I understand that the Bill is being recommitted for the purpose of the amendments. Amendments Nos. 1, 3 and 4 are related.
Shops (Conditions of Employment) Bill, 1937—Recommittal.
I move amendment No. 1:—
In page 4, lines 33 and 34, Section 2 (1), to delete the words "the business of a dyer or cleaner, "the business of carrying on a laundry".
The words which it is proposed to delete are taken from the Hours of Trading Bill which will provide that depots for taking in goods for cleaning or repair will be treated as shops. It was not intended that a laundry or any industrial undertaking should be covered. The position is dealt with in the subsequent amendments already referred to.
Amendment put and agreed to.
I move amendment No. 2:—
In page 4, Section 2 (1), to delete lines 38 and 39 and substitute the words "of programmes or catalogues at theatres or other places of amusement".
It is intended that the exemption shall apply only to the sale of programmes or catalogues.
Why is it confined to programmes and catalogues and why are chocolates and things of that kind excluded? What is the distinction in principle?
This is an exclusion. We define what constitutes a retail trade or business and the Bill sets out that it shall not include the sale of programmes and catalogues and other similar sales at theatres and places of amusement. It is thought that the expression "similar sales" is somewhat ambiguous and that is why we are proposing to delete it. The sale of chocolates and cigarettes will be subject to the same restrictions as the sale of chocolates and cigarettes elsewhere. We do not think that a theatre bar, for instance, should have any different restrictions in the matter of the conditions of employment from any other type of bar.
I was talking of the people who go around with chocolates and cigarettes inside the theatre as distinct from the bar. They do not seem to be any different from those who sell catalogues and programmes.
What we are proposing to provide for here is that persons who are engaged in such sales in a theatre, that is, the sale of chocolates, cigarettes, beer or spirits, will be subject to the provisions of this Bill in respect of their conditions of employment, just as if they were engaged in those sales in some other place than a theatre, but we are excluding from this Bill the particular kind of persons mentioned here, that is, persons engaged in the sale of catalogues or programmes only.
Amendment agreed.
On amendment No. 3 Deputy Benson might desire to debate amendment No. 4.
I move amendment No. 3:—
In page 4, Section 2 (1), between lines 45 and 46, to insert the following:—
(b) any premises in which goods are received direct from customers for the purpose of having the same dyed, cleaned, repaired, altered or laundered.
The purpose of this amendment is to ensure that the term "shop" shall include premises in which goods are received direct from customers for the purpose of having the same dyed, cleaned, repaired, altered or laundered. It is that portion of the business of a laundry or dyer or cleaner that is being made subject to the provisions of this Bill, and that portion only. I think that is what Deputy Benson urged should be done, and it is certainly what we are proposing to do by this amendment.
But I suggest that the amendment in its present form is going to mean exactly the same as the original form of the Bill, and is going to control the factory as well, because every laundry factory to my knowledge has in it a portion in which goods are received direct from the customers. I cannot see that that could be regarded as one premises, the factory itself being regarded as another premises.
I have no objection to the Deputy's amendment, but I am not sure that it is necessary. If it is necessary, I am quite prepared to accept it. The intention is to provide that where a receiving depôt is separate from the actual premises where industrial work is done it is covered, and also the portion of the factory premises which is confined to that type of activity. I may assure the Deputy that I will have the matter examined, and if I find that his amendment is necessary I will have it included. I will not include it if I find that what he has in mind is, in fact, covered by the Bill. It may be better to have those words in so that there should be no doubt as to what is intended.
I am satisfied, provided the Minister is quite clear that the whole business may be under one roof, but I do not think his wording separates the two; it says "any premises," which would cover the whole thing.
I think it may be desirable to have the amendment in. It may be provided for by an amendment on the next stage.
Amendment No. 3 agreed.
Amendment No. 4 not moved.
I move amendment No. 5:—
In page 5, Section 2 (1), before line 1, to insert the following:—
the word "hotel" means any premises structurally adapted for use and bona-fide used as a hotel and having apartments set apart and exclusively used for the sleeping accommodation of travellers.
