onus on us as legislators to make a statement on the nature of Sunday work. This Bill has not gone far enough in this area. When the European Court made its judgment following a UK challenge it again opened the floodgates. It is time for us to intervene in this area. This is a modest proposal whereby, with the exception of exempted areas, the workers involved, who are mainly women and part-time workers, will have an opt out or choice with regard to Sunday work. It is a legitimate proposal and I hope the Minister of State will accept it.

Ms E. Fitzgerald

The European Court of Justice, following consideration of the directive, concluded that specifying Sunday as a day of rest was not a health and safety measure and did not arise from the particular provisions of the treaty. Nonetheless, I have included in the Bill special provisions in relation to Sunday. The Bill provides that all workers must get a Sunday premium, including workers whose only days of work are Sundays. The Bill also provides that existing workers whose contract of employment does not include a Sunday may not be obliged to work on a Sunday.

Deputy Kitt asked that we identify those sectors where Sunday work would be obligatory in a positive sense. I sympathise with his point of view. The wording of the amendment is extremely clumsy and we must look at the ramifications and the detail of how it would work in practice. Sunday work is now an established feature of many sectors, from essential services such as hospitals and transport to services such as the media, hotels, pubs and so forth, and to list those sectors would be the wrong way to approach this. If it is necessary or considered desirable to go beyond what I am providing, which is that nobody whose contract of employment does not require them to work on a Sunday may be asked to do so, we will have to look carefully at it to ensure there are no unintended side effects.

I have sympathy with what the Deputy is trying to achieve but I must have regard to practicalities. I will examine the proposal carefully to see if it is possible to come forward with a proposal on Report Stage. I have moved a substantial distance to deal with Sunday work in the Bill but if we can give further relief to particular categories of workers in a way that is not enormously disruptive to business I will look at doing so on Report Stage.

Mr. Crawford

I thank the Minister of State for her sympathetic view of this matter. She is hindered by European law, but it is sad that many people must work on a Sunday in the retail sector. Only a few years ago there was a five and a half day week in Monaghan town. Many shops were closed on Sunday and on another day during the week but now they seem to be unable to function without being open on Sundays all year round.

It is understandable that Sunday work might be necessary in the weeks before Christmas or other such festivals but we must ensure, if possible, that under this legislation nobody is forced to work on a Sunday. I appreciate that hospitals and other facilities must provide a service every day but it would be sad if somebody who had taken up employment on the understanding that they did not have to work on a Sunday were to find that this or other legislation would force them to do so. I am glad the Minister of State has clarified that matter.

This is an important issue. Ireland was once known as the island of saints and scholars and we regularly admonished the English on the way they carried on their business. We were delighted to join the European Union. It appears that few European countries have the same opening hours or activities as we have on Sundays but we appear to have simply followed the English in this regard.

Chairman

Like Deputy Crawford, Deputy O'Keeffe has wide experience in the agricultural sector and he will have something to say on this subject.

Mr. E. O'Keeffe

I have strong views on this matter. As a result of Sunday trading people are now travelling to large urban centres to do their shopping and the large multiples are taking business from rural shops and even bigger shops in medium sized towns. Deputy Sheehan has similar views to mine in this regard. Many parts of Europe do not have Sunday trading. It was normal in this country that public houses and licensed premises always traded on a Sunday because they provide a casual service. Hotels and leisure centres also traded on Sundays. However, there has been huge growth in Sunday trading in other areas. I understand that nearly all of Germany, a huge country, is more or less exempt from Sunday trading.

I have strong views on other provisions in the Bill but in this context we should make Sunday trading as difficult as possible. If we do not do so, all we will have is a few large shops in our bigger cities and no shops in rural Ireland. There is an exodus every Sunday to the big shops in cities and large towns. People might only require a tin of polish but it is an excuse to go shopping. Shopping is becoming a social outing and we must recognise that fact. I rarely agree with Deputy Crawford but I must agree that Sunday trading is causing disadvantages for other sectors. We have been told often about the shift in population. It is forecast that more than half of the Irish population will live in an area stretching from north Dublin to Wexford. That shift will be accelerated if we do not impose regulations in this area. If I had my way I would outlaw Sunday shopping.

Chairman

I hope the Deputy is not excluding the wee county.

Mr. E. O'Keeffe

People are not moving north for some reason.

Mr. T. Kitt

The Minister of State has heard the views of members of various parties. There is a genuine concern about this issue. I accept her interest in this area because we have discussed it before and I also accept the bona fides of her assertion that she will examine this in detail before Report Stage. For that reason, I will not press my amendment. The issue is complex and has no simple solution.

