Amendment No. 1 is out of order.
Committee on Finance. - Holidays (Employees) Bill, 1961— Committee and Final Stages.
Sections 1 and 2 agreed to.
SECTION 3.
I move amendment No. 2:
Before subsection (2) to insert a new subsection as follows:—
"(1) Notwithstanding any other provisions of this Act, a worker who is an insured person under the Social Welfare Act, 1952 shall be deemed to be an employed person unless excluded under the next following subsection of this section."
The intention of this amendment is to cover such workers as insurance workers who are paid on a commission basis. I understand insurance agents paid on commission were not covered by the old Act and it is desirable they should have the same protection under this measure as other workers. As I read the later amendments put down by the Minister I take it—I should like the Minister to tell me if I am correct—it is the intention to cover insurance workers. If we get an assurance from the Minister that it is his intention to protect them under this Bill we shall be quite willing to withdraw this amendment.
The intention of amendment No. 4 is what Deputy Kyne has in mind but I should not like to say the regulations to be made will cover all insurance workers irrespective of how much time they devote to their employment. Each section of insurance workers will be considered and appropriate regulations made in respect of them.
We are merely concerned in this amendment to cover what might be regarded as full-time workers who mainly are paid on a commission basis.
In the main, it is the intention to cover those.
Full-time workers. In view of the Minister's assurance we are prepared to withdraw this amendment.
Amendment, by leave, withdrawn.
I move amendment No. 3:
In subsection (2), page 4, to delete "employers' and employees' organisations" in lines 18 and 19, and to substitute "Ministers of State or employers' organisations and with such workers' organisations."
This is the same as No. 34.
Yes. In making the regulations envisaged under amendment No. 4 it is my intention to consult with employers' and employees' representatives. As a result of representations made from one of my colleagues, I have decided to include also Ministers of State as a category that ought to be consulted in this connection, as Ministers have certain employing functions in relation to people who might be covered. It is no extension of the principle of the section.
Amendment agreed to.
I move amendment No. 4:
Before subsection (3), page 4, to insert a new subsection as follows:—
"(3) The Minister may, after consultation with such Ministers of State or employers' organisations and with such workers' organisations as he considers appropriate to be consulted, make regulations providing—
(a) that any person or any class or description (defined in such manner and by reference to such things as the Minister thinks proper) of persons shall be deemed to be a worker or workers for the purposes of this Act;
(b) that any worker or workers, whether as so defined in this section, or deemed to be such for the purposes of this Act by virtue of regulations made under this subsection, shall, for those purposes, be deemed to be a domestic worker or domestic workers or a non-domestic worker or non-domestic workers (as the case may be) as specified in the regulations.
Any regulations made by the Minister under this subsection may contain such supplemental and consequential provisions or modifications of the provisions of this Act as he considers necessary for giving full effect to the regulations."
This amendment is as I have already described it. I think it is acceptable to the Labour Deputies, and the Congress of Irish Unions are also satisfied on the point.
Amendment agreed to.
Section 3, as amended, agreed to.
Sections 4 to 7, inclusive, agreed to.
SECTION 8.
Amendment No. 5 falls because No. 1 was out of order.
I move amendment No. 6:
Before subsection (2), to insert a new subsection as follows:
"() Good Friday shall be a nonworking day and the provisions of this Act shall apply to that day as if it were a public holiday."
Good Friday has a particular significance for all of us and in recent years there has been an extension by employers of the practice of allowing their workers off from work on this day. However, the situation is very confusing because in Dublin City, for instance, shops close at different times. Some will be closed for the whole day; others for part of the day. Some industrial undertakings will be closed for the morning and others for the afternoon. Good Friday is increasingly regarded as a day on which workers generally would like to refrain from work.
The amendment is put down in this form to ensure that consideration will be on the basis that we are not seeking to have Good Friday regarded as a bank holiday in quite the same terms as in respect of Easter Monday, Whit Monday and the other bank holidays which are days of relaxation and enjoyment. Good Friday is a particular day. There has been a very widespread feeling among workers throughout the country that it would be only appropriate in this country that it should have special recognition and that such recognition should be given in the form mentioned in the amendment.
I should like to point out that the entitlements proposed to be given to workers under this Bill are minimum entitlements and that in many cases statutory provision is not necessary because organised workers in many employments have achieved the entitlements proposed to be given in this Bill already and in some cases entitlements in excess of what is proposed in the Bill.
In relation to the specific amendment here, there are many workers who enjoy, by negotiation, Good Friday off as a holiday, but Good Friday is not a public holiday so declared by legislation. The public holidays so declared are as set out in Section 8, subsection (1) of the Bill. They are Christmas Day, St. Stephen's Day, St. Patrick's Day, Easter Monday, Whit Monday and the first Monday in August. It is a function of the Government, under the Public Holidays Act, to designate what are, in fact, public holidays; it is not a function of the Minister for Industry and Commerce. If and when the Government declare Good Friday to be a public holiday, there is provision in the Bill empowering the Minister for Industry and Commerce by regulation to declare workers entitled to Good Friday as a public holiday in the same manner as they enjoy the statutory public holidays at the present time. In those circumstances, I do not propose to accept the amendment.