It is desirable that the term "hotel" should be defined in the Bill, and this is the best definition I can have framed for the purpose.
It coincides with the definition of "hotel" in the Licensing Acts. Is that the intention?
Not quite, because for licensing purposes there must be a minimum number of rooms. That minimum is quite large. I think we have to deal with even smaller premises than that.
Amendment agreed.
I move amendment No. 6:—
In page 5, Section 2 (1), line 1, to insert after the word "means" the words "a hotel or"; and in line 2, to delete the word "hotel".
This is consequential on amendment No. 5.
Amendment agreed.
I move amendment No. 7:—
In page 5, Section 2 (1), between lines 9 and 10, to insert the following:—
"the expression ‘industrial work' means industrial work within the meaning of the Conditions of Employment Act, 1936 (No. 2 of 1936);"
The phrase "industrial work" is used throughout the Bill, and it is thought better that it should be defined in order that there should be no ambiguity as to what is the precise meaning of the phrase in relation to the terms of this Bill.
If this amendment is carried will not lines 16 and 17 require some amendment? There is a repetition.
That is so. There is a drafting point there.
Are they not deleted by a subsequent amendment?
There is a subsequent amendment deleting them.
Amendment agreed.
I move amendment No. 8:—
In page 5, Section 2 (1), to delete lines 10 to 18 (both inclusive) and substitute the following:—
"the expression ‘member of the staff' means—
(a) when used in relation to a shop (other than a refreshment house), any person who (whether he does or does not receive wages for services) does for the proprietor of such shop any work which is wholly or mainly performed within or in the precincts of such shop and is wholly or mainly in connection with the serving of customers or the receipt of orders or the dispatch of goods or the unpacking or packing of goods, and is not industrial work, and
(b) when used in relation to a shop, which is a refreshment house, any person who (whether he does or does not receive wages for his services) does for the proprietor of such shop any work in connection with the business carried on therein (other than clerical work or work connected with the management of such shop) which is wholly or mainly performed within or in the precincts of such shop, and is not industrial work.
I think the purpose of this amendment is clear. We are seeking to cover all workers in hotels and in refreshment houses. The Bill as originally framed had not that effect. It is, therefore, necessary to have a distinction made between the ordinary shop and a shop which is a refreshment house. There is no reference to a hotel in this amendment, as the term "refreshment house" includes a hotel. The amendment also effects the purpose which was proposed here during the discussions on the Committee Stage, and that is to make it clear that work done in the precincts of a shop is covered by the Bill. Reference was made to the case of a man employed in a garage and attending to a petrol pump outside the garage. A man engaged in such an occupation will now clearly be covered by the terms of the Bill. Instead of speaking of work in the shop we are speaking of work within or in the precincts of such shop. That is the amendment which, I think, Deputies urged during previous stages.
Amendment agreed.
On behalf of Deputy Heron, I move amendment No. 9:—
In page 5, Section 2 (1), to delete all words after the word "means," line 20, to the end of line 27 and substitute the words "the members of the proprietor's family maintained by and dwelling in the house of such proprietor."
The idea behind this amendment is to try to curtail in some small way the definition of "relatives" in the Bill as it now stands. I think that the scope of the term "relative" is far too wide, and is going to give to the person who has a big number of relatives a serious advantage over a decent employer of labour. The proposal is to substitute the words "the members of the proprietor's family maintained by and dwelling in the house of such proprietor." As the Minister is aware, that is the exact expression used in the Shop Act, 1934, passed in the British House of Commons. It is considered that this amendment is for the betterment of the Bill. It is considered that it will help the decent employer, who gives employment to a large number of hands, and prevent unfair competition by persons with a long string of relatives. It is the exact expression used in the Act of 1934.
Well, it is not the type of terminology that I should like to use in this Act. I do not know if the Deputy would agree that a grandson, living in the house of the proprietor and maintained by him, would be regarded as a member of his family, or does the Deputy intend the term "member of a family" to include only the wife and son or daughter? Would he include a stepson or stepdaughter? I think we should define clearly what is meant by relatives and agree on what is covered by the term "relative" rather than use such a phrase as "the members of the proprietor's family" unless you decide what constitutes the members of a proprietor's family.
