This amendment is carrying out a promise I made on Second Reading. The only point that was raised with regard to this particular section that I did feel was a definite omission was this question as to whether or not matters arising out of Section 2 could be referred to the arbitrator. This amendment effects that —the demand that was made generally by interested parties in the House and that it was thought fit to agree to. I move the amendment.
RAILWAYS (EXISTING OFFICERS AND SERVANTS) BILL, 1926—THIRD STAGE (RESUMED).
The Dáil went into Committee.
Debate resumed on Amendment 8: Before sub-section (2) to insert a new sub-section as follows:—
"(2) If any dispute or question shall arise between the amalgamated company and any officer or servant of the amalgamated company on any matter arising under this section, such officer or servant may appeal to the standing arbitrator or board of arbitrators mentioned in paragraph (8) of the Third Schedule to the Principal Act and that paragraph shall apply to any such appeal in like manner as it applies to the appeals mentioned therein."
Amendment put and agreed to.
I move:
To delete sub-section (2).
Sub-section (2) reads:—
"In this section the word ‘service" does not include any period of service as a trade apprentice with any amalgamating or absorbed company."
I have not yet heard any reasonable argument to justify the inclusion of this Section in the Bill. It is simply to penalise tradesmen. In the debate on the Second Reading I compared the position of the trade apprentice with any other man in the service, and I think I was followed by Deputy Johnson and others who spoke on the debate. I do not wish to take up the time of the Dáil much further, but I would like to ask the Minister what is in his mind as regards the trade apprentice whose service it is intended by the Bill, to prevent from counting in the matter of compensation? A boy clerk who goes into an office in the service of a railway is not penalised, nor is any man who is in that class of service. Neither is a man penalised who goes into the running shed, and who, by degrees, gets to the position of driver. When he has done five, ten, fifteen or twenty years' service, under the Bill he gets the full amount of compensation according to that service, but in the case of the apprentice, the young fellow who goes in for a trade, it is sought to deprive him of at least five years of that time.
I want to support this amendment. I think that the case in favour of the retention of the apprenticeship period is obvious. I am quite at a loss to understand the justification for omitting the service of apprentices from the benefits of the Compensation clause. During the greater period of the time, certainly of the apprenticeship, the company is getting a benefit for which it is not paying, from the apprentice serving. For the first year, or two years, perhaps, the apprentice is getting the value of the company employees' tuition, but from that time onwards, the company is getting much more value from the apprentice than it is paying for. The time, therefore, that is given by the apprentice in the service of the company should count as a period of service when, later, claims for compensation come forward. I have a suspicion that the Minister's desire is to affect only those cases where a man coming out of his apprenticeship is dismissed, but it must be borne in mind that the case of the apprentice or the case of the man who is after long service, subsequent to his apprenticeship, being dismissed, is affected by this also, and whatever case there may be for the first part of the proposition, there is certainly no valid ground for cutting off the period of apprenticeship when calculating the period of service. I hope the Minister will see that there is no equity in this proposition that the period of service should not include the period of apprenticeship.
I would like to support this amendment. I think it is not clearly understood that apprentices in the railway service are in some respects what one would call special apprentices. When they are going in for work besides railway work they have not that knowledge which would fit them to compete in the outside labour market. I would go further than Deputy Johnson and I would say that the apprentice, right through his whole apprenticeship, gives more value than the amount he receives for his work. I do not think it is right to throw those apprentices out on the labour market in this manner. When they become redundant, there is very little chance of their getting any other employment outside.
It is viewing the matter from the wrong angle to speak of what the company gets by what will presumably be called the "cheap service" of the apprentice during his apprenticeship period. That may be a matter to be considered from the point of view of whether or not the company has gained, but that is not what is in question here. What is in question is whether the Schedule is giving compensation to railway servants whose tenure of service, or whose period of service, has been interrupted or destroyed by reason of amalgamation. The only thing that must be looked to is: How far was the trade apprentice ever considered an employee of the company, taken in two ways—continuity of employment or reasonable prospect of employment from the railway company? On that point, the case for the trade apprentices being included in this Schedule falls to the ground, because it cannot be contended that there was any guarantee of employment to the apprentice and it can hardly be said even that there was a reasonable prospect of his employment in the service of the railway company.
Surely the company did not intend when they were taking on these apprentices merely to get cheap labour and to turn them out at the end of their apprenticeship. Were they not training them for their own service?
That is mixing up two things. That is trying to get at the idea as to what the company's object was in securing the youths who went into their shops at particular periods. What their intention was does not matter here. The question is: Was there continuity of employment promised? There was not. If you take the average, it does not even show that there was reasonable prospect of employment. If the shops got certain people in who thought that by going in and learning a certain type of trade they would get employment elsewhere, —as was the case with the great majority—it is not for anybody here to inquire what was the object or motive of the railway company in taking them in. It simply does not arise at this stage.
Deputy Johnson makes a distinction as between the trade apprentice—the apprentice who had been merely out of his apprenticeship and who would be deprived of any compensation for that period—and the man who had been retained in the service, having put in a five-year period of apprenticeship. He points out, quite rightly, that this amendment would not merely defeat the particular apprentice who is out of his period of apprenticeship but would take five years off the tot of years when you come to arrive at a lump sum or annuity to be paid to somebody who was kept on and who is now going to be dispensed with. I think, if you admit the principle in one case, it has to be admitted in the other case. There may have to be a distinction made. The question of distinction can be argued here. So far as the principle is concerned the five years spent as trade apprentice was not spent in the service of the railway company in the sense that a person would be considered as a servant or employee of the company, and I put it to the Labour Party, who are so fond of referring to the smooth running of the English Act, in this connection: Has there been a case in which the trade apprentice period has counted as regards compensation?
The Minister is putting me a question which I cannot answer, because I have no knowledge. What I have knowledge of is that the Minister proposes to provide that the word "service" in the Third Schedule will not include any period of service as trade apprentice in the amalgamated or absorbed companies. I searched my mind for some idea as to the interpretation or justification of this paragraph of the section. I assumed—apparently wrongly—that the Minister's view was that apprenticeship should not be included as service, inasmuch as it was the apprentice was getting the benefit from the company. Now, I find that the question of payment or reward for service does not enter into the reasons why this provision should be sought to be inserted, but that the mind of the Ministry is that the apprentice was not a servant of the company with any reasonable prospect of continuous employment. I should have thought that if there was any railway service which justified the expectation of continuous employment, it was the service of a young man who went in as an apprentice and who was kept on after his apprenticeship for a number of years. You take a youth and train him in a specialised form of work, and in that way you practically preclude him from obtaining outside employment. If that is not a presumption that his work is to be railway work, and that he is to be employed by one or other of the railway companies, I do not know what it is. I should have thought that if there was any case where there was a reasonable expectation of continuous employment, it was in the case where you had taken on a boy as apprentice to specialised work in a railway shop, and that after he had proved that he was a receptive pupil, you kept him on for a number of years. Now the Minister says that he had no right to expect that, and that his period of service as apprentice should not be considered.
Let us take the other case, where a man went into the service as a journeyman or craftsman. After a period of service, he has a reasonable expectation of continuous employment and provision is made in the Bill to meet that man's case. Surely, if there is any case at all for such a man, there is an additional case for his neighbour, who had had a similar period of service as a journeyman, and who had also a period of service as apprentice in that railway shop. Surely, in the case of the man who was trained in the railway shop and continued his service there, there is expectation of continuous employment over and above the man who came in, having served his apprenticeship to another class of work. If there is any case for expectation of continuous employment, it is greater in the case of the man who has served his term in the railway workshop, than in the case of the man who served his time outside the railway workshop and came in as a journeyman.
It is hardly a sound argument to say that because a boy, of his own choice, trains for a certain position, and because he is accepted to be given a training in that position, he is also promised continuity of employment. The Deputy is speaking as if there were some over-specialised line of work which these people were learning. A man might be trained in a railway workshop as a fitter or boilerman. The Deputy does not surely hold that the work of fitters or boilermen is confined to the railways. If there is going to be any argument founded on this proposition, that some society, railway company or other takes hold of a boy and says, "We give you employment and train you; in some cases you pay a fee for that training and in other cases you go in and do not get very much in the way of pay"—if you are going to make that case a howl will go up all over the country from unemployed medical students who are trained and, who presumably, on Deputy Johnson's argument, could hold that they were promised employment by the qualifying body, and a howl would also go up from the endless briefless barristers who could claim that they were promised employment by the Hon. Society of King's Inns.
I did not know that the Hon. Society of King's Inns paid apprentices for their apprenticeship. I did not know that they qualified barristers. I did not know that there was a Bill before the Dáil to guarantee the persons who make up the King's Inns Council a definite income. I did not know that there was in the case of any of their apprentices who qualified any suggestion at all of giving them compensation, nor did I know that people who came to practice in the Saorstát, and who had served their apprenticeship under another authority than the Society of King's Inns were to be compensated for any loss of employment. Is the Minister trying to make the case that no person who has served in the workshops is entitled to compensation? That obviously is not a fact. The Minister is not trying to make that case. He is admitting that men in the workshops in certain circumstances are entitled to some compensation, based upon the number of years' service. But he comes along and says that the years' service as apprentice shall not be counted.
I submit that there is, at least, as much justification for expecting continuous employment on the part of a man who has served his apprenticeship in a railway shop as there is on the part of his neighbour who has not served his apprenticeship in that railway workshop. Take two men, both in the railway workshop, both entitled to compensation under the Act. One of these men served his apprenticeship in Harland and Wolff's in Belfast and the other served his apprenticeship in the Inchicore Works. In one case the man has served 10, 15 or 20 years, as the case may be, in the railway workshop. In the other case the man has served five years less. I maintain that the service as an apprentice of the one who has served his apprenticeship with the railway company should be taken into account as railway service. The reasonable expectation of continuous service applies to the man just as well when he goes in as an apprentice as when he goes in as a journeyman. The Minister has to prove the case for exempting that period of service as an apprentice. It is not our business to prove, on this motion, that the workman who has served in a workshop for any period at all is entitled to compensation. That is not the case. The proposition is that the period served as an apprentice should be deleted from the period of service. I say that the Minister has not made that case at all and he cannot make that case.
The Minister says that he doubts if there is any specialisation of work at railway workshops. I do not want to say that the man who serves his time in a railway engineering workshop feels that he is not able to take up the trade in any other department of engineering. I might follow that up in the case of the other departments—coachmaking, painting, etc. But I do say that there is specialised work done there. I say that the company get the best advantage out of a young man who serves his period of apprenticeship at their works. It may be argued that in the first two years, while the boy is serving his time, he would not have the qualification or the experience to give the company value for the small wage he might be paid. But when a young fellow gets to the third, fourth and fifth year of his apprenticeship I hold he is of greater value to the service than a new man taken in. He gets proficient in a certain class of work, whether it is railway carriage or locomotive work. That class of work may not be carried out in other engineering shops. The same applies to coachmaking in relation to railway carriages as compared with work carried on in a motor works. In that sense I think the company have undoubtedly the best value from the man who graduates in the workshop and gets experience of his work. It is to their benefit to keep him on after his term of five years is completed.
