Seanad Éireann díospóireacht -
Wednesday, 2 Aug 1961

Vol. 54 No. 16

Holidays (Employees) Bill, 1961— Second and Subsequent Stages.

Question proposed: "That the Bill be now read a Second Time."

Minister for Industry and Commerce (Mr. J. Lynch)

The purpose of this Bill is to give all non-agricultural workers a statutory right to a minimum of two weeks holidays each year, with pay, plus the public holidays, or compensatory leave or pay for employees who may have to work on a Public Holiday. This represents an increase of one week in the present minimum provided for in the Holidays (Employees Act), 1939. The 1939 Act did not apply to workers whose remuneration exceeded £350 a year. There is no wages ceiling in the new Bill. The figure of £350 specified in the 1939 Act bears little relationship, of course, to present day money values. I had considered the desirability of an appropriate increase in this figure but I have now decided that it is not really necessary to prescribe any upper wage limit in the Bill.

The definition of "worker" in the Bill is, therefore, a wide one but it is necessary to take power to make special provision for certain classes of workers, for instance, insurance agents paid on commission. The position is being met by a provision which will enable the Minister to make regulations bringing classes of persons within the scope of the Bill.

Since 1939, a considerable number of workers have, through collective bargaining between trade unions and employers or otherwise, secured an additional week's annual leave. Many workers have a statutory right to this extra leave by virtue of Orders of the Labour Court, made in accordance with proposals of Joint Labour Committees, or by virtue of Agreements registered under the Industrial Relations Act, 1946. The Government would have preferred if all workers had been able to secure these additional holidays by collective bargaining. However, it is clear that many workers are not in a position to do so. It is mainly to bring the holiday allowance of these workers up to the present accepted standard that the Bill is being introduced.

The Bill is a consolidating and amending measure. It will cover all classes of workers, irrespective of salary or type of employment. It proposes to abolish the distinction in existing legislation between workers who have a separate entitlement to public holidays and workers who have no such entitlement but get additional annual leave. If this distinction were retained, certain employers, for instance those in Sunday trading shops and refreshment houses, would be obliged to give their workers three consecutive weeks' annual leave in the year without any option to give days off, or compensatory pay, in lieu of public holidays. I am satisfied that a greater flexibility than this would be beneficial to both workers and employers.

As I have said, the Bill provides that workers should get six public holidays in the year with pay. In general, under the Conditions of Employment Act, 1936, the carrying on of industrial work on public holidays is prohibited. There are, however, a number of exceptions to this, for example, some types of shift work and work covered by special exclusions. In non-industrial employments many workers would, in the normal course of their employment, be required to work on all or most of the public holidays. Even where public holiday work was not a normal feature of his job, a worker might, in exceptional circumstances, have to work on an odd public holiday. It is, therefore, necessary and desirable to retain the various alternatives which existing legislation provides to cover such cases.

A worker who is required to work on a public holiday will, therefore, be entitled to one or other of the following:—

(a) a day off, with pay, within a month; or

(b) an additional day, with pay, added to his annual leave; or

(c) extra payment for the public holiday.

The 1939 Act provided for payment of a worker who worked on a public holiday and who was not given a compensatory holiday, at a minimum rate of time and a quarter. The Bill proposes that this rate be increased to double time. The qualifying period in the five weeks preceding a public holiday which a worker must work before becoming entitled to the Public Holiday with pay is being reduced from 150 to 135 hours. This takes account of reduction in working hours in recent years and allows a reasonable margin to cover short-time working, sickness or other casual absences. Other new provisions in relation to public holidays are that days of annual leave and hours lost through wet-time will count as hours worked in the qualifying period.

The qualifying period of work for adult workers for the purpose of qualifying for annual holidays is also being reduced from 1,800 to 1,600 hours in the year. Here again, wet-time up to a maximum of 250 hours will count as time worked. It is the practice in some employments that workers get, at present, in addition to one week's annual leave and public holidays, other days off with pay. These days may be Church holidays or other holidays customary in particular parts of the country. I think that many of these workers and their employers would wish to continue such arrangements. Accordingly, the Bill contains a new provision that such extra holidays may be counted as annual leave up to a maximum of seven days in any year.