That has been decided elsewhere.
It has not been decided here. It may be argued that particular relatives that are mentioned here should be taken out or that others should be included. I should be very reluctant to change what is here, but I would certainly prefer the form we have here rather than any term such as the Deputy suggests.
Would the Minister consider reducing the number of relatives mentioned here?
I do not think so. That definition was taken from the Workmen's Compensation Act of 1934 and we had a very long discussion in relation to that Act as to whom should be regarded as a relative. We got that definition by a process of argument and counter-argument and I am inclined to stick to it. I think the Deputy might consider that there are very few classes of persons described in it whom you could not regard as a member of the family of the proprietor if, in fact, they lived with the proprietor in his premises and are maintained by him.
Would the Minister not consider any reduction?
I do not think so.
I think it would be impossible to deal with it differently if you really had to control the hours of work and so on of these relatives living with the proprietor.
Amendment No. 9, by leave, withdrawn.
I take it that amendment No. 10 covers amendment No. 26?
Is the Chair taking this amendment No. 10 as governing amendment No. 26 also?
Very well. I move amendment No. 10:—
In page 5, line 29, Section 2 (1) to delete the word "fourteen" and substitute the word "fifteen".
I am moving this amendment, standing in the name of Deputy Lawlor, and I am talking of the two amendments jointly. The intention is to secure that nobody will be taken into employment unless and until they attain the age of 15 years. That, of course, to some extent affects the school-leaving age, but I do not think this is the proper place to deal with that matter. It can be considered that the fact that children should be flung into industry at such an early age tends towards creating unemployment and, to a considerable extent, also deprives adult workers of employment. It is further argued that in view of the increased facilities in education after children leave the ordinary national school, such as in the vocational schools which have sprung up all around the country and which are doing a great deal of good work, it would be far better for children entering employment if, after they left the national school, they should get a minimum of a year's training in a vocational school. As the Minister will agree, the scope of such a school is far wider than that of the national school. In fact, it even embraces different arts and crafts and starts children off on trades and so forth. In fact, I have known it to be the practice of some shops and also some factories in the country that they have made it a definite rule that they will not employ children until they have done, say, a year in what we may call the local technical school, or the local vocational school as it is now called.
This amendment, as well as the other amendment which it covers, was put down and taken very seriously, and I suggest to the Minister that it is a matter that should be taken very seriously by him. The effect of both the amendments is to increase the age at which children should be employed and to see that nobody should be taken into employment unless and until he reaches the age of 15 years. There has been too much of this kind of thing recently in the country, where children, immediately after leaving school, get a job at 5/- or 6/- a week running messages and then, when they become 19 or 20 years old, they are thrown on the roadside and are unable to get any occupation because they have received no previous training. I ask the Minister to accept this amendment. I think in doing so he will definitely be doing a lot towards reducing unemployment and bettering the lives of the different shop assistants throughout the country.
In supporting this amendment, I should like to call the attention of the Minister to the fact that it is the prevailing custom in many shops, especially in the cities and in the larger towns, to start boys and girls at about 15 years of age— very rarely under 15 years of age—as apprentices to business. As the purpose of this legislation is to improve existing legislation, I think the Minister should start at what is the prevailing practice. There should be in business no boy or girl under 15 years of age.