I agree with Deputy Johnson in saying that the Minister has not made his case. The Minister claims that we have not made our case. I think if the Minister goes more deeply into the matter between this and the next stage of the Bill, he will find that the exclusion of this service of the apprentice from coming within the scope of compensation, means in effect that he is treating one section of the workers different from the others.
I am not inclined to take the point of view of Deputy Johnson in this matter at all. I think Deputy Johnson is doing some special pleading. From my experience in a much greater industrial centre than Dublin, I do not think it can be held that an apprentice in the engineering trade has any reasonable expectation of continuity of employment after he serves his apprenticeship. Apprenticeship does not qualify a boy immediately to be master of the craft to which he served his apprenticeship. It is generally accepted by employers and by engineering firms that a man is only really useful when he has had experience of firms other than the firm in which he served his apprenticeship. I have not, in my experience, found it possible to hold that an apprentice can have more than a reasonable hope of continuity in the employment of the firm in which he served his apprenticeship. The experience to make him a fully qualified man, a man of greater value for the remuneration paid, and of greater efficiency, can only be attained after he has had experience in firms other than that in which he served his apprenticeship. Consequently, I would not take the point of view that there is more than a reasonable hope, but not an expectation, of continuity of employment after apprenticeship.
The Deputy is missing the essence of this case. A man who did not serve his apprenticeship in the railway workshop, goes into the employment of the railway workshop, and is continuously employed for ten years. The Bill already assumes that he has a reasonable expectation of continuous employment, and he is to be compensated on the assumption that he is being rendered redundant by the operations of amalgamation. This is a case in regard to the man who served his apprenticeship somewhere else. Quite apart from the question of the relative value of the man who served his time in the workshop of the railway company or somewhere else, the same thing applies; he was kept on by the railway company. They, at least, deemed that he was serviceable to them after he had served his time in their workshops. His employment continued, and after ten, fifteen or twenty years, through the operations of the Act, the question of his redundancy arises. Should his period of service date only from the time when he was finished his apprenticeship? The Minister says yes. We say that it ought to begin from the time he entered the service, because the company deemed him to be worth while employing, and his service with the company began at the time of entering that service. If he had broken his service, if after his apprenticeship he had gone somewhere else and had come back in five years time, you might make out a case. But here is a case of continuous service, and I cannot for the life of me make out why you should say that he should not have credit given for the period of his apprenticeship.
The Deputy makes the point that a boy served five years of his apprenticeship and was kept on, and that therefore he was of service to the company. I respond, as much service as a new man brought in at that period. The five years might not count at all towards it. There is the other point: If the House likes to consider the prospect of boys from 19 to 22 years of age getting pensions of from £20 upwards for the rest of their lives, they can stand by the amendment.
That would not be anything new. Boys of that age are already drawing pensions.
Amendment put.
The Committee divided.—Tá: 9; Níl: 40.
Tá.
- Bryan R. Cooper.
- David Hall.
- Maolmhuire Mac Eochadha.
- Tomás Mac Eoin.
- Risteárd Mac Fheorais.
- Aodh O Cúlacháin.
- Eamon O Dubhghaill.
- Peadar O Dubhghaill.
- Domhnall O Muirgheasa.
Níl.
- Pádraig Baxter.
- Earnán de Blaghd.
- Thomas Bolger.
- Seoirse de Bhulbh.
- Próinsias Bulfin.
- Séamus de Búrca.
- John J. Cole.
- Sir James Craig.
- James Dwyer.
- Patrick J. Egan.
- Thomas Hennessy.
- John Hennigan.
- Connor Hogan.
- Patrick Leonard.
- Donnchadh Mac Con Uladh.
- Liam Mac Cosgair.
- Séamus Mac Cosgair.
- Pádraig Mac Fadáin.
- Patrick McGilligan.
- Risteárd Mac Liam.
- Liam Mac Sioghaird.
- Pádraig Mag Ualghairg.
- Patrick J. Mulvany.
- Martin M. Nally.
- John T. Nolan.
- Michael K. Noonan.
- Peadar O hAodha.
- Mícheál O hAonghusa.
- Seán O Bruadair.
- Eoghan O Dochartaigh.
- Séamus O Dóláin.
- Mícheál O Dubhghaill.
- Eamon O Dúgáin.
- Donnchadh O Guaire.
- Mícheál O hIfearnáin.
- Domhnall O Mocháin.
- Seán O Raghallaigh.
- Máirtín O Rodaigh.
- Seán O Súilleabháin.
- Caoimhghín O hUigín.
Tellers:—Tá: Deputies Morrissey and Colohan; Níl: Deputies Dolan and McCullough.
Amendment declared lost.
I move: In sub-section (5), line 8, before the word "service" to insert the word "his". This is really a drafting amendment.
Amendment put and agreed to.
Section 2, as amended, put and agreed to.
SECTION 3.
The Third Schedule to the Principal Act shall be construed and have effect as if the paragraph numbered "(4)" now contained therein were omitted therefrom.
I am not clear as to the relation of amendment 11 to amendment 12. I take it that if amendment 11 is passed it will dispose of part of amendment 12. Similarly, I think it has some reference to amendment 19. However, we will take amendment 11.
I move:—
In line 11 to delete the words "omitted therefrom" and substitute the words—"amended by the insertion after the words. ‘If any existing officer or servant in the said paragraph (4) of the words ‘suffers any direct pecuniary loss by reason of the amalgamation or absorption in respect of which compensation is not payable under any other paragraph of this Schedule (including any loss of prospective superannuation or other retiring or death allowance and allowances to his widow or orphan children, whether obtaining legally or by customary practice of the amalgamating or absorbed company) or being'."
The object of this amendment and of the next amendment is not to effect any real change in the substance of the section but to make it easier to understand. The intention is to bring all the cases which are to be payable by lump sum compensation into one paragraph and all the cases which are to be dealt with by pensions into another, to deal with them clearly, and save certain difficulties which arose as to understanding the proposal of the Minister. In the Bill the Minister seeks to bring all cases of loss, whether due to reduction of status or loss of office, into the one paragraph, and I think a good deal of misunderstanding is likely to arise as a consequence of that method. I am not going to force a division upon the amendment. I think that the purpose sought to be achieved by it is one that should commend itself. I think it will be found that when the Bill passes, if it passes in its present form, or if this next section is passed in its present form, it will be the subject of a good many differences of interpretation. I would ask any Deputy to try to read Section 4 from line 15 to line 60 with understanding, and to tell us what it means. I hope that the amendment will commend itself to the Minister.
I support the amendment, and I think it is one that should commend itself to the acceptance of the Minister.
The amendment goes beyond what is acceptable in one point. It makes a division which is arbitrary and is, I consider, a bad division. It goes beyond what is considered acceptable in this respect, that it would provide for what Deputy Johnson stated in so many words—loss of status. That is not considered a proper matter to be compensated for. What will be compensated for under the existing Act, as amended by this, is the abolition of office, the relinquishment of office, where a man is dispensed with, where an employee has his remuneration and emoluments reduced, or where an employee suffers other pecuniary losses. This would bring in all these, and would certainly give rise to claims for loss of status. I think it is quite unreasonable to ask that the Railways Company, which means in the long run the railway users, should be compelled to pay every man who resigns because he says he has suffered in status in some way.
Frivolous cases have already been raised and no doubt other frivolous cases would be raised as regards the distinction Deputy Johnson made when he wants to put in one paragraph the matters compensated for by a lump sum payment and to leave in another paragraph all matters compensated for by an annuity. That is a quite good division, but we propose here that whereas the general run would be that a person retained in the service and going to be compensated would not have that compensation as an annuity, but as a lump sum payment, but we feel, recognising the present position of the railway companies, that if a multitude of lump sum payments were to fall on them at once, it would put a heavy burden on them, and therefore it is going to be left to the discretion of the arbitrator in cases where evidence was given that what ordinarily would be a lump sum payment would be substituted by an annuity. For that reason I cannot accept the division as between the cash down payment and the annuity payment, and I object definitely to Deputy Johnson's amendment on the ground that it certainly would give rise to claims by people who would allege loss of status or dignity.
The amendment speaks of any direct pecuniary loss, and I only use the words "loss of status" as indicating the difference between loss due to his change in the company as compared with loss due to his discharge from the company's service. It specifically refers to pecuniary loss.
I thought it was definitely aimed at giving rise to claims for loss of status. If it is not so, I repeat again you have covered by the Schedule and by the Bill at present before the House, such things as abolition of office, relinquishment of office, the cases where a person is dispensed with, and that the case, where his emoluments have been reduced and all other pecuniary loss, is sought to be put in. Therefore now, the only difference between us is the bulking, into one paragraph of the lump sum payments. That division I cannot accept because, recognising the present position of the railways, it ought to be left to the discretion of the arbitrator whether a number of lump sum payments would throw an undue burden on the railway company.
Apparently, up to that point the only question is as to whether it is likely to be more easily understood in the manner as presented by the Minister or as it would be if it were divided into two separate or distinct paragraphs, and I think undoubtedly the two categories should be dealt with separately and distinctly in the Bill.
On the second question the Minister has raised, paragraph (ab) of (a) in Section 4, seeks to put upon the Amalgamated Company, subject no doubt to appeal, the right to decide whether the sum shall be a lump sum allowance or an annual allowance, but if the Company decided to make the payment an annual allowance of £1 a year or £5 a year, instead of a lump sum, you are throwing the onus upon the recipient to appeal to the arbitrator. I think, if the Minister intends that the normal method of compensation for pecuniary loss of any person who is retained in the Company's service is by payment of a lump sum that should be stated here, and if necessary an appeal to the arbitrator in the case of special hardship on the Company. It may be desirable that there should be exceptions, but I think it should be made clear in the Bill that the normal method in such a case should be the payment of a lump sum and not of an annual payment, and it should not be left to the Company to decide whether it should be a lump sum or an annual payment. I think it is almost certain, if the companies decide to pay a small annual allowance to the person retained in the employment, that it would be treated as part of wages or salaries. That would be undoubtedly the tendency, and I think, if that is not the intention, the privilege of deciding whether a lump sum or annual allowance should be paid should not be with the Company, but rather with the arbitrator if the Company appeals to the arbitrator.
If it meets the Deputy, as far as this point of a lump sum versus an annuity is concerned, I can look into it before the Report Stage, and I can have it put in some such form which will provide that compensation shall be a lump sum, or, with the consent of the arbitrator, throwing it definitely into the atmosphere that normal payments under (ab) would be a lump sum. There is a provision for a change on application to the arbitrator. The Deputy wants, I think, to throw the onus on the railway company, instead of having it thrown on the arbitrator.