The Bill re-enacts provisions in existing legislation about the payment to workers, who leave employment before they receive annual leave, of an appropriate proportion of holiday pay. This payment is known as "cesser" pay under the 1939 Act. With the increased annual leave, the amount of cesser pay to which any worker will be entitled in respect of a particular period will, of course, be proportionately higher under the new Bill. Furthermore, the monthly qualifying hours for entitlement to cesser pay are being reduced from 150 to 135, in line with the reduction in the qualifying hours for annual leave entitlement.

A number of provisions in existing legislation are being retained either unchanged or with minor amendments. For instance, the Bill continues the provision that an employer who dismisses a worker immediately before a public holiday must, if the worker has worked for the qualifying period, pay him a day's pay in respect of the holiday. Workers will continue to be entitled to get annual leave within their employment year, that is a year counting from the date or anniversary of the date, of entry into employment. A worker whose remuneration includes board and lodgings must be given a specified daily allowance in lieu while on holidays but the rate of allowance prescribed in the 1939 Act is being appropriately increased. The Bill in its present form is, in many respects an agreed measure, and it is the Government's hope that it will be brought into force without delay so that workers may get early benefit from its provisions.

Professor Hayes

This is an acceptable measure. As the Minister said in conclusion, it represents agreement, that is to say, it has been in operation to a great degree for some time past, owing to collective bargaining between employers and workers. It also reflects a degree of flexibility which is very desirable. It is an example of legislation which carries out the principle that the State should not initiate this kind of legislation but when sufficient advances have been made owing to agreement, or what one might call enlightened thinking, then the law should step in to see that everyone gets the benefit of the collective bargaining and nobody is allowed to escape because of certain circumstances or perhaps the weakness of certain classes of employees.

A good deal of it has been in operation for some time. I am not an employer but over a long period, when one could have domestic service, one gave a fortnight's holidays, which is now put into the law. It is very desirable when agreements have been made, that they should get the force of law, as in this Bill. I suppose from the point of view of employers, it could be said—and I am not able to speak for them—that conditions should not be made which would be too onerous for small people or those not already well established in industry. It would appear from general practice that there is nothing in this Bill in that regard. The Bill is acceptable and I think it should get its Second Reading.

Mr. Murphy

I welcome this Bill, even though I regret it has been so long coming to us. The trade unions have for years past been pressing for a measure such as this, and it is quite true, as the Minister said, that it is largely an agreed measure. It is coming to us in the Seanad in the first week in August, right on the eve of the general holiday period, and I could be justly critical of the fact that it is coming to us at this time, when it should have come to us long ago. The Bill did not see the light of day until the Labour Deputies in the Dáil introduced a measure themselves—I am speaking from memory on this—and then the Minister brought forward his Bill.

We are in the situation here that we are cluttered up with Bills right before the holidays. This has been said before and it is appropriate to say it again now: surely if the Dáil was over-burdened with work, this Bill and indeed others could have been introduced in the Seanad and then found their way down to the Dáil? I know that important amendments were proposed in the Dáil on Committee Stage by the Labour Deputies on behalf of the trade union movement and we have not got the verbatim report of the Dáil Debates. I do not know from reading the papers what happened in regard to those amendments. We have not had an opportunity of studying what was said in favour of and against the amendments and to judge the weight of the arguments. It is all right to say that we can wait and see the reports when they become available, but we are on the eve of the holiday and the Minister has said that he is anxious that the Bill should be enacted as soon as possible so that the workers should have the benefit of it.