We discussed this matter on the Committee Stage and I indicated that I could not see my way to accept it. My position is unchanged. It would be out of order to discuss it at any length. The problem associated with the raising of the school age cannot be discussed in this Bill. At present the law provides for the compulsory attendance of children at school until they have completed their 14th year. The question of raising the age to 15 or 16 years has been considered in the appropriate Department, not once, but on many occasions, and there is available to Deputies the report. The Committee considered the matter in great detail and I would advise Deputies to read the report that has been published so that they would get some appreciation of the practical difficulties involved. Personally, I am in favour of raising the school-leaving age. I think that progress to that end can be made but not at once. It is not possible at once to change the law and to provide for the compulsory attendance of children at school until 15 years of age. Before the law can be changed a great deal of preparatory work has to be done in the provision of teachers and schools, in working out suitable programmes and in providing facilities for carrying these suitable programmes through. All that work has been done in some areas through the Department of Education. I do not profess to be able to speak with any authority on what the Department of Education is doing, but until they have reached the stage where they can require compulsory attendance at school until the age of 15. I think it would be undesirable, from many points of view, to prevent children over 14 starting work. First the school attendance Acts should be amended so as to require the compulsory attendance of children at school until the age of 15. An amendment of this law would be necessary before the law relating to conditions of employment is changed. I am not prepared to change the law in the matter of the age of any one entering into commercial occupations after 14 years of age. The circumstances under which children take employment in commercial occupations at 14 are infinitely better than if children were compelled to leave school at 14 and prevented from taking employment until the age of 15.
The Minister has said that he is not in favour of this amendment so there is not much to be gained in either speaking for it or against it. But there is an aspect of the question which has not been touched upon. I entirely agree with the Minister that provision should be made that children or young persons should remain at school until they are 15. But if they leave school at 14 and are kept kicking about until 15 the position would be absurd. I do not think that the business community would be ruined by raising the age to 15, so I am not making that case at all. There is, however, one aspect of the case that I would like to urge upon the Minister and upon the Labour Party. That is that it should be really insisted on that a certain standard of education should be attained before the boy or girl is apprenticed to a commercial business. I would like the Minister to keep that point in the back of his mind if and when any alteration of the law comes along. There are plenty of young persons of 13 who are far better than others at 16.
Or at 60.
Possibly, but I do not want to press it that length. At the same time some incentive should be offered to a boy to reach a certain standard of education.
There seems to me to be one point that Deputy Dockrell and the Minister altogether overlooked. They have both spoken as if 14 years of age were the compulsory school-leaving age. There is no reason to assume that if boys cannot enter a shop as apprentices until they are 15 years of age, they should leave school at 14 and kick about until they are 15. What would happen is that presumably they would stay at school until they reach the age of 15.
Fourteen years is, in practice, the compulsory school-leaving age because school accommodation is not available.
Deputy Dockrell says that the Labour Party and the Minister should consider the question of getting a little better standard of education. But by this amendment I am suggesting a better standard of education because of the fact that the boy or girl should remain in school until 15, not compulsorily, or that he should go to a vocational school for a further year.
There is nothing about that in the amendment.
Well, that is the gist of it. We are not asking the Minister to accept the amendment in toto. We give him a present of it. We are not asking him to take our phraseology.
But even if the Deputy were a parliamentary draftsman of high skill he could not possibly get into this Bill a provision requiring the attendance of children at school until the age of 15.
By the amendment we are imposing such conditions as would keep the children to school until 15. I know of industries where it is definitely laid down that the boys must, in fact, complete a year in a vocational school before they can be considered for employment. If children are faced with the barrier that they cannot get employment until they are 15 they will certainly be forced to spend another year in the national school or at a vocational school to the consequent betterment of the work in which they will subsequently be engaged. In going into an industry then they will have a better standard of education. I press this amendment. I consider it should be accepted by the Minister. If a child leaves school at 14, and is unable to get into a shop, he grasps at the first thing he can get, whereas if he had time to look around him he would not accept the first thing offered; he would look for something better. This is definitely a very serious amendment and I ask the Minister to accept it in spirit.
I am accepting it in spirit but I will not accept it in the Bill.
Question put: "That the words proposed to be deleted, stand."
The Committee divided:—Tá, 71; Níl, 10.
Tá.
- Aiken, Frank.
- Allen, Denis.
- Bartley, Gerald.
- Beegan, Patrick.
- Benson, Ernest E.
- Boland, Gerald.
- Bourke, Dan.
- Brady, Seán.
- Brasier, Brooke.
- Breathnach, Cormac.
- Breen, Daniel.
- Breslin, Cormac.
- Briscoe, Robert.
- Carty, Frank.
- Colbert, Michael.
- Corry, Martin J.