I wanted to have it normally the lump sum.
I will endeavour to get it framed to meet that case.
Does the Minister agree that Section 4 can be divided up to make it more understandable?
Of the Bill?
Yes.
I will take suggestions for it.
The suggestions are contained in my amendment.
The amendment definitely says this—"Suffers any direct pecuniary loss by reason of the amalgamation or absorption in respect of which compensation is not payable under any other paragraph."
That is a very wide and general statement to have made without any discussion as to what types of cases it could be extended to cover. I put it to the Deputy that everything thought fit to be covered is, in fact, covered by Section 4 of this Bill. If there seems to be any omission on that point we will see what can be done to rectify it.
The only other thing is by putting this amendment of Deputy Johnson into the old Section 4 of the Third Schedule. The main effect is to make it so that there shall be no choice between a lump sum and an annuity and that it should be a lump sum, because Section 4 of the old Schedule is the lump sum payment. If there is accommodation reached on that by some amendment of (ab) we will have the position cleared somewhat; but according to Deputy Johnson's suggestion, I do not see what there is in the amendment. The object seems to be to get a lump sum agreed on. What else remains to be done I cannot see.
I would like to make this clear, that in these two amendments, apart from the point that has been cleared up, there is no intention of altering the substance of the paragraph in the Bill, but, having accepted the substance, to make it much more easily understood, and that could be done by dividing the section so that it would deal with two classes of cases. One of these cases would cover lump sum compensation, that is, in respect to a particular class of loss, and the other would cover cases where the compensation has to be paid by pension. The two classes should be treated in two separate paragraphs. It is really a question of drafting, but I think it is important that people should understand what their rights are under the law. I would ask the Minister if he has had any lessons in elocution, or reading aloud, to read for the benefit of the House, Section 4.
I think I should explain what the abolition of Section 4 would mean from our point of view, because it may be taken later on by people who come to interpret it, that we seem to be taking away something which was originally intended. The distinction between Section 4 and Section 5 of the old Schedule is roughly this: Section 4 was intended to apply to redundancy which occurred on transfer, and Section 5 refers to people who were kept on. The furthest limit in time for the application of Section 4 was the date of transfer, that is, Section 4 in the Schedule of the Act. It happened that neither Section 4 nor Section 5 was read in that way, and the arbitrator felt himself coerced to rule out certain words in Section 5—"Or whose remuneration or emoluments are reduced, etc." Section 4 is now to be abolished, because the purpose it was intended to serve was, in fact, not served by it. The new Section 4 in the Bill amalgamates into one paragraph all that was intended to be effected by reading the other Sections, 4 and 5, together.
Amendment put and negatived.
Question—"That Section 3 stand part of the Bill"—put and agreed.
SECTION 4.
The said Third Schedule to the Principal Act shall be construed and have effect as if the paragraph thereof numbered "(5)" were amended as follows, that is to say—
(a) by the deletion of the first clause thereof, which clause begins with the words "Every existing officer or servant" and ends with the words "that is to say." and the insertion of the following clause and sub-clauses in lieu of the clause so deleted, that is to say—
"Every existing officer or servant who under paragraph (2) of this Schedule relinquishes his office or situation within seven years after the passing of the Principal Act and every existing officer or servant whose office or situation is abolished or his services dispensed with under the said paragraph (2) within such seven years solely on account of his office, situation, or services having become unnecessary in consequence of changes of administration due directly and solely to the amalgamation and absorption of companies effected by or under the Principal Act and not caused or contributed to by decrease of traffic, reduction of renewal or maintenance work, introduction of improved methods of working (other than methods which would not have been feasible for the amalgamating or absorbed company by which the officer or servant was formerly employed) or other economic cause, or whose remuneration or emoluments are reduced within such seven years on the ground that his duties have been diminished in consequence of such changes of administration as aforesaid or who otherwise suffers within such seven years any direct pecuniary loss by reason of such changes of administration as aforesaid (including any loss of prospective superannuation or other retiring or death allowances and allowances to his widow or orphan children whether obtaining legally or by customary practice of the amalgamating or absorbed company) shall be entitled to be paid compensation by the amalgamated company, the amount of such compensation to be determined and paid by the amalgamated company (subject to appeal as hereinafter provided) in accordance with the following rules, that is to say—
"(aa) in the case of an existing officer or servant who relinquishes his office or situation or whose office or situation is abolished or whose services are dispensed with as aforesaid the compensation shall be an annual allowance to be paid to him during his life;
"(ab) in any other case the compensation shall be either a lump sum or an annual allowance as the amalgamated company shall (subject to appeal as hereinafter provided) decide"; and
(b) by the deletion in sub-clause (a) thereof of the first paragraph of that sub-clause, which paragraph begins with the words "the compensation" and ends with the words "following scale," and the insertion of the following paragraph in lieu of the paragraph so deleted, that is to say—
"(ac) where the compensation payable to an existing officer or servant is an annual allowance, such annual allowance shall not in any case exceed two-thirds of his remuneration and emoluments, and subject to that over-riding limitation, shall not exceed an annual sum calculated at the rate of one-sixtieth of his remuneration and emoluments for every completed year of his service with the amalgamated company or any amalgamating or absorbed company, with an addition thereto based on the number of completed years of his service and calculated according to the following scale:—"
and
(c) by the insertion immediately after sub-paragraph (a) thereof of the following sub-paragraph:—
"(ad) In the case of an existing officer or servant who has served as a trade apprentice with any amalgamating or absorbed company, the period of such apprenticeship shall not for the purpose of this paragraph be reckoned as service with such amalgamating or absorbed company."
and
(d) by the deletion of sub-paragraph (d) thereof and the insertion of the following sub-paragraph in lieu of the sub-paragraph so deleted, that is to say:—
"(d) In fixing the nature and amount of compensation all the circumstances of the case shall be taken into consideration and in particular due consideration shall be given to any such loss of prospective superannuation or other retiring or death allowance as aforesaid, and also where the compensation is an annual allowance and the officer or servant is entitled to benefits by way of superannuation payable out of any contributory superannuation or benefit fund to which an amalgamating or absorbed company or the amalgamated company contributed or contributes, such annual allowance shall be the difference between the amount of the annual allowance which would be payable if the officer or servant was not entitled to any such benefits and the annual amount or annual value of such benefits."
I move—
In lines 24 and 25 to delete the words "or his services dispensed with," and in line 27 to delete the words "situation or services" and substitute the words "or situation," and in line 37, after the word "cause" to insert the words "or whose services are dispensed with within such seven years on account of such services having become unnecessary in consequence of such changes of administration as aforesaid."
This is merely a drafting amendment to make the section more clear.
Amendment put and agreed to.
I move—
In paragraph (a), page 3, to delete from the word "solely," line 26, to the word "cause," line 37, inclusive, and substitute the words "on account of or by reason of the amalgamation or absorption of companies effected by or under the Principal Act."
I do not think that I have anything further to add to what I have already said on this matter.
This point was debated at length on Section 2, and the discussion really went on the basis that it was an amendment to Section 4. I have the same objections to it now as I had then.
Amendment put and negatived.
As regards the next two amendments, Nos. 15 and 16, I should point out that they deal with the deletion of the words "directly and solely." This point was also fought out on Section 2, and I indicated that it could be left over to the Report Stage, and that the word "directly" could be left out with the word "solely," but the amendment was insisted on and the word "directly" remained in Section 2. If it is omitted from Section 4, there will probably be an impression that there was some point in keeping it in Section 2 and in removing it from Section 4. While I agree that it could be left out of both sections, I am not prepared to have it in one and not in the other. If an amendment is moved later to take out the word "directly" as well as the words "and solely" with regard to both Sections 2 and 4 I would favour it.
I am quite satisfied with the suggestion of the Minister, and I shall not therefore move Amendment 16.
Then I propose In paragraph (a), line 26, to delete the word "solely" and in line 29 to delete the words "and solely."
Amendment put and agreed to.
I move:—
In paragraph (a), line 31, immediately before the word "caused" to insert the words "shown by the amalgamated company to have been."
This is similar to the amendment in Section 2. It is to throw the onus of proof on the Railway Company in regard to certain matters referred to.
Amendment put and agreed to.
I move:—
In paragraph (a), line 31, to delete the words "or contributed to."
This is similar to the other amendment.
Amendment put and agreed to.
I move:—
To delete paragraph (b).
So far as the annual allowance to be paid is concerned, there is nothing unreasonable in maintaining paragraph 5 (a) as it stands. Workmen's wages on the railway are not extremely high, and in cases of old servants whose positions are abolished it would be difficult, and almost impossible, for such men to secure similar employment elsewhere, particularly in view of the prevalence of unemployment. My object here is to safeguard such men and to retain for them the provisions of the Principal Act.
This very simple looking amendment seeks to retain the words that have been causing the whole trouble. I put it to the House on Second Reading at great length, that I did not think it proper, and that I did not think that the House would hold it proper, that railway servants on retiring should be ensured as a minimum at what civil servants on retirement are ensured as a maximum. To accept Deputy Doyle's amendment would be to reinstate all the words which are so definitely objectionable from that point of view. I cannot accept the amendment at all.
Amendment put and declared lost.
I move Amendment 20:—
To delete in page 4 paragraph (c).
Amendment put and declared lost.
I move amendment 21:—
In page 4 to insert before paragraph (d), line 25, a new paragraph as follows:—
(d) by the deletion of sub-paragraph (b) thereof and the insertion of the following sub-paragraph in lieu of the sub-paragraph so deleted, that is to say:—
For the purposes of this Schedule an absence from or discontinuance of employment by any amalgamation or absorbed Company for a period of less than one year shall not be deemed to be an interruption of the period of service but the period of such temporary absence shall not be reckoned for the purpose of compensation unless the officer or servant was during such absence engaged in service in the National Army forces of Saorstát Eireann or any military forces serving under the authority of the First Dáil Eireann, the Second Dáil Eireann or the Provisional Government of Ireland or the British Army, Navy, or Air Forces, when the period of such service shall be reckoned and included in the period of service for the purposes of the Schedule.
The intention of this amendment is to meet the cases of a number of men who, during the troubled times and the slackness of work that prevailed then, were knocked out of employment. In some cases they were out of work for months. Some of them joined the Army, and afterwards went back into the service. More of them also got back into the service when the troubles ceased. The interval that they were absent during the shortage of work counts against them as regards the continuous service required under the Act. The object of the amendment is to try to remedy that grievance. There is also the case of a trade dispute that occurred. The men who remained away at that time and after a few months returned to their work without being victimised in any way, while they did not receive notice of dismissal during that period, yet when it comes to a question of dismissing them under this Act. that short period of service is counted against them.