The Bill provides that it shall have effect on the date appointed by the Minister. I hope that in his reply the Minister will tell us what his intentions are in that respect. I am a little puzzled as to how that will affect the situation at the present time, because it appears to me that on the date appointed, the workers will be entitled to count the employment year current at that time for the purpose of getting any benefit they might be entitled to under this measure, so it seems that the earlier the date appointed by the Minister, the more benefit it will be to the workers affected. For that reason, I am sure the Minister will appreciate my difficulties in speaking on behalf of the trade unions. I do not want in any way to hold up the passage of the Bill, but on the eve of the holidays, I have not got a copy of the Dáil Debates on Committee Stage and I am not able to look again at the trade union amendments, and at the arguments put up by the Minister in opposition to some further amendments proposed by the Labour Party Deputies on behalf of the trade union movement.

However, having said that, as I have already indicated, this measure is largely an agreed one and I should say on behalf of the trade union movement that we welcome the Bill. We are glad that at last it has seen the light of day and at last is likely to become the law of the land. I think it would be wrong if we exaggerated the position, because, as Senator Hayes has pointed out, what we are doing here is largely writing into law what has generally been secured by the trade unions in respect of organised workers. It is quite some time now since the fortnight's holiday became the general practice by reason of trade union definition. I speak from memory again on this, but I think the fortnight's holiday has been general for organised workers since away back in 1948 or the early 1950's. It is right that the law should come in and say that this is now the general practice and in so far as it is not applied to unorganised workers protected by trade unions, it should be made obligatory that they get the advantages regarding holidays and other improvements provided in this Bill.

I am glad the Bill has dropped the question of an income limit. The old Bill had an income limit of £350. That is largely inappropriate in the present circumstances, and because of that income limit and the change in money values meantime, the law as it stands at present is applicable to only a very small handful of workers, particularly women workers in receipt of £350 or less per annum. I am, therefore, glad that the income limit has been removed and I think that the Minister was wise in not putting in any limit at all.

I should like to express my disappointment that provision has not been made for providing that Good Friday will be regarded as a public holiday. I know from my old days in the Cork Workers' Council that it has been the view of the trade union movement for decades that Good Friday should be a public holiday and that those people who are required to work on Good Friday should get compensation by way of an extra day or a day in lieu.

The next point I want to make in concluding—and I hope that I am not opening up a general discussion on this matter—is to ask the Minister how the minimum provision embodied in this legislation compares with similar provision in other countries in the European Economic Community. The tendency must be to even up or even off the conditions generally, and I think it could be said that the fortnight's holiday provided in this Bill is below the average provided for in the other Western European countries. I do not want to open a wide debate on this, but to ask the Minister if he has any information; if what I suppose is true, that the fortnight is well below the average, it could not be thought that this Bill would be regarded as onerous to employers. Most of the employers already provide for a fortnight or more holidays, and it is right that the Legislature should come in now and say for the minority remaining that they also should have at least these minimum conditions.

Business suspended at 6 p.m. and resumed at 7.15 p.m.

Mr. Burke

The provisions of this Bill require all employers to give what is at present being given, and for many years has been given, by all except a very few. The Minister showed a sense of realism, particularly in a country like this, which deals with so many perishable foods, when he allowed national holidays to be substituted for by another day's holiday if the employer so opts.

Senator Murphy pressed the point with regard to Good Friday and said that organised labour has for a long time been seeking to have Good Friday made a national holiday. I think such an arrangement would cause great difficulty for industries which deal in perishable goods. If Good Friday were made a holiday, Easter Saturday would be a half day; Easter Sunday would be a full day; and Easter Monday another holiday. It would be impossible to handle perishable goods of any sort, if we had all those holidays together.

Further, there is a very high seasonal demand for all perishable products. Icecream, meat, foods of all descriptions, bread, confectionery and everything else, reach peak demand, probably, over the Easter week-end. If a national holiday were made obligatory on Good Friday, it might cause dislocation in trade, and it would possibly cause complete dislocation in the shipping of these products, many of which must be shipped, because they would otherwise be lost. I believe the Minister was right and prudent in the course he has taken in that regard.

There is one subsection upon which I should like the Minister to comment, as it may be going a little too far. He proposes to require employers to give holidays if they employ domestic servants for two weeks or longer. I think that is going further than one should in this type of legislation. The employee covered by this is conceivably working for four or five different employers in the one day or may be working for one person. This may cause a great deal more hardship and inconvenience if it is one person, particularly if it is an old person who relies on the domestic help to come in in the morning, get breakfast and arrange things for the day. Two weeks would mean a great deal of hardship for an old lady depending on that type of assistance.