- Davis, Matt.
- Derrig, Thomas.
- De Valera, Eamon.
- Dillon, James M.
- Dockrell, Henry M.
- Little, Patrick J.
- McEllistrim, Thomas.
- MacEntee, Seán.
- Maguire, Ben.
- Meaney, Cornelius.
- Moane, Edward.
- Moore, Séamus.
- Morrissey, Michael.
- Moylan, Seán.
- Munnelly, John.
- O Briain, Donnchadh.
- O'Donovan, Timothy J.
- O'Grady, Seán.
- O'Higgins, Thomas F.
- O'Reilly, Matthew.
- Dowdall, Thomas P.
- Esmonde, John L.
- Fagan, Charles.
- Finlay, John.
- Flynn, John.
- Flynn, Stephen.
- Fogarty, Patrick J.
- Friel, John.
- Fuller, Stephen.
- Gorey, Denis J.
- Gorry, Patrick J.
- Harris, Thomas.
- Humphreys, Francis.
- Kelly, James P.
- Kelly, Thomas.
- Kennedy, Michael J.
- Killilea, Mark.
- Kissane, Eamon.
- Lavery, Cecil.
- Lemass, Seán F.
- Linehan, Timothy.
- O'Rourke, Daniel.
- O'Shaughnessy, John J.
- O'Sullivan, Ted.
- Rogers, Patrick J.
- Ruttledge, Patrick J.
- Ryan, James.
- Ryan, Robert.
- Smith, Patrick.
- Traynor, Oscar.
- Tubridy, Seán.
- Wall, Nicholas.
- Walsh, Laurence J.
- Walsh, Richard.
- Ward, Conn.
Níl.
- Anthony, Richard S.
- Corish, Richard.
- Davin, William.
- Everett, James.
- Heron, Archie.
- Keyes, Michael.
- Lawlor, Thomas.
- McGowan, Gerrard L.
- O'Brien, William.
- Pattison, James P.
Tellers:—Tá: Deputies Little and Smith; Níl: Deputies Heron and McGowan.
Question declared carried:
I take it that governs amendment No. 26?
Yes.
I move amendment No. 11:—
In page 5, Section 2 (1), to delete lines 42 and 43.
The same thing applies in respect to amendments Nos. 11 and 12. The effect of these amendments is to delete the definition of week and week day. It is unnecessary to have the definitions in here because they are already contained in the Interpretation Act of 1937.
Amendment agreed to.
I move amendment No. 12:—
In page 5, Section 2 (1), to delete line 44.
Amendment agreed to.
I move amendment No. 13:—
In page 5, before Section 2 (3), to insert a new sub-section as follows:—
(3) For the purpose of this Act a person who is a member of the staff of a shop shall be deemed to be doing shop work during any period (other than intervals allowed for meals or rest) during which he is present (otherwise than in contravention of a direction of the proprietor of such shop) in such shop and his services are at the disposal of such proprietor.
Deputy O'Brien, I think, pressed on the Committee Stage that a provision of this kind should be inserted. The purpose is to ensure that the person will be deemed to be employed during any period during which he is present in a shop and his services are at the disposal of the proprietor of the shop, unless he is there in direct contravention of his employer's instructions.
Perhaps the Minister will say if he has inquired as to whether that amendment will have any reactions on the employer's liability legislation? Could that sub-section be called in evidence by an employee who is claiming for workmen's compensation to show that the accident he complained of in fact arose out of the course of his employment?
My answer to the Deputy's question is no. Clearly the Workmen's Compensation Act lays down the circumstances under which an employer becomes liable for an accident to the employee. Speaking from recollection, the definition of what constitutes employment in the Workmen's Compensation Act is wider in so far as in many cases the employee is covered even when proceeding to or going from his work.
I would like to ask the Minister about the phrase, "otherwise than in contravention of a direction of the proprietor of such shop." I agree with that, of course, but would it be held that the proprietor would have to have expressly forbidden the employee to be present on the premises, or would the regulations to the contrary be sufficient?