This amendment is very peculiarly worded, because reading it superficially, it merely seems to cover people who are already covered by paragraph (b) which was moved to be deleted. However, it also covers people who were absent or out of employment for a period of less than one year, no matter what that absence was due to. The wording of the amendment goes further than I think the Deputy means, because as worded it would mean that if a man was retained in the service of any of the old companies for a single day in the year he would get credit as if he had served a year. At least he would not suffer any breach of continuity for being absent. It would cover also people out during the period of a trade dispute, and recognised casual or temporary men. Sub-paragraph (b) which this is intended to substitute, does cover people who were absent from service in the national forces or in any military organisation under the First or Second Dáil or the Provisional Government, or who were in the British Army, Navy or Air Forces. If there are to be any other interruptions of service which the Deputy seeks to have covered, then these interruptions should be specifically mentioned. I certainly would not accept an amendment so widely drafted as this one is. To accept it would simply mean that a single day's service in any one year would carry on the continuity of a man's period of service. The amendment is so widely drafted as to cover not only industrial disputes, but even the recognised casual or temporary men. I do not know if the Deputy meant the amendment to be so wide, but actually that is the force of it. If the Deputy likes to put up specific cases of interruption which he thinks should be regarded in the ordinary way, then these will be considered.
Is there any suggestion the Minister could make as to how the matter could be met?
I put it to the Deputy that as far as service in the national army or in military forces as already described, is concerned, cases which come under that heading are already covered, so that we should be in agreement on that. Does the Deputy want me to cover the cases of recognised casual or temporary men? I suggest that he does not.
Mr. DOYLE
No.
How far then does the Deputy want to cover people out in an ordinary trade dispute? If he wants that done, the first reaction towards it would be to say "no." Where the service had been interrupted by a trade dispute, then it is going to be looked on as an interruption, and will not count as continuous. If the Deputy can bring in cases of what I would describe in a general way as an ordinary trade dispute, and can apply to them any circumstances which would bring them out of that description, then we can get them considered, but the amendment must certainly be narrowed so as to exclude the ordinary temporary men. In so far as the amendment covers military men, I suggest that is covered already. If the amendment is intended to include all types of trade disputes I object to it entirely, but if there are exceptions to be made, I would like to hear of them.
There is one particular case that I would like to bring to the Minister's notice. It refers to the moulders who were out on a general strike in, I think, the year 1922. As far as my information goes none of these men were dismissed from the company's service. Consequently they returned to work without any victimisation. Apparently there had been no break in their service until a case arose in connection with amalgamation, when the period that they were out of work was apparently counted against them. That is the only point I wish to make on that. The only other point is in connection with short service. A number of men became disemployed owing to the trouble on the railways. The railway departments in which they were engaged were shut down for a short period. That was not due to any fault of the men or to the company. They returned to the service of the company, but the same thing applied in their case, that the short time they were out of work counts against them.
The Deputy has mentioned two distinct types of cases, one being the moulders' dispute, which, I understand was essentially an inter-union dispute, at least in its later stages, and is a thing that could not be covered by this. An interruption that might cause a lack of employment on the railways is a matter that we could discuss on its merits. If the Deputy could frame and bring in an amendment dealing with that matter and excluding everything else, it could be considered. What the Bill seeks to give compensation for is continuous service broken by reason of amalgamation, Some types of interruptions may be considered a reason to make an excuse for interruptions. We cannot make exceptions of all kinds of interruptions of service. If the Deputy can bring in an amendment which will be quite specific on the one point he wants to cover, then we can consider that on its merits on the Report Stage.
I will do that. I ask the leave of the House to withdraw the amendment.
Amendment, by leave, withdrawn.
Government amendment:—
In paragraph (d), line 45, page 4, after the words "such benefits" to add the words "and the officer or servant shall in addition be paid by the Amalgamated Company a lump sum equal to the total amount of the contributions paid at any time by the officer or servant to the Superannuation or Benefit Fund."
This refers to a point about which we have had so much discussion on the Second Reading. I then spoke of three funds, and I referred to one of them as solvent and the other two as insolvent. Payments were only made because it was on the guarantee of the Company and out of the resources of the Company, and only falling for payment if and when the resources of the Company permitted, that is, the guarantee by the Company was dependent on the resources of the Company being up to the claims. In order to get out of the difficulty that was obviously created by having what was described as provident and improvident men on the same plane, we want to put them on the same plane in another respect. We want to return to the provident man his contributions thereto, and in addition to that there will be the ordinary compensation. I stated in the Dáil that as there was no control by this House over the funds of these superannuation societies or companies, they could not be interfered with. What can be done is to state that compensation can be paid, and that in addition there should be made to the employees a return of their contributions. I spoke at that time of interest on contributions, and in so far as I did possibly lead the House to believe that the amendment I would introduce would include interest on contributions I would like to explain that matter.
All the funds have regulations providing for a surrender of contributions. Two of them make no provision at all with regard to interest on these contributions, but the third does. I look on this not as what could be regarded as an ideal amendment, but as a very fair compromise as between the various people and these various funds, and the circumstances in which they now find themselves. The new circumstances would be that in the case of the two bigger funds all this is to come from the resources of the railway companies. We lump the whole thing together, and say we return the contributions no matter whether they are to come from the general resources of the Company, or from some pool or benefit as yet unexhausted, as it would be in one case. Then we balance that by saying in no case will interest be paid. I put it to the House that that is a fair compromise, that if there is insistence on the interest point we will have to lump the whole thing.
The Minister has brought in this amendment with the object of returning to the people contributions they have paid towards these funds. I do not know whether the House understands the foundation principles of these funds. I certainly do not, but from what I have gathered in the House it seems to me that the proper attitude for the railways to have taken up would be to liquidate these funds, the various parties carrying the liabilities they would ordinarily be carrying in connection with the formation of the fund. It seems to me that these funds were founded as a result of an agreement made between the individuals who subscribed and the railway companies concerned. What their object was I do not know, except it was to encourage men in the employment of the companies to contribute to the funds which ultimately would be returnable to them. The position appears to be that one of the three funds is solvent and the other two, apparently, are insolvent. At the stage at which amalgamation took place I think that the two insolvent funds ought not to have been dealt with as if they were part and parcel of the railway amalgamation scheme.
The contributors to the funds are entitled to any legal claim they might have on the funds, and I think that is a continuing liability unless the funds are disposed of in the ordinary way that a fund would be. If, for instance, the men contributed for a series of years to an outside society or organisation, and ultimately that fund became insolvent the people responsible would have to go into liquidation, and the men would be entitled to get payment on the basis of their contributions, if anything. It does not seem to me to be quite a liberal settlement in this case. To return the money that has been paid for a long series of years without any recognition of liability on the part of the railway company is not I think sufficiently generous. I would ask the Minister whether the fund should not be dissolved altogether on the basis of the money being returnable, plus something additional for the use of the money for many years. It is true from what the Minister says that the railway companies would be called upon to pay the amount, but then we must recognise that the railway companies as individual companies entered the obligation with their eyes open, and the fact of amalgamation does not in any way relieve the individual railway from the responsibility it had undertaken. The return of the money is not in my opinion an adequate method of liquidating the fund. I think these funds should be dissolved straight away on a fixed basis, and interest should be given to the people on their contributions.
When I said the fund is insolvent I possibly used the wrong word. What I should have said is that two of the funds are unsound, and the rights of the contributors to these funds are not interfered with. What has happened is that under this proposal the Amalgamated Companies shall pay to the officer or servant a lump sum equal to the total amount of contributions paid by the officer or servant to the superannuation or other benefit fund, so that a man in any of these superannuation funds will have compensation, and will be paid by the Amalgamated Company this sum of money, and whatever be his fund he will have certain rights against it. It is impossible to argue, as the Deputy does, that you should dissolve certain funds. It is not possible to do that. Take the Railway Clearing House Fund. That was established by a British Act of Parliament. It is still in existence, and is not under the control of the amalgamated board, though the amalgamated board has representation on it. I think it would be quite wrong for this House to interfere in the sense of seizing hold of certain assets of any of these funds. We will all agree that two of the funds are unsound, and the third is solvent under two rather limited circumstances, but whatever be the position of these funds, whatever rights the men may have, whatever right to guaranteed payment they may have had will continue. There will be compensation paid, and, in addition, the Amalgamated Company will pay to the men who made some provision for the future an amount equal to the sums paid into the funds.
That makes the thing all the more complicated.
It makes it all the more general.
The Dáil in its wisdom decided, in connection with the amalgamation of railways, that people disemployed through the agreement were to get certain compensation. I claim that those who were connected with the fund for pensions had that right irrespective of the amalgamation, and their rights in that way should not be interfered with. If the Minister says that this fund will continue and these men will get all the benefits accruing to them from that fund, although they are retired, I say that is all right. What does the Minister mean by saying that if the fund is to continue the Amalgamated Company will give back the contributions? If the fund is still in existence the men would, apparently, have the same claim on it as if they had been retired. Perhaps the Minister will clear that matter up. If the rights of the men are to continue in regard to the fund, there is no reason why the Amalgamated Company should pay back anything.
I am curious to know what is behind the Minister's insistence on this matter. I wonder whether he is in a position to give us any estimate of the effect of the provisions in the Bill upon the Company's finances? If I understand the position clearly, it is that the number of people who will be deprived of something will be very small; that is to say, the number of people who will receive a sum of money in compensation, plus superannuation, over and above two-thirds of their salaries, is very small, indeed, but such as they are they must have served somewhere between 50 and 60 years in the railway company's service. But because there seems to have been in one or two cases what, in the mind of the Minister, is an injustice to the company, this very considerable complication—quite apart from any question of justice or equity—is being introduced into this whole question of superannuation and superannuation funds. The important fund, I understand, is the Railway Clearing House Fund, and that has its headquarters across the water. It is quite solvent and is not touched by the Act of 1923. Practically all superannuation is covered by that fund, and it has its own Act of Parliament and its own rules. It is managed independently and is not affected by any legislation that we can enact. Under the rules of that superannuation fund the staff who are retired can claim a refund of their contributions, plus compound interest.
No. not from that fund. In that fund there is no interest payable.
Then I am astray.
In connection with the B Fund, there is.
The Bill, as amended by the Minister, proposes to reduce the compensation payable by the company by the pension value of the superannuation fund repayment, and to make the company, not the fund, pay for the amount of the man's contributions without interest. The company or the arbitrator is expected to assess the value of the man's superannuation from an institution they have nothing to do with—from an institution which is managed in England and which is protected by its own Act of Parliament. The company has no interest in the management; it is only interested in so far as the fund is associated with its service. The arbitrator and the company are supposed to take into account a man's income from this independent institution. It should be recognised that though the company has to pay over to the retired man the amount of his contributions to the fund, the man still has his claim upon the fund. That is understood, I take it. Though the company hands over to the man who is retired the amount of his contribution to the fund, the man continues to have his claim on the fund.
Are you speaking of all the funds or only the Railway Clearing House Fund?
The Railway Clearing House Fund.
As between 60 and 68 years.