Have the provisions of this Bill been compared with similar legislation in Western Europe? Some time ago, I saw a schedule taken from the Financial Times. I am sorry I have not got it with me, but so far as I can remember, working hours in this country are lower than in any other Western European country, except France or Britain. Our average working week is lower than the working week in the Scandinavian countries, the Low Countries—Holland and Belgium— Switzerland, Italy and Western Germany. It is necessary that we should not make legislation that might put us at a disadvantage in relation to people with whom we must compete in Common Market. Even if there were not a Common Market, if we wished to progress industrially, we would still have to compete and would be at a further disadvantage if we tried to give conditions here which our competitors do not allow their workers to enjoy.

Mr. O'Quigley

There is not a great deal to be said on this Bill, it being, as the Minister said, a consolidation, with amendments, of existing legislation. Everybody agrees with the principle of affording minimum holidays to all classes of workers. It is not clear, however, when the Bill is to come into operation and I should be glad if the Minister would indicate that. Most of us are anxious that no worker in the current holiday season will be deprived of the benefits of the Bill and, therefore, we are anxious to let the Minister have all Stages, subject to amendments which can be taken this evening or tomorrow.

I do, however, in that context emphasise, without repeating what Senator Murphy has said, the unsatisfactory manner Bills come to us at this late hour of the day. It gives no chance to anybody to make the detailed study of the Bill that ordinarily would be made. I am aware that there were certain amendments in the Dáil and their fate I do not know. I think I heard the division bell ringing during the last few days when the Bill was debated in the Dáil but I do not know if any amendments were accepted. Apparently they were not.

There is one thing that strikes me about legislation of this kind which is intended to benefit all classes of workers except agricultural workers— we shall deal with them later. To ensure that the people the Bill intends to benefit do, in fact, benefit, it is not enough to enact a piece of legislation, declare it law, fix penalties, provide means whereby persons can be prosecuted for failure to observe it. We should go further. I would ask the Minister if he has any machinery in mind or whether it will be possible for him within the limitations of the Bill to ensure that it will be effective as far as all classes of workers and employers are concerned. In some of the legislation under the Factory Acts, it is stipulated that certain notices shall be printed and put up in factories setting out minimum standards of safety. The question of posting up such notices in relation to this Bill does not arise.

I should like to see it being obligatory on employers who employ anybody other than casually to make available to the workers a summary of the principal provisions of this Bill in relation to their entitlement to public holidays and to the substituted benefits which people are entitled to if they do not get certain kinds of holidays to which they are entitled. That is the only way in which you will ensure that the person employed in isolated employment, working, perhaps, in a small office in a small town and who has no connection with other employees, will become aware of his entitlement to annual and other leave under a Bill of this kind. Very often the people who are most neglected are the people living in isolated areas, people who are employed in small concerns, mostly offices, and places of that kind. These are the people who stand in the greatest need of protection from the Legislature and who do not have the valuable protection which trade unions can afford to them. I should like the Minister to indicate whether any such thing as that is contemplated.

Again, the Minister can point to the provisions of the Bill whereby the inspector appointed by him can require employers and employees to give certain information which will enable the inspector to ascertain whether the provisions of the Act are being complied with in respect of particular persons. I should prefer people to be in possession of the knowledge of what is contained in this Bill and what they are entitled to rather than to have inspectors going round and finding it out for themselves.

I think the abolition of the income limit of £350 is much overdue and, consequently, much to be welcomed. In relation to subsection (3), there is not any clear indication in the White Paper as to why certain persons are being excluded from this Bill. In particular, I refer to the persons in category (h), persons employed by the State. The State, as I pointed out on another Bill recently, is quite a different entity from the Government. I am wondering whether the Minister might be able to indicate now or on Committee Stage what is meant by the term "the State" in paragraph (h) of Section 3. Apart from that, I welcome the Bill as an improvement on the existing position. Before concluding, let me express the hope that this kind of legislation will not be taken as the maximum by employers but that it is intended to be a minimum. I should hope that with the passage of time it will be regarded as a minimum and not a maximum.