I should say it would be held that the regulations ordinarily governing employment would be held to be sufficient in a case of that kind. I will have the point looked into. The words in brackets are intended to provide not merely for directions given personally by the proprietor, but also by the proprietor's agent or the person acting on the proprietor's authority, or by the regulations or rules ordinarily governing employment.
Suppose somebody comes ten minutes early for work, that an employee is supposed to begin work at nine o'clock. He or she enters the premises at a quarter to nine. They do not actually begin work, but, as they are on the premises, that time might count in the working day.
No.
It might be held that their services were at the disposal of the employer, although they were not actually working, but were waiting on the premises. I do not know whether the words are wide enough to cover that.
I shall have the point examined, but I am quite sure that it would be held that the time of a person not required to be present by the employer, and whose services he did not desire to use, would not be counted in the working day.
Will the Minister put in some words to secure that?
If necessary.
Amendment agreed to.
Amendment No. 14 not moved.
I move amendment No. 15:—
In page 6, line 15, Section 4, at the end of sub-section (2), to add the following:—
"........................................or
(d) railway refreshment-car attendants or railway refreshment-cars."
I have received representations regarding railway refreshment-car attendants, and, in consequence, I examined the conditions under which they work. I find that it is not possible to make them subject to hour regulations provided here. We are, consequently, excluding them from the scope of the Bill otherwise than in respect of holidays, for the provision of which an amendment will be introduced later.
I think that these railway refreshment-car attendants are counting upon being under the Bill. I happen to know that some of them are. I do not know whether the information is correct or incorrect, but I was told that it would be quite feasible for them to work out a schedule by which they would be engaged only the normal number of hours under the Bill and yet carry out their duties.
I got quite a complete schedule of the times of the trains on which there are refreshment cars, and it seems to me to be impossible to bring the attendants under the hours provisions. The difficulty is not, I think, so much the actual hours worked, but rather the separation of them. An attendant may have to travel from Dublin to Cork, and wait for so many hours before coming back again. The Bill would not deal with that position at all. This matter would be best dealt with by agreement of some kind, as the case of the busmen and tramwaymen in Dublin was dealt with by agreement, when it was found that we could not deal with their case under the Traffic Act by having a mere over-riding maximum number of hours. As a matter of fact, the first people to object were those for whom the provision was designed—busmen and tram-waymen—and similar circumstances might arise in this case. We can only leave the hours of work to these people to be regulated by agreement, but what we are providing definitely for is a statutory right to 14 days' holidays per year. We shall do that by a subsequent amendment. I was satisfied, from the information I got, that it would be impracticable to enforce the hours provisions of this Bill so as to meet the circumstances of these people. It may be that, in some subsequent measure to make regulations to cover all the types of cases which, for convenience, were excepted from this Bill and from the 1936 Act, we can introduce some general provision to cover people in these unusual types of occupation, but they cannot be brought within the scope of this Bill, because the circumstances of their employment are so different from the circumstances which ordinarily obtain in the case of shop workers.
They are not much different from the hotel assistant.
Their work may not be much different from that in a shop while the train is going, but there would be no use in stopping them from working half way because they would have to remain on the train in any event.
They could come out of the refreshment car and sit in an ordinary compartment.
That would hardly be of much advantage to them.
Could not these people be dealt with when a similar Bill is introduced to deal with workers in the transport industry?
Yes. They are in a position similar to that of railway drivers or firemen.
These car attendants will be profoundly shocked when they hear of this debate because, so far as I am aware, they believed they came under the Bill and they proposed to have amendments put down to extend the benefits to be conferred on them by the Bill. They will be appalled to discover that they were in the Bill and that now they have been turned out of it.
They will be out of the Bill only in so far as hours of work are concerned. They are being kept in the Bill so far as the holiday provision is concerned.
That is the only provision under which they come?
The sanitary provisions would not apply in the case of a refreshment car, and the provisions as regards relatives of employers would not apply. The provisions as regards hours of work and holiday allowance would be the only provisions which would apply in their case. They are out of the hours-of-work provision, and in the holiday provision.
At present, I think they get a week's holiday.
Amendment agreed to.