I am pointing out that the bulk of the men in the superannuation classes are members of this Railway Clearing House Fund. I think I am right in saying that about 200— 100 each—are connected with the other funds. The members of the Railway Clearing House Fund will receive the amount of their pension up to two-thirds; if it is to be made up by the amount of the members' contribution, each member will also have his right of claim of his contributions from the Railway Clearing House Fund. You have a curious complication. Especially is that so when you recognise the members of the other funds will be in a somewhat different position, as they will not have the same right of claim. These other two funds, as I understand the position, have less than 100 members each. They are closed to new entrants and have been so for some time. It may be that there are some particular matters connected with this fund that ought to be legislated about. I do not know what they are, but if it is so there should be some specific reference to the fund in question and so avoid mixing up the three funds, which are in a different category; two of them, at least, are quite different from the third.
Have both the other two funds been stopped?
I understand they have. I think we should not allow it to be thought that this term "insolvent" is accurate. The funds have closed, but they are solvent.
Through the liability of the railway company?
Yes.
The rules provide they shall be solvent. Now on this general question of the superannuation fund I would like to put the position as it appears to me, and that is that the contributor has been saving for a considerable number of years so that he shall be entitled to a pension when he comes to old age. If he leaves the railway service he is still entitled to provide against old age. The superannuation fund is no longer able to cover him because he is out of the service, and therefore, refunds his contributions to enable him to make other provision for old age. The fact that he has departed from the railway service renders impossible or difficult the provision for old age which would be secured automatically if he remained in the service. The fact requires to be taken into account, in assessing the compensation, that there is the less prospect of pension. If there is the loss of this automatic pension that ought to be taken into account when assessing the pension. Therefore it will add to the amount that he is entitled to, provided it does not reach more than two-thirds of his income. But it seems to me that any attempt to deduct from the compensation the present value of the prospective provision for old age is very like confiscation.
I can see no justification—because one or two or a half-a-dozen cases would seem to give to the pensioner or retired person who has served many years, an income over and above that which he received when in the service —why this whole complicated proposal of the Minister should be embodied in the Act. It is not worth it, at any rate. It is not worth suggesting that some injustice is being done, and I am very doubtful whether any railway director or railway manager has any belief that it is a just act to the railway employee. The Minister said he has provided this in the interest of the railway users, so that they should not be asked to run the risk of increased charges or something of that kind. I think the case of the Minister is that he is protecting the railway users. I wish the Minister would give us some estimate of what is possible— not what is certain—as a charge upon the railway companies of any provisions of the original Act in this matter.
It is impossible to give any calculation, but I can merely retort in the same general terms that the Deputy has used. He says there are several cases of hardship—men getting this double payment which they could not get under the English Schedule. There are 1,700 such prospective cases or such possible cases. I do not know how many of them will come up.
Men of long service of that kind?
Long service may make a difference. But there are 1,700 prospective cases of people who can be applicants for compensation and who can get payment of compensation and superannuation in addition.
took the Chair.
Yes, but the number of possible applicants who will be brought into the category of having so many years service, which would enable their compensation to be so high as to cover their salary, would be very, very small.
Very small?
If the Minister said a possible 17 applicants he would be nearer the mark.
Yes, possibly I might be a great deal nearer the mark, if I took a possible 17 cases in which the total compensation, plus superannuation, would exceed what a man was actually earning when at work. But I do not found my case simply on a man who is getting more for being idle than what he was getting when he was at work. I say that even if it is only an addition of £5 to his allowance that where he is going to get compensation, which is the provision against old age, and hardship, made by the Oireachtas with regard to this whole amalgamation scheme, and when that superannuation is not money drawn from the ordinary pool, built up by contribution, but coming out, in the great majority of cases, in possibly all but 50 cases, of the resources of the Railway Company, I consider that addition is unjustifiable. I say there are, at least, 1,700 prospective cases in which that might occur, even though the numbers in which the retired allowance, over and above what a man is earning, is likely to be very small. I do not suppose it would outrun a dozen. The Deputy has spoken of hardships and the immediate loss of superannuation. That is taken into consideration under the Act, and the provision against that in all cases was a maximum of two-thirds. If it can be shown to me that I was really bringing down what a man might get from superannuation alone, in other words if the compensation likely to be given to any man, under the Schedule, is going to be less than what that man would get from the superannuation fund, then a different point has arisen. But I assert, quite confidently, that that is not possible. In every case the compensation will be more than what a man could get from superannuation alone, and we took this compromise upon the matter. Besides, you cannot look upon this merely as insurance.
Would it apply to short service men?
Yes.
In every case?
Yes. The argument was about an insurance fund. If a man was paying into an insurance company and was going to draw something, irrespective of railway service, that is one thing. But why does a railway employee contribute to a superannuation fund rather than to an insurance fund? For this reason, that the railway contributes 2½ per cent. and the men 2½ per cent. to build up the pool of benefit from which the men draw afterwards. Then you have this recognised fact—Deputy Johnson does not like the word "insolvent"—while at least the superannuation funds, or two of them, are actuarially unsound, they are solvent in the sense that they pay, but they pay out of the resources of the company. I think that is a reasonable compromise, and that justice is being done to the men when you say to them: "You will have compensation looked after, and you will have consideration taken, though you cannot change and challenge, because it is outside your discretion." You have a balance as between those two, and in every case the company pays this addition that there is here—"A lump sum equal to the total amount of contributions paid at any time by the officer or servant to the Superannuation or Benefit Fund." I believe this is quite a sound and just settlement of the situation. The one point I was disturbed about was that I had led the Dáil to expect in every case there would be interest paid on the contributions. When I looked further into the matter, I discovered the funds did not allow, under the ordinary rules, of interest being paid on repayment of contributions.
Is that true of all the funds?
That is the A Fund and the Railway Clearing House Fund. With regard to the B Fund, interest is payable at the rate of 2½ per cent. If people do not regard as a just and equitable compromise the fact that the railway company is paying everything and that no interest would ordinarily be paid on these funds but that interest might be payable where a man is in the B Fund, we can look to that. Deputy Johnson talks about these funds that are outside our control. I did state in connection with the Clearing House Fund that the Clearing House was set up by a British Act which is still in operation, and it would be quite unfair to have any dealings and interference with these domestic funds. Account is being taken of what a man paid and what he would get from these funds. Then you have a balance. We are not interfering one bit more with that fund than what British legislation is doing, and it is not possible for a man to get two types of compensation, superannuation plus compensation under the British Act.
Amendment put and declared carried.
Question proposed: "That Section 4 as amended stand part of the Bill."
I think it is at this stage I should raise the question of "(ac)". The proposition is "where the compensation payable to an existing officer or servant is an annual allowance, such annual allowance shall not in any case exceed two-thirds of his remuneration and emoluments and subject to that over-riding limitation, shall not exceed an annual sum calculated at the rate of one-sixtieth of his remuneration." I take it that the position embodied in this amendment is to make it quite clear that the method of calculation shall be at one-sixtieth and not leaving it open—"not exceeding one-sixtieth." This is making the matter clear. There was a question raised on the earlier stages—
I had indicated on Second Reading that a distinction might be made in this. I do not know if the Deputy is aware of what it is exactly to be. Take the last word of line 5 and insert after the word "shall"—"in the case of an officer or servant whose services are dispensed with, be an annual sum and in the case of other officers or servants, shall not exceed an annual sum." I will get such a point brought in on Report Stage if that is what the Deputy is driving at.
Section 4 as amended put and agreed to.
Amendment 53 is not in order.
I think it is largely covered by amendment 8, so that I did not intend to move it in any case.
Question—"That Section 5 stand part of the Bill"—put and agreed to.
I move to delete Section 6.
Question put and agreed to.
I move:—
To insert before Section 7 a new section as follows:—
"The Third Schedule to the Principal Act as amended by this Act shall govern every claim for compensation under the said Third Schedule in respect of which the amount of the compensation was not fixed, either by agreement or by the standing arbitrator or arbitrators, before the 26th day of March, 1926."
If Section 6 is deleted from the Bill it will be necessary to provide a definite date on which the Bill operates, otherwise the parties will not know the position in cases that might arise before the Bill becomes law. The Dáil having accepted the view that the Third Schedule of the Railways Act did not fix a right basis for compensation and having approved amendments to that Schedule, the reasonable course would seem to be to apply the amended basis in all cases where compensation has not yet been fixed by agreement or arbitration. Where the compensation has been fixed no change will be made. Where it has not been fixed the amended basis would apply.
Is this in order in view of the deletion of Section 6?
I submit it is quite in order to have the amendments moved to fix the date of operation, even though you have taken out the clause which made it completely and entirely retrospective.
I rule the amendment in order.
This is a matter to which the Dáil ought to give a considerable amount of attention. I think it is allowable to contrast the three amendments which are before the Dáil in this regard so as to get some clarity on the matter. The point is, it was not considered right to have this Act apply retrospectively and the question is where does it begin to operate? What is going to be its time of limitation? There are three amendments. Deputy McGoldrick states the Third Schedule is amended by this. That is to say the new method of assessing compensation shall govern every claim for compensation, "under the said Third Schedule in respect of which the amount of the compensation was not fixed either by agreement or by the standing arbitrator or arbitrators before the 26th day of March, 1926." In other words, the retrospective side of it is limited to cases where there had not been agreement. That agreement might have arisen in either of two ways— either by agreement or by the arbitrator. If that amendment be accepted it means that every case will be ruled by the new Schedule or the Schedule as amended by this Bill, excepting only those cases where they might have arrived at a settlement either by agreement or by the arbitrator having given a decision. That is one stage. Take Deputy Doyle's amendment, which reads:
"The provisions of this Act shall not apply to any claim for compensation in respect of which any dispute or question shall have arisen between any officer or servant and the amalgamated company and in which such officer or servant shall have appealed to the standing arbitrator or board of arbitrators under the provisions of paragraph (8) of the Principal Act prior to the passing of this Act."
Deputy Doyle's amendment says that the amended basis of compensation shall not apply to cases where the dispute or question had arisen, and where an appeal had been lodged before the passing of the Act. That is a date still uncertain. If that is accepted, of course all sorts of appeals can be lodged now.
That would not do.
That would not do. Deputy Doyle's amendment would not be so far-reaching if it were amended to read—"Prior to the 26th March"—the date of the introduction of this Bill. I think it will be obvious to the Dáil that you cannot possibly have Deputy Doyle's amendment as it stands, because it would allow appeals being lodged at any time before the passing of this Act, and those would all have to operate on the basis of the old Third Schedule. If Deputy Doyle's amendment were further amended to make the last words read "prior to the 26th March"——
Would the Minister follow the precedent that was set yesterday in connection with the Rent Restrictions Bill? That, I think, comes into operation from the date of the lodgment of the Bill. I think the same thing would apply here and would cut both ways in connection with any appeals that were pending. They would have to take their chances on the basis of the new regulations in connection with this Bill.