Mr. J. Lynch

I am glad the Bill has received general approval from the House and that any comments on it have been of a minor nature. I am surprised that Senator Murphy raised a question as to why this Bill was not introduced sooner. In fact, when I saw the number of Labour amendments in the Dáil, it occurred to me to inquire why it was not introduced far sooner, some years sooner, especially when one remembers that the Conditions of Employment Act which first provided for paid holidays for workers was passed in 1936. The next Act was passed in 1938 and another one was passed in 1939. We find that a period of 21 years elapsed. Labour Ministers had opportunities in between and Senator Murphy may well ask why this Bill was not introduced sooner.

I am only saying that because Senator Murphy claims it was a Labour motion in the Dáil that prompted the introduction of this Bill. I was in a position to answer, when discussing that Labour motion, that the Government had decided to introduce a Bill embodying these provisions. I do not want to score minor points off the Senator but I think I can be forgiven if I do not resist this one. I have been in office for just two years and there were six years of Labour ministries. The Leader of the Labour Party was Minister for Industry and Commerce for three years and we did not see this Bill appearing any sooner than in the summer of 1961. The years I have given—1936, 1938, and 1939—are significant. They were years when Fianna Fáil were in office. There was no improvement on the provisions of these Bills until now, when Fianna Fáil are back again in office. I hope the Senator will forgive me for making these points. I could not resist doing so.

Mr. O'Quigley

They are fair points.

Mr. J. Lynch

As far as the suggestion that Good Friday ought to be included as a public holiday for the purposes of this Bill is concerned, that was one of the amendments put down by the Labour Party in the Dáil. I pointed out to them that the public holidays as declared are the usual ones —Christmas Day, St. Stephen's Day, St. Patrick's Day and the bank holidays; that the declaration of a public holiday is a matter for the Government under the Public Holidays Act, 1924 and that, until such time as it is declared a public holiday, it is not the intention to include Good Friday for the purposes of this Bill. There is provision in the Bill whereby the Minister can by regulation declare a new public holiday so declared and so enacted by the Oireachtas to be a public holiday for the purpose of this Bill. The Labour Deputies accepted the situation and withdrew the amendment.

The Senator also asked me how our legislation compared with similar legislation in the European Economic Community countries. In the first place, I should like to point out that this country has a very good record as far as the implementation of International Labour Office conventions are concerned. When one compares this legislation with the legislation in these Common Market countries, one will agree that we in this country have a good record.

In France, there is a minimum vacation period in a year of 18 days as against our 12 days. They have five legal holidays which, I take it, correspond to our public holidays, making a total of 23—somewhat in advance of us. In Belgium, they have six days as minimum vacation, but 10 days which are legal holidays. Therefore, in that respect, we are in advance of Belgium. In Italy, they have ten days, somewhat less than our minimum vacation period, but they have 16 public holidays. I do not know how they work out 16—it seems a very high number—but, taking the two together, they are somewhat in advance of us. Western Germany has 12 days minimum vacation period, which is the same as we have now, but they have ten to 13 legal holidays, I take it, public holidays. Perhaps the variation applies to different parts of the country. In the Netherlands, they have 12 days minimum vacation period and a variation of six to ten public holidays. Luxembourg has eight days minimum vacation period and ten public holidays. Generally speaking, we compare very favourably with the other Common Market countries.

What Senator Burke has said about the net hours of work in the year in relation to these countries is quite true also. We are somewhat lagging behind most of them. We are in advance of France: I do not think I need give the figures. I shall give our figures—2,184 net hours of work per annum. We are in advance of France in that respect and much the same as Britain, because they vary. Their lower limit is lower and their higher limit is higher. We are lower than Belgium, lower than Italy, higher than the minimum in Western Germany, but much lower than the maximum. We are much lower than the Netherlands and much lower than Luxembourg.