I have recently published legislation and, if it comes before the House before the election, I ask the Minister of State to look favourably on it. Furthermore, I ask her to examine an issue before Report Stage. I was informed by the Minister for Enterprise and Employment, Deputy Richard Bruton, when I raised the issue in the House, that the Attorney General's advice on the aspect of Sunday trading covered by this amendment was that it was not possible. His advice must apparently have been that one cannot ban Sunday trading for the retail sector and not ban it for other areas as well. I ask the Minister of State to obtain a copy of that advice for the members of this committee because we are entitled to it. Both I and the MANDATE trade union have also been seeking that advice. It is a straightforward request that the Attorney General's advice on Sunday trading be circulated to the Members of this committee to give us an opportunity to discuss this issue with the Minister of State on Report Stage. It is the least we are entitled to and it is a legitimate request to which I hope the Minister of State will respond favourably.

Otherwise, her response has been positive and I will not press my amendment. However, I would like the Chairman to arrange for this issue to examined again on Report Stage.

Chairman

We always try to co-operate with colleagues. However, the Attorney General does not act in an advisory capacity to this committee. His constitutional function is to advise the Government. Therefore, any advice sought or received from him must come through the Government. I am sorry I cannot undertake to arrange that.

A number of points were made. While the Minister has already made her position clear, were any points raised by Deputy Ned O'Keeffe or Deputy Crawford to which she might wish to reply?

Ms E. Fitzgerald

This legislation deals with the employment conditions of workers, not with the trading issue which is the responsibility of my colleague, the Minister of State at the Department of Enterprise and Employment, Deputy Rabbitte. I have been advised that it is not possible to have different rules for different sized shops. I did not gather from Deputy O'Keeffe, Deputy Crawford or anyone else that it was intended to close small shops in rural villages which serve people after Sunday mass. To do so might put group water schemes in the halfpenny place as a rural issue. There is no intention of doing away with that traditional and valuable service. In the circumstances, it is difficult to legislate for different types of shops selling similar goods and that is the essence of the advice I received. However, I will examine the issue in terms of voluntary Sunday working to see if there is scope to improve the existing protections in the Bill relating to people's contracts in the retail area. In any event, if one's contract does not say one must work on a Sunday, one is not obliged to do so.

Mr. T. Kitt

I did not ask the Chairman but the Minister to obtain the Attorney General's advice for me. I asked the Chairman to assist me with regard to Report Stage and I thank him for his reply.

I wish to clarify what the Minister said. The essence of the Attorney General's advice related to the difficulty of banning Sunday trading for larger outlets as compared with smaller ones. It did not relate to the difficulty of banning Sunday trading in the retail sector as compared to a leisure or garden centre or a pub.

Ms E. Fitzgerald

If a small shop can sell goods to someone who wants to buy emergency groceries on a Sunday for unexpected visitors or because they did not finish their shopping on Saturday, then Dunnes Stores or Quinnsworth cannot be excluded from selling the same items during the same hours.

Mr. E. O'Keeffe

I have listened to the Minister of State and to my colleague, Deputy Tom Kitt, who has done much work and has been very innovative in the area of Sunday trading and with regard to labour laws. I wish to read an extract from a letter from the trade union, MANDATE, concerning Sunday trading:

We are seeking the introduction of controls on Sunday trading which will bring Irish Sunday trading in line with the European norm. With the exception of Sweden, Ireland is the only EU country without any control on Sunday trading. The Department of Enterprise and Employment have pandered to the interests of the big retailers on this issue. A mysterious legal opinion has been cited as the reason for letting big business dictate the pace on Sunday trading. The contents of the legal opinion remain a closely guarded secret. Who wrote the opinion remains a secret as well. So much for transparency. In the meantime small shops lose business and many jobs are lost.

At no time had I any intention of closing small shops because it is the norm in Ireland and many parts of the world that small shops open on Sunday so that one can buy the Sunday paper, a box of sweets or a bottle of milk. Why can the issue of what shops should close not be based on turnover? A great colleague, Mr. Haughey, once said that civil servants could legislate to tax red hair, for example. It is, therefore, possible to legislate for a distinction to be made on turnover.

I am concerned that large supermarkets are destroying the towns and villages of Ireland. Sunday shopping is becoming a social event and, rather than visiting the leisure or garden centre, people now go to the large stores in the city. Sunday trading is commonplace in the United States where some shops trade through the night as well, but we cannot compare with the land of opportunity because we do not have that scale of operation. We should protect what we have.

Amendment, by leave, withdrawn.

Section 14, as amended, agreed to.