Deputy Hewat would seem to me to be in favour of Deputy McGoldrick's amendment. I want to put four positions, because there are really four positions put forward in the three amendments before the Dáil. Deputy McGoldrick's amendment I have explained. Then there are Deputy Doyle's as it stands, and Deputy Doyle's with an amendment, if Deputy Doyle were to accept an amendment, to make it read "prior to the 26th March." The position then would be that if there had been a dispute or question arising and an appeal lodged before the 26th March, it would be dealt with by the old Schedule. Deputy Davin has given notice of an amendment which reads:—
"Every claim for the payment of a gratuity or of compensation arising under the Third Schedule to the Principal Act shall be determined by the amalgamated company or on appeal by the standing arbitrator or board of arbitrators in accordance with the provisions of the said Third Schedule if the event giving rise to the claim occurred before the passing of this Act or in accordance with the provisions of the said Third Schedule as amended by this Act if the event giving rise to the claim occurs after the passing of this Act."
Deputy Davin's amendment refers again to the passing of the Act and the event giving rise to a claim occurs before. In other words, it is much the same as Deputy Doyle's amendment, because if the event occurred the outward sign of that event having occurred will be the dispute arising, and an appeal lodged. In my opinion, Deputy Doyle's is much more acceptable than Deputy Davin's, because it depends on an appeal having been lodged, and that is something definite on which we can go.
The Minister realises that a great number of cases have been in abeyance awaiting decisions of the arbitrator, and the arbitrator has not been acting—I will not say because of what. When decisions were awaiting on the arbitrator, other claims in the same category were allowed to remain in abeyance, so that you would be doing wrong to a very large number of people if the phrase "if the event giving rise to the claims occurred before the passing of the Act," is intended to cover these people.
Whatever way this affects people outside, this is the whole principle that was in the minds of members of the Dáil when passing the Second Reading of the Bill. I have no hesitation in saying that were it not for the fact that decisions had been taken already, and were it not that we were against the principle of upsetting them, and making it a retrospective measure, the Bill would have been carried with the retrospective clauses in. It was because we did not want to upset these decisions that the retrospective clauses were struck out. Were it not that we thought it would be a bad principle, and that we did not want to establish such a bad principle, the retrospective clauses would have been passed.
The Deputy's view is that the opinion of the Dáil was against upsetting decisions already given?
Yes.
Deputy McGoldrick's amendment is designed to follow on that. I have given my explanation as to the force of these amendments. I presume that the widest amendment will be taken, as it is clear if Deputy McGoldrick's amendment were carried no other amendment would be moved.
We will take the discussion on the three amendments.
I think if you put Deputy McGoldrick's amendment it would settle the whole thing right away.
It may, but you are not moving down to it by stages; you are simply taking a decision on one. If the ordinary practice is followed, where you have an amendment of a fairly wide ambit, and others of a narrower scope, the widest one will be taken. It seems to me that Deputy Davin's is much the widest. If the Dáil is prepared to have a vote on Deputy McGoldrick's amendment that would satisfy me.
I suggest that we might decide the principle that underlies these two amendments. I would like to say that I entirely agree with what Deputy McGoldrick has said in this matter. Deputy Johnson says that decisions have been held up. Probably that is the case. They have been held up because it practically amounts to this: that appeal has been made to the Dáil, through the medium of this Bill, as to what was the right course for the arbitrator to adopt. Whether it is right or wrong, it seems to me that discussion has gone on the lines that the Dáil does not agree with the arbitrator in decisions that have been come to, but it is satisfied to let these decisions stand as far as they have been arrived at. But I think the Dáil, through the medium of this Bill, asks that the principles involved in the amending Bill would be adapted to all cases where decisions have not been come to. That is my interpretation of the discussion that has taken place in the Dáil. If that is so amendments that go to upset that idea cannot be accepted by the Dáil. In other words, the far-reaching amendments would seem to me to carry the old Bill without amendment into operation longer than the amending Bill indicates. I think the Dáil should not have much difficulty in deciding that their intentions are as provided by the Principal Act. All cases under ordinary circumstances would be justly dealt with in this way. Where cases have been decided, the Dáil should let those stand.
When the Dáil discovered that wrong would be done by the legislation passed by them, and when it decided to provide against the possibility of such a wrong being continued, a new amending Bill was brought in here and accepted by the Dáil. In its original form, it proposed to apply retrospectively to any wrongs done under the old Act. When objection was then raised towards the retrospective character of the legislation and when we decided then to abandon it in so far as it was retrospective, I think it was our duty to come down at the earliest possible moment. The date I have proposed in my amendment is the date of the introduction of this amending Bill. I propose that any compensation fixed before that is not to be interfered with, but that compensation fixed subsequently to the introduction of that Bill is to come in under the Third Schedule of the new Act. Deputy Peadar Doyle proposes that not alone will the cases already definitely decided be allowed to escape this new schedule, but also those cases that are under appeal to the arbitrator under paragraph 8. I assume that that would give a wide field to many people to bring themselves outside our jurisdiction in this new amending Bill. I think if the Dáil wants to stand firm on a sound principle it should let the hammer fall at the earliest moment.
The position which the Deputy and the Minister desire the House to take seems to be this:— The Oireachtas passed certain legislation. That legislation, in the ordinary course, is interpreted by an arbitrator or court. The railway company thinks that it would be possible, by making representations, to persuade some future Legislature to alter the law in its favour. In the meantime, the rights of citizens under the existing legislation are held up by the action of the Railway Company. During that period of suspense new legislation is brought in, the effect of which is to alter the existing statutory rights of citizens. Deputies desire that we should put into this new legislation provision which would deprive the citizen of those rights which we gave to him by previous legislation. The exercise of those rights was frustrated by the Railway Company, in view of the possibility of getting new legislation in their favour passed. You may not be legislating retrospectively to affect a decision of the courts already made, but you are certainly legislating to deprive citizens of the rights which they have under existing legislation.
It is as much as to say, if you were dealing with penal cases, that you are going to make an offence of an act which was not an offence prior to legislation being passed. That is prohibited specifically in the Constitution—that you cannot legislate to make illegal acts which were legal at the time they were committed. We propose now to say that we shall legislate to deprive citizens of their rights under the existing legislation anterior even to the passing or introduction of this legislation, inasmuch as the Railway Companies deliberately held up decisions which applicants were entitled to have under that Act. The proposal in the Deputy's amendment, of course, is going to deprive this very considerable number of men of the rights which we as a Legislature granted to them in the old Act of 1924.
There is one point that I wish to make in supporting the amendment which stands in my name, and which is opposed to the amendment by Deputy McGoldrick. I endorse all that Deputy Johnson has said against Deputy McGoldrick's amendment. A number of claims have already been made, and the method adopted is that these claims have been handed in, in groups. In some cases these have been taken up in alphabetical order, and dealt with by the arbitrator. A and B make application together. A is dealt with already, and compensation is given to him. B has not been dealt with yet, and consequently no decision has been come to in his case. If the amendment proposed by Deputy McGoldrick is passed, it will affect this case. That is my opinion, and consequently I could not accept it. The Minister has made a suggestion about accepting an amendment to my amendment and to add the words "prior to 26th March." I think that meets the case in some way, and is better than the amendment of Deputy McGoldrick.
I take it that Deputy McGoldrick's amendment has been moved?
I think Deputy Gorey very fairly expressed on Second Reading what is the opinion of the Dáil. But I think that was because there was a certain point of view possible, a point of view which arises here that was not before the House at the time. My final view on this point would depend upon the answer to this question—Is it possible that cases have arisen in which services were dispensed with by consent, that consent being obtained because a certain view was held as to the meaning of the Principal Act, or, secondly, that services were dispensed with when protest might have been made, but that protest was not made because of the view held as to the meaning of the Principal Act? I wonder could the Minister tell me if it is possible that such cases could have arisen. If these cases are possible it seems to me that the passing of an amendment, in the form in which Deputy McGoldrick has moved it, would make the Bill just as retrospective as if we kept in Section 6.
Could cases have arisen in which the employee had consented to receive some scale of compensation, in view of the Principal Act?
Yes, consented to have his services dispensed with, believing that he would get compensation, which compensation he will not now get.
"Which compensation he will not now get"—I do not think that that is possible. I know this, that a certain railway employee circularised Deputies, and he stated bluntly in his memorandum that if he had known he was not going to get both compensation and superannuation, he would have objected to the change in his position, and would have continued his railway work to this day. Personally, I have no sympathy with that man.
I did not get that circular.
I could not say off-hand, but I think it is most unlikely that there is any case such as the Deputy has mentioned—an employee consenting to be dispensed with in view of the compensation to be given to him under the Principal Act, a fraction of which he would now be deprived of. I do not know of any case of that kind, but I will have it examined.
I mentioned also about the possibility of his not making a protest.
There would be more likelihood of that case than of the other.
The Minister will admit that that would have a retrospective action, harmful in the same kind of way as the original provision.
As under Section 6?
Yes.
No. There is the distinction that Deputy Gorey drew attention to. What was objected to by the Dáil clearly and definitely on the Second Reading? It was the upsetting of decisions. I hold definitely that if you are going to take any other point of view than that there is not a great deal of difference in principle between any of these amendments. But I see a tremendous amount to be said from that point of view for Deputy Davin's amendment. Consider what it means. If "the event giving rise to the claim" were to be admitted, if you had the Third Schedule in operation even for a day, every man could date back the event giving rise to the claim to that period. What is the event giving rise to any claim? It is the result of amalgamation.
Dismissal.
It might be a lot of things besides dismissal. But what is at the back of any of these things? It is the result of amalgamation. As long as you had the Third Schedule operating for a day, if you accepted the principle at the back of Deputy Davin's amendment—the event giving rise to the claim—I do not see how you could have any railway employee whose case would not have to be considered under the new Schedule rather than under the old Schedule. I can hardly conceive a case in which a claim could not be made by a man, that the fact that amalgamation was going to have an impact on his employment was so long present —though its ascertainment lagged a little—that he would come under the old Schedule. I do not see the use of this amending Bill if Deputy Davin's amendment is to be accepted.
The Minister may disabuse his mind of the thought that the event giving rise to the claim refers to the passing of the original Act or to the existence of the Third Schedule. An employee is told that he is no longer required or that he is transferred to a new post. That is the event that is suggested here. If that event occurred before the passing of the Act, whether the actual formulation of an appeal was carried out or not, it is that event which Deputy Davin has in mind. Surely, if the original Act gave any rights to the employee at the time of such an event, those rights ought to be secured to him. That right includes compensation under the provisions of the original Act.