Mr. Burke

Could these very interesting figures be put on the records of the House? We may not be able to get them as conveniently as the Minister.

Mr. J. Lynch

Certainly; it will not take very long to give the figures if the House will bear with me. The heading is: "Net Hours of Work Per Annum" and the figures are—France, 1,920; United Kingdom, 2,192-2,152; Ireland, 2,184; Belgium, 2,212; Italy, 2,288; Western Germany, 2,296-2,140; the Netherlands, 2,352-2,320; Luxembourg, 2,352. I do not think I need comment further on that. As I was asked the question by the Senator, I thought it only fair to give the figures.

Senator O'Quigley shares Senator Murphy's criticism that the Bill has come so soon to the Seanad. Unfortunately, I, too, would have liked to give the Seanad the opportunity of reading the Dáil debates and seeing exactly what happened. Senator O'Quigley says he heard the division bell ring, but did not know what happened. I do not blame him for that, either, because his colleagues in the Dáil cleared out of the House when the division bell rang and did not vote. Therefore, they probably did not know what happened, either.

The division bell rang for the one amendment on which the Labour Party divided the House. That was the proposition that, instead of giving two days' pay to a person who worked on the holiday, he should be given three days' pay. I submit to the House that the two days' pay, which is in this Bill, is a considerable advance on the status quo which provided one and a quarter days' pay. I thought that a reasonable minimum compensation for the person who had to work on a public holiday. Of course, he had the option of getting another day off in lieu within a month if he had to work on a holiday, plus his extra day's pay or a day added to the end of his holidays. I thought it would be pretty difficult for some employers to be obliged to pay three days' pay or to give a day off plus two days' pay in lieu of a public holiday. The Labour Party divided the House on that and got no support other than that of the few members of the Labour Party who were present in the House.

Mr. O'Quigley

I am obliged to the Minister for bringing us up to date.

Mr. J. Lynch

That, and other amendments submitted by the Labour Party, were in fact propositions that were put to me before the Second Reading by the Irish Congress of Trade Unions. They put other propositions —for instance, a proposition to reduce the minimum number of hours worked which would qualify a person for annual leave and a proposition in relation to the minimum number of hours worked which would qualify a person for entitlement to holiday pay, that is, public holiday pay. I met the Irish Congress of Trade Unions not fully, but I do not think they expected I would. I reduced the number of hours in each respect from what appeared originally in the Bill to some half way between what the Congress proposed and what was in the Bill. The Labour members, nevertheless, put down their amendments. They said they did not know, apart from an undertaking given on my behalf by the Minister for Transport and Power, who handled the Bill in the Dáil, what my intentions were.

The undertaking was to the effect that I proposed to meet as far as I could the point of view of the Irish Congress of Trade Unions. Nevertheless, not having fully indicated how far I would go, the Labour Party felt constrained to put down amendments in conformity with the actual wishes of the Congress. Having heard my argument in each case, except in relation to the three days' pay for holiday work, they withdrew the amendments. I think that puts the House fully into the picture as far as the amendments are concerned and will also justify to a degree my suggestion in my opening statement that it was largely an agreed measure.

Senator Burke mentioned the hard case of the poor old woman who employs domestic help for two hours a day. Hard cases make bad law.

Mr. Burke

There are many of them unfortunately.

Mr. J. Lynch

It is impossible in a measure like this to legislate for every contingency. Nevertheless domestic workers are entitled to the minimum statutory entitlements. The fact that a minimum of two hours per day is required of a domestic worker to qualify for annual holidays relates roughly to the level of wages received. If a person who works for two hours a day is entitled to holidays, that same person can forgo the holidays but can get compensation. The compensation will be related in proportion to the pay of the person for two hours' work per day, which will be low, in any event.

By and large, I do not think the measure will impose an undue hardship on a person who can afford to employ domestic help. I can appreciate that there are poor old people who get domestic help and who can ill afford to pay for it. Perhaps voluntary organisations can give some measure of help in this respect. It would be wrong to deprive domestic workers generally of their statutory minimum entitlements under this Bill. I think the Seanad will agree it would be impossible to legislate for this very select class.