I move amendment No. 16:-
In page 6, before Section 6, to insert the following new section:-
"It shall be competent for a trade union in its registered name to pro secute offences under any section of this Act."
It is not clear in the Bill that a trade union can prosecute in its own name and, accordingly, this amendment has been tabled. The Minister will recollect an outstanding case that occurred some years ago in which a union of shop workers took action against the Rathmines Urban Council to enforce certain statutory provisions. They succeeded, but the urban council appealed on the technical point that the union was not entitled to take such action. Although the facts were admitted, the council succeeded in the Supreme Court. The union was absolutely in the right, and it was only on this technical point it was defeated. I think it is reasonable that a union should be entitled to take such action and I hope the Minister will accept the amendment.
I gave instructions for an amendment to be prepared to Section 6 to provide for the prosecution of offences either by the Minister or by a member of the staff of the shop or by a registered union. The amendment was not ready in time to be taken on this stage. I shall have it down for the next stage, and I think that it will fully meet the Deputy's point. It is desirable that we should specify the right of the union in these cases because I should imagine that the most effective means of getting the provision of the Bill enforced, in some parts of the country at all events, would be through the medium of the unions.
If this power is conferred, it may become an instrument of oppression in the hands of a body such as a trade union which is responsible to no authority superior to itself. I suggest that the Minister's amendment should provide that prosecution by a union should only be with the assent of the Minister or the Attorney-General.
With the assent of the person on whose behalf they are taking action.
I demur, although I now see that the danger would be that the person aggrieved would not have the means to prosecute his action and might have to depend on the union to supply the wherewithal to carry on. That had not occurred to me at first. I think there ought to be some restraint upon a union instituting these proceedings and, possibly, the consent of the party alleged to be aggrieved would be a sufficient restraint.
The secretary of a union or an individual on behalf of a union could prosecute under the section as it stands, but we are merely getting rid of that by the common informer procedure, by putting in that a registered union, as such, may do it. I think it is desirable, and from the point of view of the employer it will possibly lead to an approach and an attempt to get an adjustment of conditions that are held to be contrary to the Act, rather than that he should be immediately brought to court by an irate member of his staff who wants to get his own back for some grievance. My experience of unions of this kind is that they will try to avoid litigation if they can. They do not like giving their funds to the legal fraternity, if they can get their purpose served in any other way. In any event, there is available to a member of a staff the right to prosecute in his own interest, and if you left that as it stood, without providing this right for trade unions, they would provide some machinery by which advice free of charge, or some such assistance, would be given.
I suggest that instead of "trade union" the Minister should put in the words "secretary of a trade union." I do not like the idea of a corporate body like a trade union prosecuting, and I foresee certain difficulties as, for instance, maintaining an action for malicious prosecution. If it were, in fact, malicious, it would be very difficult to sue a union for a malicious prosecution. I am speaking of a theoretical case and I do not say that it necessarily would happen. I am dealing with the forms of procedure.
What about the 1906 Act? Would that not be a protection?
I suggest that the Minister should use the words "the secretary of an authorised trade union." Surely that would meet the trade union point of view?
The Minister said he was looking into this matter. I take it that that is also applicable to a subsequent amendment of ours concerning the enforcement of a mandamus.
I am not saying that. What I say is that there would have been on the paper to-day an amendment providing for the right to prosecute in the manner I indicated, if it had been ready in time, but it was not ready. It is ready now, but it does not cover anything except the giving of this right to prosecute to these people.
I think the fact of giving the right to prosecute in its corporate capacity to a trade union would cut down vexatious litigation. Any individual who is no mark, who is a man of straw, could institute proceedings, knowing that if he is defeated and costs are given against him, he has nothing to lose; whereas, if you give a trade union, in its corporate capacity, the right to prosecute, the members forming the trade union, who are trustees and governed by very hard and fast rules, are going to see to it, so far as they can, before starting any litigation that they are not going to be beaten and mulcted in costs.
I suppose the answer to that is that any six men of straw can form a trade union.
Seven are necessary.