Whatever may be in Deputy Davin's mind I am only pointing out the logical conclusion. If there is any basis on which this is founded at all, it must mean, not simply the time at which something happened, but what was the thing? It must have happened by reason of amalgamation if it is anything that gives rise to compensation at all. Deputy Johnson might as well argue—or anybody with Deputy Johnson's point of view might argue—on these lines: Of two men, one views the thing in retrospect six months afterwards. Both have been dismissed. One was dismissed a month before the other. But the reasons for their dismissal were inherent in the Bill the day it was passed. Actually you do not arrive at A. until six months after the Railways Act of 1924, was passed. You do not arrive at B's case until three months later. So far as those two men are concerned, I can see a series of arguments put forward under Deputy Davin's amendment, that they are really in the same boat. The matter that caused their dismissal was amalgamation. The effect of amalgamation on B occurred a little later than it did in the case of A. Are you going to penalise B because the Railway Company—we always have to look at the Railway Company as the malevolent entity—deferred going into B's case until three months after A's case? I do not see any difference in principle in the cases. I do not see where you are going to stop at the pleadings under Deputy Davin's amendment.
The event giving rise to the claim is one thing. But why stop short at that? If six men happened to be dismissed and there are five others in the same grade who did not happen to be dismissed at that particular date, but for whom the future holds dismissal, you might as well put them all into the same position. Deputy Johnson's argument, I understand, was—I was not present when it was made—that they really all had a sort of right accruing to them the moment the Third Schedule was passed. The Dáil must come to some determination. There are three periods. There is Deputy Davin's period—the event occurring before. There is Deputy Doyle's—the dispute having arisen and the appeal being lodged. There is Deputy McGoldrick's —the amount having been fixed. There are these three proposals for the choice of the House.
I was not arguing in favour of Deputy Davin's amendment or of any amendment. I was simply putting to myself the question whether it would be possible for Deputy McGoldrick's amendment to do some real injustice to somebody.
Perhaps I might suggest a clearer form for Deputy Davin's amendment than that which is before the House.
Deputy Davin's amendment is not before the House.
It might be better if Deputy Johnson would move Deputy Davin's amendment.
I do not propose to move it at this Stage.
Perhaps Deputy McGoldrick would state whether he is proceeding with his amendment?
I will consult Deputy Davin as to putting his amendment in improved form so as to give effect to what I believe is really in his mind.
I presume we are discussing amendment 26 now.
If amendment 26 were carried, amendment 27 would fall. It might be better to put amendment 27 first.
I am inclined to accept the suggestion of the Minister. If it would meet the case better, I would leave over my amendment for the Report Stage, so that a new amendment could be introduced on the lines suggested by the Minister. I am quite prepared to do that.
What is that?
You said you would accept that.
Is the Deputy putting it to the House that I said I would accept his amendment if "the 26th March" were put in instead of "the passing of the Act"?
I understood the Minister to say that he would accept it in preference to any of the others.
No. I go down on a descending scale. I do not like Deputy Davin's amendment at all; I did not like Deputy Doyle's amendment as it stood, but I would view it with a little less dislike if he changed the words "passing of the Act" to "the 26th March." I hold that the amendment that should be carried is Deputy McGoldrick's.
If Deputy McGoldrick's amendment is carried it will knock out the appeal cases that have already been lodged but not considered.
It would, yes.
And all those which have been held up by the arbitrator's retirement.
Is that a fair proposition? Take the case of two men who had the same service and who became redundant. The claim of one is decided, and although an appeal is made, the other is not decided. Has such a man not got a grievance?
I simply go up the scale again with Deputy Doyle. He makes the distinction between two men having the same kind of case, one of whom has lodged an appeal and got an award, and the other has lodged an appeal and has not got an award. Then I go further; I take a man who lodged an appeal in the same circumstances but who was a day late with the appeal. Then you might have to go a stage further and take two men, one, who has lost his appeal, and the other, whose case has not come on yet, but who will be affected by amalgamation. You must have finality somewhere, and I put it to the House that the finality should be the amount of the compensation having been fixed.
Surely the Minister must agree that finality should mean that the law as it stands protects the citizen, and that until the law is altered the citizen has a right to the protection of the existing law. The Minister now says that there must be finality, and that the finality should be some date anterior to the passing of a new enactment.
I make the point that where a man has his rights established by agreement, we are not going to interfere with him, but where it did not occur by a decision of the arbitrator, it is open to us to review what was a bad and unjust schedule.
To throw some light on this, will the Minister say how long it is since the court decided any question—how long is it since the court existed?
That date must be back at least a month, I do not know.
I am not satisfied on one point; Deputy Johnson has raised a point on which I am not quite clear. Deputy Johnson alleges that it was foreseen very soon after the passing of the Railways Act that unfair or wrong decisions would be given, and that consequently there was a set policy of preventing cases from reaching arbitration or decision.
I did not say "unfair or wrong decisions." I said decisions which the railways company disliked.
May I interrupt, because this kind of comment gets badly reported. Nobody has yet said unfair or wrong decisions, but decisions which the arbitrator was compelled to take by the old schedule, and which have, in fact, worked injustice.
That is true. That is what I really meant. As far as we have envisaged it, the bringing in of a Bill to rectify the method casts the aspersion that the method was not right, and that unfair decisions were given. They were not unfair in law, because they had legislation behind them, but it is alleged here that this was not fair, owing to an oversight, that we had not exactly seen what was likely to be the outcome of this legislation, and that there was a demand that there should be fixed decisions. I am not sure whether that is true, whether any policy was followed at any stage to prevent the people who would have fixed decisions, saved from the Third Schedule of the Act. If so that would influence me. I would be more or less inclined to agree with the proposal in Deputy Doyle's amendment, that if they are so prevented from reaching decisions which they could have had, as far as they themselves are concerned, I think it would be wrong for us to penalise them, and that if they were on the road to that, we should allow them to get there. I do not know whether that is true or not. Deputy Johnson has alleged it, but I do not know whether it is admitted on the other side. But if it is true, it would have an effect on my decision, and I would be inclined to have them put in the same position as those who have had their compensation fixed.
I am sure the Deputy will agree that we should have something more than a mere statement that people were so prevented. We should have some evidence.
The basis of the whole thing is that decisions have been arrived at which are questioned by the introduction of this Bill. In my opinion, the introduction and passing of this Bill declares the arbitrator's decisions, in certain cases, were not decisions intended by the Dáil. Otherwise there is no need for an amending Bill. A request is now made that having agreed, where a decision has been come to, that we are not going to make it retrospective, are you going to put the arbitrator in the position of repeating decisions which you say by this amendment are wrong decisions? It is quite true that you may have cases where a man gets a decision to-day which would not be the same as he would have got yesterday, or the day before. That is exactly what is happening in all legislation which varies the law under which an arbitrator or judge acts. It is unfortunate but inevitable, and no fixing of a date to try to include other people will balance the rights and wrongs between the two sides. You must take some date if the decision the Dáil is coming to now is to come into operation. No date you fix will suit everyone, and you must base it on what the Dáil intended to do in connection with the original Act.
I think the matter will have to be discussed again. My contention is that the law that existed, and that does exist, as embodied in the Railways Act, 1924, gave railway servants certain rights in certain circumstances. These circumstances have arisen and claims have been made. In some cases claims have been formally placed before the arbitrator, and in other cases they were withheld pending decisions, the circumstances being identical and the rights under existing statutes being also identical. It is now proposed to say that the rights that existed did not exist.
Based on the arbitrator's interpretation?
The arbitrator's interpretation is the law, and it is quite gratuitous and absolutely uncalled for to say that the Dáil did not intend this or that. A Deputy who voted one way or another may not have intended, but the Dáil did intend this, because it is embodied in legislation. That must be the presumption.
Then why the amending Bill?
Because the Minister has changed his mind. If we do not assume that what is in the enactment is what the legislature intended, then there is an end to all proper conduct of cases in the courts. We have laid it down time and time again that what the legislature intended is embodied in the Act and the judges have to interpret accordingly. There is no use in going back and saying: "We did not intend to do so and so." You may say that the existing law is unsatisfactory, or unjust, or does harm to people, and you may then propose a new enactment but you cannot go back and say "We did not intend that," and therefore the rights which are embodied must be withdrawn.
May I refer Deputy Johnson to the Rent Restrictions Bill which was discussed this week where exactly the same thing applied. Admittedly there was a flaw in the Act and we were discussing the whole position, with the object of righting what was considered a flaw.
This legislature may consider it a flaw. It may consider it a flaw to say that a man should be hanged for murder, but that is the law, and the people, whether in criminal legislation or in civil legislation, have a right to be protected in what the legislature has given them as civic rights. There is not any very big distinction between retrospective legislation which deprives a man of something he has got by the judgment of the courts and something he had where the courts did not intervene. It is retrospective legislation whether he has had a judgment of the court in his favour or not. You are depriving him of rights which he had before the new legislation was passed. That is retrospective legislation.
Taking the case that Deputy Johnson has instanced, if a man was hanged before a new law came into force it could not be gone back on. But supposing the man was to be hanged the day after the passing of the Act would you still hang him?
The Deputy realises quite well that if the criminal law said a man must be hanged, no exception could be made to that judgment. The man exists; he lives; a new enactment takes place; therefore the man is free. The Deputy has proved my case. Deputies may talk about the intentions of the Dáil but, just as the judges have to interpret legislation that exists, so the Dáil ought to consider that the rights they granted to the citizens in previous enactments, those citizens ought to be protected in.
Is Deputy Doyle accepting the suggested amendment?
Deputy McGoldrick has withdrawn his amendment.
No.
I will put Deputy Doyle's amendment, No. 27, as it stands.
Mr. DOYLE
Am I to understand that the Minister is not accepting his own suggestion by adding to the amendment the words "prior to 26th March, 1926"?
I agree that that would take a certain amount of evil out of it, but as an alternative to amendment 26 I do not consider it desirable.
Amendment 27 put and declared lost.
Amendment 26a not moved.
I have already moved amendment 26.
Amendment put.
The Committee divided: Tá, 39; Níl, 13.
Tá.
- Earnán de Blaghd.
- Thomas Bolger.
- Séamus Breathnach.
- Seoirse de Bhulbh.
- Próinsias Bulfin.
- Séamus de Búrca.
- Bryan R. Cooper.
- Máighréad Ní Choileáin Bean Uí Dhrisceóil.
- James Dwyer.
- Pádraig Mag Ualghairg.
- Patrick J. Mulvanny.
- Martin M. Nally.
- John T. Nolan.
- Michael K. Noonan.
- Peadar O hAodha.
- Seán O Bruadair.
- Parthalán O Conchubhair.
- Máirtín O Conalláin.
- Eoghan O Dochartaigh.
- Patrick J. Egan.
- Thomas Hennessy.
- John Hennigan.
- William Hewat.
- Connor Hogan.
- Liam Mac Cosgair.
- Séamus Mac Cosgair.
- Patrick McGilligan. Seoirse Mac Niocaill.
- Liam Mac Sioghaird.
- Séamus O Dóláin.
- Pádraig O Dubhthaigh.
- Eamon O Dúgáin.
- Donnchadh O Guaire.
- Domhnall O Mocháin.
- Seán O Raghallaigh.
- Máirtín O Rodaigh.