Could the Minister at this stage indicate whether there is a possibility of the matter being considered at a later stage by the Government in the light of his remarks? This is obviously a question which no Deputy wishes to be a matter of controversy. Many thousands of workers do not work on Good Friday in many cases, not merely because of there being some negotiations, but in a wider number of cases because the employers close the businesses down. In many cases that is done by agreement and in other cases by mutual decision. I appreciate what the Minister told us. It is not a scheduled holiday under the particular Act. We are aware of that. Perhaps, the Minister might be able to say whether it would be possible for the Government to consider this matter again in the near future.
I cannot say that the Government have given it any consideration nor do I know that the Government intend to, but if and when there appears to be a necessity for it, no doubt the Government will give due consideration to declaring Good Friday a public holiday as is the case in respect of the other holidays. In the meantime, I should not like to suggest to the House that it is proposed to declare Good Friday a public holiday.
Amendment, by leave, withdrawn.
I move amendment No. 7:
In subsection (5), page 6, to delete "other" in line 31 and "instead of the day so mentioned" in line 32; and to delete "substituted for the day so mentioned and the said subsection (1) shall be construed and have effect accordingly" in lines 34, 35 and 36, and in lieu thereof to insert "a public holiday for the purposes of this Act."
This is, in fact, an amendment to provide for the contingency mentioned by Deputy Larkin. The section, as it stands, empowers the Minister to declare for the purposes of this section a public holiday which replaces an existing public holiday to be a public holiday for the purpose of the Act. The amendment now proposed intends to provide for the situation where the existing public holidays will remain and a new public holiday be added. If and when Good Friday is added, this section empowers the Minister to declare that day to be a public holiday for the purpose of the Act.
Amendment agreed to.
I move amendment No. 8:
In subsection (6), page 6, to delete "instead of" in line 38 and in lieu thereof to insert "either in substitution for or in addition to"; and to delete "substituted for the day so mentioned" in lines 40 and 41 and in lieu thereof to insert "a Church holiday for the purposes of this Act".
This amendment is on all fours with amendment No. 7 about which I have just spoken except that it relates to Church holidays as against public holidays. If a new Church holiday is declared by the appropriate authorities, the Minister is empowered to include that new Church holiday.
Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9.
I move amendment No. 9:
In subsection (2), line 24, to delete "twice" and substitute "three times".
Amendments Nos. 9 and 11 may be taken together.
The purpose of these amendments is to provide that where workers are called upon to work on public holidays they should be paid not on the basis of their day's pay plus the additional day's pay as proposed in the Bill but that they should get a total of three days' pay for working on the public holidays. In moving these amendments, I should like to point out that while the old Holidays Act provided that a person who worked on a public holiday, if he did not get a day off, would be entitled to be paid on the basis of 25 per cent, in actual fact, for 30 years or more organised workers have enjoyed what is only now proposed in the Bill before the House— in other words, a double day, an additional day if they worked on a bank holiday. In recent years many sections of organised workers have negotiated, by agreement, payments in excess of the double day when called upon to work on a bank holiday. In this regard, I should like to point out to the Minister that our legislation provides for six bank holidays in the year.
These bank holidays are looked forward to by every section of the community to whom they apply. If an individual is called upon to forfeit the enjoyment of a bank holiday, whether it is Whit Monday, the August bank holiday which is now approaching, or Easter Monday, and in most cases relaxation with their family and friends, they should be entitled to proper compensation for such inconvenience. We feel that the provision in the present Bill is not adequate.
There are people who by the nature of their employment do shift work, work at night, work at odd hours and work in broken time. At least in the cases where people are covered by an Act which provides them with six public bank holidays, every effort should be made to ensure that they get those public holidays and, if they do not get them, they should get adequate compensation. Does the Minister really think that when the bulk of the populace, we hope, are enjoying themselves in fine weather at race meetings and other sporting events, the seaside and other places, it is adequate compensation for a person who must work on that day to receive an additional day's pay?
Quite a number of workers, by negotiation or otherwise, have procured compensation for themselves which is better than is provided in this Bill for having to work on a bank holiday. There are other provisions in the section besides the proposed double pay provision. If the worker likes, he can take a day off in lieu of the bank holiday on which he works within a month of the bank holiday or have a day added to his normal holiday period. These are minimum statutory entitlements which workers will receive.
The old provision was time and a quarter for work on a bank holiday. Double time is a pretty substantial advance on the status quo. Many employers would find it very difficult to pay treble time for bank holiday work. Organised workers can negotiate and have done so with big employers. I do not think it would be reasonable to jump from time and a quarter to treble time for work on a bank holiday. Many workers who are entitled to be free on the bank holiday would perhaps far prefer to have another day free instead. On a bank holiday, it is difficult to get transport and perhaps accommodation, whereas another day might be more beneficial and certainly might be more enjoyable.
Many people put a lot of value on being free on a bank holiday but on the other hand, I think that view can be exaggerated. The provision in the Bill is a substantial advance. I do not think we could be expected to go as far as is proposed in this amendment.