There is a point of substance here. Suppose a trade union made up its mind that it wanted to attack a particular employer and start a criminal prosecution against him, and did so, under the amendment proposed by the Minister. The trade union is given the opportunity to put up counsel in court to beslaver that man with all the dirt they can throw.
Counsel would not do that.
That procedure is worth something, and the remedy in the hands of the average citizen against that well-known abuse is that he can sue the offender for malicious prosecution. Am I not right in saying that, under the Trades Disputes Act, 1906, the funds of a registered trade union are immune to damages for tort? Suppose AB were prosecuted under this amendment of the Minister for an alleged offence, and suppose he were acquitted after a very scandalous attack upon him; suppose he then brought an action against the person who prosecuted him, to wit, the registered trade union, for malicious prosecution, and the court held that he was entitled to substantial damages for that he was grossly insulted in a cause in which there was no shadow of suspicion shown against him during the trial. He could not recover a penny because a trade union is protected under the Trades Disputes Act. Will the Labour Party say, if they agree with me and the Minister that no responsible trade union would dream of bringing a malicious prosecution under the terms of this section, that they would gladly see an amendment introduced into the Bill providing that, in the event of a prosecution being brought by a registered trade union under the Bill, the immunity of their funds to a succeeding action for tort would be gladly waived?
I think the Deputy ought to study the terms of the 1906 Act.
Deputy O'Brien is a very astute parliamentarian. Would he say that he would be glad to see the funds of a registered trade union made liable in an action for a malicious prosecution arising out of a prosecution brought under the amendment? If he will, I think my objection to this amendment falls to the ground. Will Deputy O'Brien say that, in his judgment, the funds of a trade union ought to be made liable for damages for a tort of that kind?
I will think over it.
I think we should all do that because the amendment is not before us yet.
Will the Minister bear it in mind?
Yes.
I suggest that if the Minister would not insert "the secretary" he should insert some such words as "the president or some other officer of a trade union prosecuting in his personal capacity", because the trade union prosecuting is an entirely new departure. I think the Minister can meet everybody without much difficulty.
So far as I am concerned, the only purpose is to ensure that the full onus of prosecuting offenders under the Act would not rest on the Minister himself, and that, apart from giving the individual aggrieved the right to prosecute, any organisation of which he is a member and which is established to protect his interests can intervene for him. The manner of the intervention is only a detail.
And to ensure that an impoverished person who is aggrieved will be able to get help to conduct a prosecution from his union.
Quite.
Amendment, by leave, withdrawn.
I move amendment No 17:
In page 6, before Section 7, to insert the following new section:-
Where a person is charged with any offence under any section contained in Part III or Part IV of this Act, it shall be a good defence to such charge for such person to prove to the satisfaction of the court before which such offence is tried that the alleged contravention of such section was rendered necessary or reasonably proper by the actual occurrence or the threat or reasonable anticipation of fire, flood, storm, violence, or any other emergency.
Deputy Dockrell suggested a number of amendments on the last stages of the various parts of the Bill, providing that a person could not be convicted of an offence where he was able to show that his action was due to some emergency. I indicated that I was prepared to introduce a general emergency clause of this kind and this clause is taken verbatim from the Conditions of Employment Act, 1936. I think it is reasonable that the court should be required to regard as a good defence anything done in the circumstances prescribed.
An admirably drawn amendment. It is a pity the Minister did not think of one like it for the Shannon Bill. It would have met the case exactly.
The Shannon Bill is not before us.
The Shannon Bill? The Deputy must be looking at the wrong amendment.
Put in "emergency" for "damage" and you get the perfect amendment.
Amendment agreed to.
I move amendment No. 18:
In page 7, line 6, Section 7 (3), to insert after the words "such order" the words "or makes in any record, which such proprietor is required by such order to keep, any entry which is false in any material respect knowing the same to be false,".
This amendment was also suggested by Labour Deputies on a previous stage. It makes it an offence for a proprietor to make a false entry in any of the prescribed records. I think it is desirable to have it in the Bill.
Amendment agreed to.
Amendment No. 19 not moved.
Progress reported; Committee to sit again this evening.