- Seán O Súilleabháin.
- Caoimhghín O hUigín.
- Liam Thrift.
Níl.
- Seán Buitléir.
- Louis J. D'Alton.
- Séamus Eabhróid.
- Osmond Grattan Esmonde.
- David Hall.
- Tomás Mac Eoin.
- Risteárd Mac Fheorais.
- Liam Mag Aonghusa.
- Tomás de Nógla.
- Aodh O Cúlacháin.
- Eamon O Dubhghaill.
- Peadar O Dubhghaill.
- Domhnall O Muirgheasa.
Tellers:—Tá, Deputies McGoldrick and Dolan. Níl: Deputies Corish and Nagle.
Amendment declared lost.
PROPOSED NEW SECTION 7.
The following amendment stood in the name of Deputy Norton:—
"Before Section 7 to insert a new section as follows:—
(1) The standing arbitrator or board of arbitrators shall have power to administer oaths or take the affirmations of the parties and witnesses appearing, to make such interlocutory orders by way of discovery as can be made by a judge in an action in the High Court, and to award costs in his or their discretion and direct to and by whom and in what manner these costs or any part thereof shall be paid. All such costs shall at or after the appeal be referred for taxation to the same officers and in the like manner and upon the like scale as the costs of an action tried by a judge of the High Court.
(2) The parties and all persons claiming through them respectively shall, subject to any legal objection, submit to be examined at the appeal on oath or affirmation in relation to the matters at issue and shall, subject as aforesaid, produce before the standing arbitrator or board of arbitrators all books, deeds, papers, accounts, writings, records and documents within their possession or power respectively which may be required or called for, and do all other things that the standing arbitrator or board of arbitrators may require.
(3) The standing arbitrator or board of arbitrators may at any time correct any mistake or error in an award arising from any accidental slip or omission.
(4) The standing arbitrator or board of arbitrators may state an award, as to the whole or part thereof, in the form of a special case for the opinion of the High Court, and may at any stage of the proceedings state in the form of a special case for the opinion of the High Court any question of law arising in the course of the proceedings and any party may appeal to the High Court from any refusal of the standing arbitrator or board of arbitrators to state a special case.
(5) Any party to an appeal before the standing arbitrator or board of arbitrators may sue out a writ of subpoena and testificandum or a writ of subpoena duces tecum, but no person shall be compelled under any such writ to produce any document which he could not be compelled to produce on the trial of an action.
(6) Any award of the standing arbitrator or board of arbitrators may, by leave of a judge of the High Court, be enforced in the same manner as a judgement or order to the same effect.
(7) The standing arbitrator or board of arbitrators shall sit in open court; and every appeal shall be entered in the ‘Legal Diary' for hearing at such time and place as the standing arbitrator or board of arbitrators may determine."
While this amendment is technical it really deals with a simple question. As I understand, there are certain enactments which are applicable to Great Britain but are not applicable to Ireland, dealing with the position and authority of a board of arbitrators. Because of the non-application to Ireland of that Act the position of the arbitrator under the Railways Act, 1924, is that he has no power of any kind to act as a court. The consequence is that any decision of the arbitrator, to be enforceable, must go through the process of application to the courts over and beyond the arbitrator. I do not think that is intended. I think it was intended in setting up the arbitration board that the arbitrator would have the powers of a court, for instance, the powers to administer oaths, compel the attendance of witnesses and so on, and that when a decision has been made by an arbitrator, that that decision was enforceable at law. The omission has resulted in this, that when the railway companies have sought to delay or not put into operation the decision of the arbitration board that application has to be made to the courts to see that the judgment will be enforced. The object of the new section is to give the arbitrator powers of a court and to do in respect to this arbitrator and this arbitration board what is done in respect to all such statutory arbitration authorities under the British law. I am not sure whether it is a designed omission or not. I do not think it is, but I have no doubt we will hear the Minister's views on that point.
I wonder would Deputy Johnson, before we go on to discuss the merits of this, state if it has come to his knowledge that the arbitrator has been found deficient in any of those powers or that there has been any embarrassment or hold-up by reason of the arbitrator not having sufficient powers?
I think the case that has been referred to here, where a decision was made by the arbitrator, was one, I think, where in the case of a person named Kearney, he had to go to the court before he had power to say that this decision of the arbitrator was a judgment. In the absence of the judgment of the court the ruling of the arbitrator would have no effect whatever, and it was therefore necessary to go to the court to get a direction from the judges that this decision had to be enforced.
Who went to the court?
The applicant who had got the judgment.
If that is the case on which the amendment is based there is very slight foundation for it.
I cannot say that. I am putting that forward as an illustration. I believe the powers sought in this amendment are in fact the powers of administration courts generally under British statutes. That statute does not apply to Ireland, and it is by that defect that an arbitration board under the Railways Act was noneffective.
It is the particular case that the Deputy refers to that seems to be involved. What was litigated was the men's right to superannuation. Apparently the case must have been made when the railway company thought themselves entitled to take the arbitrator's decision and not to subtract from the superannuation; but having set out to pay the amount awarded by the arbitrator, not to pay in addition the superannuation, what was taken into account in court was the man's right to superannuation.
Was it not the decision of the arbitrator?
No. That was only referred to in the statement of the case. There was no point in the arbitrator's decision that had to be argued. The arbitrator's decision is final, and I do not think that there has been any failure to meet his award. I do not know whether the Act of 1894 applies here but, whether it does or not, there are sufficient powers to make arbitration a definite method of approach for the solution of certain problems, and to make the arbitrator's decision definitely binding. This amendment, in effect, says that there is no longer to be arbitration and that it must be substituted by an action at law. It would change the whole scope of the Third Schedule and would go right to the root of the Bill. The whole procedure under the amendment provides for an action at law which in itself would be very expensive. If there were any case in which it was proved that the arbitrator's powers were deficient, there might be reason for this amendment, but the single case to which Deputy Johnson has referred had nothing to do with the arbitrator's decision or failure to enforce it.
I admit that I have not the case fully before me, but I understand that what is sought in this amendment is to give the same authority to the arbitrator under this Railways Act as is exercised by the arbitrator under the British Act, and the difference between the two authorities lies in the fact that the Arbitration Act, which is in operation in Great Britain, does not apply to Ireland, and that therefore there are some defects in the powers which the Board exercises. Perhaps the Minister could take legal opinion on this question and allow the matter to stand over until the next stage.
I could, on the assumption that it is still regarded that questions that will arise in connection with amalgamation are likely to be questions of fact which are proper for arbitration and not for an action at law.
Certainly.
The only point then to ascertain is, how far the arbitrator under the tribunal has sufficient powers to carry out his decisions in the same manner as a court of law. I understand the Deputy to say that the section corresponding to this is not in the British Railway Act.
It is not necessary in the British Railway Act because the powers of the Arbitration Act are exercised by the arbitrator in England.
Then it is only a question of how far the British Arbitration Act of 1894 has any effect on the arbitrator's position here. We could get that position examined. In that event the amendment might be withdrawn, but it could be moved on Report Stage when we have had the position examined.
Amendment not moved.
The next amendment, No. 29, is not in order.
I submit that the method and time of payment of compensation dealt with in Amendment 29 are in accord with the general purpose of the Bill, which is entitled "An Act to make better provision for the compensation of officers and servants of railway companies." Surely when we are dealing with the amount of compensation, and with the method of computing such compensation, it is in order to deal with the method and periods of payment of that compensation.
The amendment is outside the scope of the Third Schedule.
I move:—
Before Section 7 to insert a new section as follows:—
"No Stamp Duty shall be payable in respect of any determination, award or agreement made by the standing arbitrator or board of arbitrators or by any court or by voluntary agreement or otherwise howsoever under the Third Schedule to the Principal Act as originally enacted or as amended by this Act."
There is felt to be an undue burden upon recipients of compensation in these cases by the imposition of stamp duties which amount, I understand, to quite a considerable sum. It is thought that there was no intention when passing the Act to impose stamp duty upon the recipient of compensation. Therefore I ask that that shall be specifically exempted in future.
Again, I submit this is really an amendment to the Act and not to the schedule. Sub-section (4) of Section 9 of the Act states that no stamp duty shall be payable in respect of any amalgamation or absorption scheme. That has the effect of exemption from capital duty or transfer duty which would have been chargeable under the Stamp Duty Act in the absence of such a provision. It appears to be reasonable in the case of awards made to officers under the provisions of the Third Schedule, consequent upon the amalgamation or absorption referred to in sub-section (4) of Section 9 that they should also be exempted. This, I think, will have to stand over for further drafting. Would the Deputy indicate whether this would meet with his approval: "No stamp duty shall be payable in respect of any determination or award made by a standing arbitrator or board of arbitrators under the Third Schedule to the Railways Act as originally enacted or as amended by this Act, nor in respect of any agreement entered into with reference to the subject matter of the said Third Schedule as originally enacted or amended"?
That is what is intended.
I want to have even this suggestion considered further by the draftsman to see if it is in order. If so it can be further discussed on the Report Stage.
In the circumstances I ask the leave of the House to withdraw the amendment.
Amendment, by leave, withdrawn.
resumed the Chair.
Section 7 agreed to.
TITLE.
An Act to make better provision for the compensation of officers and servants of railway companies who lose their employment or suffer other loss or hardship solely in consequence of the amalgamation and absorption of railway companies effected by or under the Railways Act, 1924, and for that purpose to amend the Third Schedule to that Act.
I move Amendment 32:—
To delete the word "solely."
Amendment put and agreed to.
Title, as amended, put and agreed to.
The Dáil went out of Committee.
Bill reported with amendments.
When is it proposed to take the Report Stage?
There are a few matters to be brought up on Report. I will have a few brought up myself. Amendment 28 is definitely to come up again on Report. As to some of the others, I am not clear about them. I understood Deputy Johnson to say that Amendments 30 and 31 were both withdrawn.
Yes, I think so. They were dependent on a proposal to Section 4.
That, then, would limit the matters that are to be brought up on Report. The suggestion that I have to make with regard to (ac) on page 4 of the Bill will be something that will attempt to meet Deputy Johnson's points as regards (ab) on page 3. I think these were the two main points dealt with. Deputy Doyle intimated that he would bring up an amendment particularising certain interrupted services. He wants to have certain interruptions in service disregarded for the purposes of continuity.
There is also the matter dealt with in Deputy McGoldrick's amendment. In respect to that there will be an amendment put forward on Report. There is just one other matter I wish to refer to. Would the Minister take note of a complaint that has been made to me which, I think, suggests some unfair advantage that men who were dismissed as redundant and who have made claims for compensation—I cannot say at what stage these claims were made, whether they are decisions of the arbitrator, or what stage they may be in—are being offered re-employment on condition that they should sign a form waiving all claim or rights under the Railways Act. It is a method of employment that seems to me not to redound very much to the credit of the railway company.
Fourth Stage ordered for Wednesday, 26th May, 1926.