For the overwhelming number of organised workers, the proposal in the Bill represents no advance whatever. Any merit that is in the Bill is in respect of people who are not covered by agreement. Double time, which is paid now by agreement in respect of bank holiday time, is paid not only by very substantial industrial undertakings but even by medium and small employers. The people who possibly have not been getting the benefit of the situation up to date may in many cases be those employed by Government Departments, local authorities and health authorities in certain cases who have insisted on keeping strictly to the letter of the law.
The Minister did not answer my point. Is an additional day's pay for a person who is compelled to give up his relaxation on those six days in the year good and proper compensation? If the Minister thinks further about the matter, he will agree that it is not. What would be the reaction if the Taoiseach said to us to-day that the Dáil would meet next Monday? Although we represent the community, I think it will be agreed that such a suggestion would almost cause a revolution.
Our purpose here, primarily, is to represent the community and serve the public. Consider those engaged in transport undertakings who will take people to race meetings, to the seaside, to football games. Consider those employed by the E.S.B., the gas company, and so on. Consider those employed in the delivery of essential milk supplies. Consider all those people who must work on the bank holiday on the maintenance and repair of industrial plant and machinery. I do not believe that one per cent. of all those people would agree with the Minister and say: "We should like to have another day in the month." To say that for married men with families another day in the week is as good, for instance, as the August Bank Holiday is not correct. On the bank holiday, they can go out with their family and meet their friends who will be free also. Race meetings, excursions, sporting events, and so on, are not as likely on other days as on a bank holiday. There is a saying that misery loves company. Undoubtedly people like to enjoy themselves in the company of other people.
This amendment seeks to extend to people who must work on bank holidays some compensation for the holiday which none of them wishes to forgo. A different day is poor compensation for person who must give up the bank holiday. Not many people are deprived of being at home with their family for the morning and afternoon meal on Christmas Day, St. Stephen's Day and the other holidays but surely those who must work on those days deserve consideration.
The Minister says the Bill is an improvement. It is, but I would point out that many of those who have not enjoyed the double pay are perhaps employed by the State or public authorities who have taken advantage of the legal position. Those workers are being protected now. This Bill represents no advantage to the average organised industrial worker. It provides nothing more than they have been enjoying for the past 30 years—even before the Act we are amending came into operation. I appeal to the Minister to consider that aspect of the matter again.
I should like to support Deputy Larkin. I appreciate what the Minister says in regard to this being an improvement on the old Act, from time and a quarter to double time, for working on bank holidays. It is also clear in the section, however, that an employer has the right to decide to give a compensatory day off if he so wishes and still get the work done at the ordinary time rate. Surely, if anything, that is worsening the position? This compensatory holiday may be given at the discretion of the employer at any time within a month or be added to the annual leave, which perhaps may be given in the winter time. It is in substitution for a public holiday when other people are enjoying themselves and the workers will be required to work for a single day's pay. The worker is to get a single day's pay, plus a compensatory day off at a time when he does not want it. That rather worsens the position.
We feel that treble time should be given for working on bank holidays, not so that the workers should be given extra pay but in order to stop employers from unnecessarily working their employees on bank holidays; to prevent them without grave reason from calling back their employees on a day the State declares to be a public holiday, when ordinary workers expect to be allowed to enjoy the normal amenities with their families. We all know that public holidays represent the most difficult days for certain classes of employees, such as those in the catering trade and those in transport. That is understandable, but for the ordinary factory or industrial worker, the bank holiday is regarded as a day of rest and we believe the penalty for employing workers on such days should be severe so that the employer will think twice about working his employees, unless he has grave reason and grave reason generally involves great interest or great profits.
Does the Minister appreciate that if we are called into work on the August Bank Holiday, we will get a normal week's pay and under this Bill compensation is given? We can forfeit everything and get only one day's pay. As Deputy Kyne pointed out the position is worse. Some employers may say: "We will bring you in and we will give you a day off on Wednesday and you will get only your normal week's wages." We have lost the holiday and we get a day off on a day that is not much good to us or our families and there is no addition to our wages. The fact has been stressed by Deputy Kyne, and it is very important, that some employers could in fact call upon their workers to come in to work, because of an emergency, on days when the majority of their workmates are out enjoying themselves with their families and then the employers can say: "We will give you Wednesday or Thursday off." That is what the Bill provides and I think the Minister should consider these points.
The man who comes in when the bulk of the workers are off will get one additional day's pay. If a man goes in on a Sunday, he will have two days on top of his wages. There are 52 Sundays in the year and six public holidays. If a man is called in to work on a public holiday, his compensation for working on that day is one additional day's pay, if he is paid on that basis, or alternatively, the employer may tell the employee to come in and that he can go off and enjoy himself on a Wednesday at Fairyhouse, or somewhere else, with his family. I would ask the Minister to look into that again.
I should like to suggest to Deputies that it is not fair to take this provision in isolation. One has to have regard to the Bill as a whole. It provides not only for double pay for a worker who works on bank holidays, but also gives him a statutory minimum period of an extra week's holiday. It also reduces the qualifying period the worker must work before he is entitled to a public holiday and also the qualifying period for a worker before he is entitled to annual holidays. As well as that, it has other provisions, for example, where board and lodging are included in the worker's pay, the amount attributable per day to board and lodging is increased under the Bill. That amount has to be paid to such a worker during his period of annual holidays, so that, not only in this provision but I suggest in the Bill as a whole, there are considerable advances. Again, I repeat, these are minimum entitlements and as minimum entitlements, they are perfectly reasonable. I do not think I can accept the Deputy's suggestion.
Question put: "That the word proposed to be deleted stand."
The Committee divided: Tá, 38; Níl, 5.
Tá
- Bartley, Gerald.
- Blaney, Neil T.
- Boland, Kevin.
- Booth, Lionel.
- Brady, Philip A.
- Brady, Seán.
- Breen, Dan.
- Brennan, Joseph.
- Brennan, Paudge.
- Breslin, Cormac.
- Childers, Erskine.
- Davern, Mick.
- Doherty, Seán.
- Donegan, Batt.
- Dooley, Patrick.
- Egan, Kieran P.
- Fanning, John.
- Faulkner, Padraig.
- Gibbons, James.
- Gogan, Richard P.
- Haughey, Charles.
- Hillery, Patrick J.
- Hilliard, Michael.
- Johnston, Henry M.
- Lemass, Seán.
- Loughman, Frank.
- Lynch, Celia.
- Lynch, Jack.
- Moher, John W.
- Ó Briain, Donnchadh.
- Ormonde, John.
- O'Toole, James.
- Ryan, James.
- Ryan, Mary B.
- Sheldon, William A.W.
- Smith, Patrick.
- Teehan, Patrick.
- Traynor, Oscar.
Níl
- Corish, Brendan.
- Desmond, Daniel.
- Kyne, Thomas A.
- Larkin, Denis.
- Norton, William.
Tellers: Tá, Deputies Ó Briain and Loughman; Níl, Deputies Kyne and Larkin.
Question declared carried.
Does that decision cover amendments Nos. 10 and 11?
Yes.
Amendments Nos. 10 and 11 not moved.
I move amendment No. 12:
To delete subsection 6 (b) and substitute the following:—
"(b) the worker ceases to be in the employment of such person before the public holiday occurs."
There are a number of amendments that could be discussed with No. 12—13, 15, 16 and 24.
Yes. The purpose of this amendment is to protect the worker who may be technically out of employment on the day of a public holiday. The words in the Bill are "whose services are terminated". It is suggested that they should be altered to "who ceases to be in the employment". The word "terminated" connotes dismissal. A person who qualified under every other provision might on the Saturday before a public holiday, go to work somewhere else and would lose entitlement to be paid for the public holiday.
I would ask the Minister to say whether he is prepared to consider the slight changes suggested in these amendments. Amendment No. 12 suggests the substitution of the words "ceases to be in the employment" for the words "whose services are terminated" and the other amendments are consequential.
The purpose of the section as it stands is to entitle a worker who has the requisite number of hours before a public holiday to qualify for that day off and be paid for the public holiday. The aim is to ensure that an employer, by dismissing a worker a day or two before a public holiday, will not avoid the obligation of paying the worker for that public holiday. In other words, once the worker has worked the requisite number of hours before the holiday, the employer must pay the worker for that public holiday if he dismisses that worker just before the holiday.
The purpose of that is obvious—to avoid what might be a blatantly undesirable practice. I suggest that Deputy Larkin's amendment, if carried, might operate to the detriment of a very great number of workers. Even though a man has not at the time of a holiday worked the requisite number of hours that would qualify him for his pay on the holiday, I believe most employers in any event give the worker his entitlement in respect of the holiday even though he has not got the required hours. If a worker voluntarily leaves that employer, I think it would be unfair to require the employer to pay that worker in respect of that holiday. That worker, having left his employer, might take up other employment and might work for his next employer on the public holiday and get paid for it and we would be giving him, under this amendment, statutory entitlement over and above what he should get in equity.
The good employer who pays the worker in respect of a public holiday, even though that worker is not statutorily entitled to it, might be discouraged from continuing that practice if such a provision as that suggested in Deputy Larkin's amendment were adopted. I think the purpose of the section as it stands is obvious —to avoid exploitation of the worker by dismissing him before the public holiday. Secondly, the good employer usually gives the worker that benefit in any case and to oblige the employer to pay the worker who voluntarily leaves might discourage the employer from doing so. I do not think the section as it stands will impose any hardship on the worker.
Against the case made by the Minister, take the case of a builder's labourer who, in the five weeks, must have the requisite number of hours to qualify for pay on the holiday, but may be put out by the section as it stands. His work may be almost drawing to a close and there may be only a couple of days' work for him after the holiday. Because of the nature of his employment in ordinary times—we know builders are busy at the moment—a builder's labourer may be obliged to notify the employer he will be leaving immediately before the holiday. He may find it necessary to leave for domestic reasons. This man is qualified—it cannot affect a man who has worked only one week of the five immediately preceding the holidays —but he must comply with all the other qualifications.
Surely, it is not unreasonable in those circumstances that such a worker would be given the benefit of the holiday pay provisions which he has earned? The amendment does not suggest that anyone who leaves the employment prior to the public holiday must be paid for the public holiday; it covers only those who would qualify in all other respects under the Bill. The number of cases arising would not be very great and I do not agree that it would discourage good employers or that it would make them feel they were prejudiced.
Under the Act now in operation a worker must work out 150 hours in the five weeks immediately preceding the public holiday. If he has only worked 149 or 148 hours, and a day or two before the holiday finds he has to leave for family or other reasons, it would be no hardship to the employer to pay him for the holiday and it would be of some small advantage to the man in the circumstances. I am aware that, under the Conditions of Employment Act, the situation was that the worker had to be in employment the day before and the day after the holiday and that certain unscrupulous employers laid off their men two days before the holiday and did not take them back until two days afterwards. That legislation was subsequently amended. This amendment is aimed at helping a very few people and is not to the detriment of anyone.
I support Deputy Larkin in this amendment. Surely, the Minister will agree that if a man has been in employment for the past five or six months and the employer lets him go on Saturday night next, that man is entitled to the August bank holiday with pay? A man, who has an opportunity of securing a better position and has compiled with all the other conditions, should be as entitled to a holiday with pay on Monday as the man whom the employer would be letting go. I agree the Minister has a point when he says it would be wrong that one employer should pay an individual for the August Monday and that the next employer should pay the same individual if he works for him on the holiday, but I believe a small extension of the amendment, saying that a man who has got paid from a former employer for the bank holiday should not be entitled to work for another employer and get paid for the same holiday would cover that.
If a man works for as long as Deputy Kyne suggests—five or six months—and leaves the employment of his own volition, he will, under Section 10 of the Bill, become entitled to cesser pay—payment for holidays but not for that day. When legislating for matters of this kind, we must be just but we must be just to both sides. We are being fair to the worker here. We must be just to the employer as well. Let us take the example given by Deputy Larkin. A man who has been working for an employer for the requisite statutory period may see a better job and leave. In many cases, the employer may be anxious to finish a contract by a certain date and the worker may leave him in the lurch. In effect, that worker —I am not saying all workers—might walk out on the employer who needed his services very badly in order to finish a contract. It would be unfair to oblige an employer to pay public holiday pay to a worker who left him in the lurch.
Again, to continue that example, that employee may already be in the employment of a second employer and may either get the public holiday off, or be paid for it by the new employer. We must be just to both sides and I think we are being very just in this subsection. When a worker leaves a couple of days before a public holiday, I do not think it is fair to oblige an employer to pay him in respect of that public holiday.
Question: "That the subsection proposed to be deleted stand part of the Bill" put and declared carried.
We can take that decision as applying to amendments Nos. 13, 15, 16, and 24.
Amendment No. 13 not moved.
I move amendment No. 14:
In subsection (6), paragraph (ii), page 8, to delete "the amount of two full days' pay" in line 21 and to substitute "a full day's pay in respect of that day, and an additional such sum in respect of St. Stephen's Day".
This amendment is intended to clarify the existing provision. The Bill as it stands proposes that there shall be a legal requirement to pay two days' pay for Christmas Day. That takes into account St. Stephen's Day which is also a holiday. I am moving the amendment to avoid any misunderstanding that a person is entitled to two days' pay for Christmas Day and another day's pay for St. Stephen's Day. The amendment spells out, as it were, that the two days are Christmas Day and St. Stephen's Day. It is clarification but there is no change in the provision.
Amendment agreed to.
Amendments Nos. 15 and 16 not moved.
Amendment No. 17 is out of order.
Amendment No. 17 not moved.
I move amendment No. 18:
In subsection (8) (a), lines 45 and 46, to delete "one hundred and twenty" and substitute "one hundred."
The purpose of the amendment is to reduce the qualifying period from 120 hours to 100 hours. It appears that some error has been made in the printed sheet because amendment No. 21 refers to "fifty" and "twenty," and the subsection refers to "one hundred and fifty." It appears that some mistake has been made in the amendment submitted on behalf of my colleagues and myself.
Subsection (8) proposes that the qualifying periods of work in the case of a worker employed in mining shall be not less than 120 hours. That qualifying period has existed since 1939. At that time the working hours in the country varied between 45, 46, 47 and 48 hours, and there were quite a considerable number of workers on shift work who worked 56 hours. Over the years, as a result of trade union negotiations and activity, the normal working hours have been coming down. In recent months, quite a large number of agreements have been reached which provide for a 42½ hours working week. Workers who previously worked 56 hours are now working a normal week of 44 hours. A few settlements have recently been arrived at which provide for a 40 hour week. If the original qualification period remains, the worker will have to work many more days in order to qualify for the benefits of the Act.
This Bill provides certain improvements but we submit those improvements are not in fact fully adequate. The suggested 100 hours period is for the purpose of trying to ensure that the workers affected by this provision who work the shorter normal working hours will at least be in a position comparable to their position when the 1939 Act was passed.
The general provision here is that if a person works for 150 hours in a period preceding a public holiday, he should be entitled to a day off in lieu or a double day's pay. I propose in a later amendment to reduce that qualifying period of 150 hours to 135 hours. That is in respect of what the Bill describes as non-domestic workers—workers in ordinary industrial employment. That is justified on the basis that since 1939, when the figure of 150 was first introduced, there has been a reduction in the working week generally from 48 hours to 44 hours. The 150 hours is related to a 48-hour week, and the 135 hours relates roughly to a 44-hour week.
However, there has been a corresponding reduction in the number of hours worked by non-adult workers— workers under the age of 18 years. I think the figure provided in the Bill, 120 hours, for workers under the age of 18 is reasonable. Nevertheless, Deputies will note that under subsection (10) there is a provision by which the qualifying hours in the Bill may be reduced by regulation in respect of any class of worker. If a case can be made ultimately for the reduction of working hours for a person under the age of 18 years, it is possible under subsection (10) to make the appropriate reduction by way of regulation. At the moment I am not convinced a case exists for that purpose.
Amendment, by leave, withdrawn.
I move amendment No. 19:
In subsection (8), after paragraph (b) to insert the following new paragraph:—
"(c) in the case of a casual worker, not less than sixty hours,".
Perhaps amendment No. 22 could be discussed with amendment No. 19.
The purpose of this amendment is to give special consideration to the case of casual workers who may work only two or three days in the week. The position of such a worker is somewhat different from that of workers in regular employment. The qualifying period of 135 hours for the adult industrial worker does not afford to the casual worker the protection we would wish him to have. There are quite a large number of casual workers who work only two or three days in the week and who would hardly ever qualify for a holiday. Under the original Act, if a person was in employment the day before or after a public holiday, he could qualify; and under the original Act a casual worker might well be in that position.
There is also the case of temporary workers. Special consideration should be given to the case of temporary workers who may be taken on for two or three days a week in some industries in order to deal with a rush and who may be let go short of the qualifying period. The amendment is designed particularly to deal with the case of workers who work only two or three days a week and who can never qualify for a holiday even on the Minister's basis of 135 hours.
To provide that a casual worker cannot take advantage of special consideration and enjoy a public holiday at the expense of two employers simultaneously, amendment No. 22 is inserted. The purpose of that amendment is to ensure that the payment in respect of a public holiday can be made only once and by the first named employer.
Again, I suggest that that reduction I propose to make in the qualifying period in the next section is pretty generous and may indeed extend to most casual workers. As I already said, the provision, as it stands, requires a worker to work for 150 hours in the five-week period immediately preceding a public holiday in order to qualify for payment for that public holiday.
The reduction from that period of 150 hours to 135 hours, in effect, envisages about three weeks work out of the five. That will take into account most casual workers at present. But if the Labour Deputies' amendment is accepted, it would mean that if a man worked for normal hours in the first full week of these five weeks and for half of the next week, the employer for whom he worked might never see him again and, in fact, might not have work for him. Nevertheless, he would be obliged three and a half weeks later to pay that man holiday pay in respect of the public holiday which immediately follows that five-week period. It would be unfair to expect that employer so to pay that casual worker. That is my thinking at present.
Again, I should like to refer Deputies to subsection (10), whereby the Minister can make regulations altering the qualifying period in which a man would be entitled to holiday pay. I suggest, too, that to fix a minimum period of 60 hours to apply to all casual workers would, perhaps, be unwise at this stage and that it would be better, on a special case being made, that the Minister would examine different categories of casual workers and make regulations to cover such categories under subsection (10). In the circumstances, I do not propose to accept amendment No. 19.
As far as amendment No. 22 is concerned, I think the proposition—that in the event of a casual worker qualifying for holiday pay, he should be entitled to be paid that holiday pay by one employer—is a perfectly reasonable one. On the other hand, I suggest that that provision could be taken into account on the appropriate examination of any specific case in respect of casual workers put before the Minister and in relation to which he can make regulations under subsection (10).
I think it only right that the Labour Party Deputies should express appreciation of the fact that the Minister has met in some degree their request and the request of the Congress of Trade Unions in relation to this matter. I am glad to note that the Minister will be able to deal with the question of specific cases within the framework of this Bill in regard to the special problems that may arise in dealing with casual workers. The fact that he has reduced the number of hours is an assurance that specific cases will be dealt with justly. Because of the Minister's approach in meeting the position, I do not think we would wish to press our amendment.
Amendment, by leave, withdrawn.
I move amendment No. 20:
In subsection (8), paragraph (c), page 8, to delete "fifty" in line 50 and to substitute "thirty-five".
Amendment agreed to.
Amendment No. 21 not moved.
In view of the Minister's assurance that the regulations made will deal with the position of casual workers, I do not propose to move amendment No. 22.
Amendment No. 22 not moved.
Amendments Nos. 23 and 31 might, perhaps, be discussed together.
I move amendment No. 23:
Before subsection (10), to insert a new subsection as follows:—
"( ) Each hour lost by a worker through sickness, up to a maximum of such number of hours as constitute a normal week's work, shall be deemed to be an hour worked for the purposes of this section."
The present position is that a worker may lose a number of days during the qualifying period of five weeks through illness and his right to qualify will be thereby affected. The suggestion is that each hour lost up to a maximum of such number of hours as would constitute a normal week's work should be deemed to be an hour worked for the purposes of this section. There is no question of a man leaving his employment. It is a question solely of a man being absent for a short period, and because of no fault of his own, through illness.
Again, I should like to suggest that my proposal to reduce the qualifying period from 150 to 135 hours, which the House has accepted, very adequately meets the situation envisaged by Deputy Larkin. On the basis of working a 42½ hour week, that worker would have to work an average of only 27 hours during the qualifying period accepted by the House and he would, therefore, have a margin of over 77 hours in the five-week period to cover a contingency such as sickness. He would have the equivalent of almost two weeks in a five week period for sick absences in order to qualify for holiday pay. Workers who work longer than a 42½ hour week would have a much longer period to play with, so to speak. I suggest the amendment which has been accepted very adequately meets the situation envisaged by Deputy Larkin.
Under previous legislation, no provision was made for illness. The Minister has reduced the qualifying period from 150 to 135 hours. There was a change in normal working hours in the period 1939 to 1961. There was no provision in either the 1939 or the 1956 Acts on the lines we suggest now to meet the case of people absent through illness. We are asking the Minister to provide that in the case of a person absent through illness for a maximum period of one week during the qualifying period of five weeks, that absence will not be permitted to militate against that worker.
The idea is that some consideration should be given to workers who lose time through illness. There is no question of their getting credit for each hour for the full period of five weeks, four weeks or three weeks, but, if they are out two weeks in the five weeks immediately preceding that holiday, through illness, at the moment they do not qualify. To ease that situation, it is suggested that a maximum of one week might be inserted in order to help in that case. Frequently workers go ill through the circumstances of their employment. That illness may not fall within the category in which it would be covered by workmen's compensation. The idea in the amendment is something new. We are asking for cover for workers in a special position, workers who lose time through illness and who, because of that loss of time, also lose the right to qualify for a public holiday.
There may be a case where a worker has had a long period of regular employment with his employer and then runs into a period of bad health. Perhaps he contracts a very heavy cold or pneumonia, having worked in an isolated position on a building job. As a result of that, he may be out sick for a fortnight or three weeks; then a bank holiday occurs and, because he cannot punch in the prescribed period of 135 hours in the five-week period, he loses pay for the bank holiday. That seems a harsh penalty in the circumstances. If this amendment is not accepted, that will be applied rigorously to every case no matter how long the worker's service may be. It may be that he is actually working, as has been said, three weeks before a bank holiday. His illness may have started in the first two of the five weeks and he may be working for about three weeks coming up to the bank holiday. While he is in the service of his employer he receives no pay for the bank holiday while the remaining members of the staff do.
The Minister could usefully accept this amendment in principle so as to establish that where a worker is genuinely ill he will be allowed to calculate some portion of the period of illness towards the hours necessary in order to qualify for the holiday pay. When workers are obliged to report sick many of them receive sickness benefit which is a very small fraction of their take-home pay. Nobody is encouraged to report sick and rely on social welfare benefits when his wages are substantially higher than those benefits. Therefore the Minister has a strong argument against any suggestion that people might report sick frivolously. That is not likely to happen in all these well-organised trades where the take-home pay is much better than the social welfare benefits. The Minister ought to accept the principle here of allowing a proportion of the sick pay to be counted towards entitlement to the bank holiday payment in such cases.
There again I would suggest the case Deputy Norton envisages is very remote. As I pointed out in replying originally to Deputy Larkin's statement, the period of 135 hours represents an average working week of only 27 hours over a five-week period. Therefore the man who is absent for, perhaps, a couple of hours one week and a few hours the next week, in fact a few hours every week during the five-week qualifying period, has plenty of margin in order to qualify for his holiday pay. The worker on a 42½ hour week would have a margin of over 77 hours to cover such contingencies as sick absence. The provision is reasonably generous and will cover, in effect, most cases of illness. There is no great need to accept the amendment as proposed.
Amendment, by leave, withdrawn.
Amendment No. 24 not moved.
I move amendment No. 25:
In subsection (13), page 9, to delete "and ‘a half day's pay' shall be construed accordingly" in lines 36 and 37.
Subsection (13) of Section 9 includes a phrase at the end of it which the Parliamentary draftsman advises me is not necessary. I shall read the subsection:
In this section "a full day's pay" means the amount payable to a worker under his contract of service in respect of a normal full working day, and "a half-day's pay" shall be construed accordingly.
The phrase "and ‘a half-day's pay' shall be construed accordingly," which this amendment proposes to delete is, I am advised, unnecessary because it occurs nowhere else in the Bill. It is really a drafting amendment proposed by the Parliamentary draftsman.
Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10.
I move amendment No. 26:
In subsection (1), page 9, to delete "eighteen" in paragraph (a), line 48, and to substitute "sixteen"; and to delete paragraph (b) in lines 49 to 53 on page 9 and lines 1 and 2 of page 10.
Amendments Nos. 27 and 28 may be discussed with No. 26.
My amendment proposes to reduce from eighteen hundred hours to sixteen hundred hours the qualifying period for two weeks annual holiday entitlement. The Labour Party amendment proposes to reduce that eighteen hundred hours to one thousand, four hundred and forty hours. I suggest my amendment meets adequately the representations made to me by the Irish Congress of Trade Unions having regard to the general reduction in the number of hours worked per week by the average worker. Assuming that the figure of eighteen hundred hours was based on a normal working week of 48 hours, I the figure I propose of sixteen hundred hours would relate to a normal working week of about 44 hours. I suggest that is a reasonable reduction in order to qualify a person for a two weeks' holiday period.
On the Second Reading of this Bill the Minister for Transport and Power, substituting for the Minister, indicated that perhaps such an amendment would be inserted by the Minister but that he was not to be taken as tying the Minister to do so. It was because of that statement we have inserted these amendments as a safeguard. We appreciate the Minister has met the views of the Irish Congress of Trade Unions and has carried out pretty well what he was asked to do on the Second Reading. Therefore, we propose to withdraw our amendments.
Amendment agreed to.
Amendments Nos. 27, 28 and 29 not moved.
I move amendment No. 30:
In subsection (3), page 10, to delete "fifty" in paragraph (d), line 31, and to substitute "thirty-five".
Is No. 30 consequential?
It is. The effect of the amendment is that a person who leaves employment or is dismissed before he is allowed annual leave will receive a proportion of holiday pay in respect of each month's employment in which he has worked 135 hours or more. It relates fairly generally to the qualification period for bank holiday pay.
Amendment agreed to.
Amendments Nos. 31 and 32 not moved.
I move amendment No. 33:
In subsection (6), page 10, to delete "eighteen hundred hours" in lines 59 and 60; and to delete "fifty" in line 61 and substitute "thirty-five".
This is consequential on amendment No. 26.
Amendment agreed to.
Section 10, as amended, agreed to.
Sections 11 to 16, inclusive, agreed to.
SECTION 17.
I move amendment No. 34:
In subsection (3), page 16, to insert "Ministers of State or" before "employers" in line 1; and to insert "with" before "such" in line 2.
I referred to the fact that, in making regulations, the Bill, as it stands, requires the Minister to consult with employers' and employees' representatives and that I added Ministers of State as parties to be considered. This is a similar provision which includes the Ministers as parties to be consulted under the section.
Amendment agreed to.
Section 17, as amended, agreed to.
Amendment No. 35 is out of order.
Section 18 agreed to.
NEW SECTION.
I move amendment No. 36:
Before section 19 to insert a new section as follows:
"On the winding-up of a limited company and on the bankruptcy of an individual all moneys due under this Act shall be treated as preferential claims."
This is a very simple amendment. Its purpose is to give the worker preferential rights in the case of insolvency of a limited company or a private company. In the case of a limited company, the existing preferences are set out in the Companies Act of 1908 and in the case of an individual going bankrupt, the preferences are set out in the Preferential Payments in Bankruptcy Act, 1889. A worker in the case of a company going into liquidation is entitled to preferences in respect of two months' wages subject to a limit of £25. A clerk or servant has an existing preference in respect of four months' wages to the limit of £50.
It is a fact that workers will always regard the amounts standing to their credit in respect of holiday pay as something to which they have an inalienable right. I suggest to the Minister that there is a stronger claim for making holiday pay preferences than there is for allowing the State the right to have preference in respect of one year's income tax or a local authority having the right to have preference in respect of one year's rates.
I think there is a fair amount of confusion about this matter amongst the few in this country who are concerned. I can assure the Minister, in case there is any misapprehension, that the best legal opinion is that holiday pay under existing law is not preferential in case of the liquidation of a limited company or in circumstances where you may have receivers acting on behalf of debenture holders. I think there is a very good case for this amendment. There is ample precedent for an ad hoc amendment of these preferences.
In that connection, I would direct the Minister's attention to the provisions of the Social Welfare Act under which the State's entitlement to national health and unemployment provisions is protected in the case of insolvency. I have particularly in mind the Social Welfare Act of 1952, Section 58.
My amendment is defective technically and if the Minister accepts the principle, I think it would be necessary to improve the wording.
I cannot comment on whether or not the amendment is sound or defective but Deputy Byrne has suggested that there is some doubt as to whether holiday pay is synonymous with wages as used in the Preferential Payments in Bankruptcy Act of 1889. I have never heard that any worker was denied preference payment in this fashion.
I could advise the Minister of such cases. I suggest that if the Minister makes some research into the matter in his Department, he will find there have been such cases reported to his Department quite recently, of which I have personal knowledge.
I have not been advised of any case in which this has arisen. It would require some research. As the Deputy knows, his amendment came in at a very late stage.
I am aware of that.
It is not possible for me to say whether the amendment, as proposed by the Deputy, is defective in any way from a draftsmanship point of view. I would suggest that in ordinary bankruptcy cases, the official assignee would have no trouble in construing entitlement under this Act for holiday payments as wages as used in the Bankruptcy Act of 1889. I do not think it is necessary to accept the amendment.
I would differ from the Minister on that. Indeed the best legal opinion on the matter makes it quite clear that holiday remuneration does not rank as wages for the purpose I am speaking of. I should point out that in the British Companies Act of 1948, it was found necessary to clarify this and to amend "preferential claims" in previous British Companies Acts and specify that holiday remuneration should rank as preferential claims. If the Minister would have another look at the matter between now and the time this Bill reaches the Seanad, he might see his way to accept the principle involved.
Amendment, by leave, withdrawn.
Sections 19 to 25, inclusive, and Title, agreed to.
Bill reported with amendments.
When is it proposed to take the next Stage?
I am prepared to let the Minister have all stages now. Would the Minister indicate the date the Act will come into operation?
Immediately it leaves the Seanad.
Bill received for final consideration and passed.