These were the only points raised in the Bill. I am glad the Bill has received the acceptance it has received in this House.

Pádraig Ó Siochfhradha

Ba mhaith liom ceist a chur ar an Aire faoin mBille seo. Cé a chinnteoidh cathain a rachaidh duine ar laethanta saoire?

Seán Ó Loinsigh

Sin rud a réiteofar idir an fostóir agus an duine atá ina sheirbhís.

Pádraig Ó Siochfhradha

Má tá deichniúr oibritheoirí ann agus go dteastaíonn ó seisear díobh tréimhse áirithe a bheith saor acu agus nach dteastóidh an tréimse chéanna sin ón gceathrar eile, cé a chinnteoidh go rachaidh said ar saoire?

Seán Ó Loinsigh

De ghnáth, bíonn na daoine sin i gceard chumann. Réitíonn siad leis an bhfostóir cathain a rachaidh na hoibritheoirí ar saoire. Mura bhfuil ceard chumann ag an daoine sin, ba chóir go nglacfaí le tuairim formhór na noibritheoirí agus na laethanta saoire a thabhairt ag an am sin.

Pádraig Ó Siochfhradha

Tá contúirt ann nach réitheoidh duine nó beirt leis an socrú chun dul ar saoire agus nach mbeidh obair an tí nó an ghnó ar súil i gceart nó go mbeadh sos ann ar fad. An mbeadh an duine nó na daoine nach rachadh ar saoire ag an am sin díomhaoin?

An Cathaoirleach

An mbeadh sé níos fearr é sin a phlé ar Chéim an Choiste?

Mr. O'Quigley

When does the Minister intend to bring the Bill into operation?

Mr. J. Lynch

When it is enacted it is to come into operation on such day as the Minister may by order appoint. As soon as the Bill passes in this House and receives the President's signature, I shall make the order immediately in order to make it operative for the current period.

Question put and agreed to.

Agreed to take remaining Stages today.

Bill considered in Committee.

SECTION 1.

Question proposed: "That Section 1 stand part of the Bill."

Mr. O'Quigley

I understood the Minister to say that it is intended to bring this Bill into operation as soon as it is signed by the President. I am wondering, if this Bill is passed today, can it be signed in time by the President so that it will apply to the August bank holiday. It is a matter for the Leader of the House to decide whether a motion for earlier signature is necessary, if it is desired to bring it in.

Mr. J. Lynch

We could consider that motion on the Fifth Stage, and the House might agree to it.

Question put and agreed to.

Section 2 agreed to.

SECTION 3.

Question proposed: "That Section 3 stand part of the Bill."

Mr. O'Quigley

We have had some outstanding examples of bad draftsmanship in a number of Bills that have come before the House recently. The most outstanding and disgraceful example was the Courts of Justice and the Court Officers Superannuation Bill of 1961. That is a piece of legal gibberish which has no parallel in the statute laws of this country and perhaps has no parallel in the statute laws of any other English-speaking country. It is pity to see Bills of this kind going through in such haste.

Section 3 is something which strikes me as being incorrect. It is a typical piece of slipshod draftsmanship that should not appear. We find in Section 3 that ‘"worker" means any person of the age of 14 years or upwards who is employed, other than a person who is—' and it goes on to give the details. Paragraph (d) says "a lighthouse or lightship employee"; paragraph (e) says "a clergyman in Holy Orders" and then we have this kind of stuttering in regard to paragraph (h): "a person who is a person who is employed". The "a person who is" in paragraph (h) should not appear. The House should delete that and not have this kind of slipshod draftsmanship. Frankly, I feel ashamed when my colleagues ask me: "What do you mean by this?" Perhaps the Minister will deal with this and I will deal with a different matter later.

Mr. J. Lynch

Perhaps it might be tidier as the Senator suggests, but this drafting has stood the test of time for 21 years and I do not think the change is necessary. It is just a tidying-up job, if you like.

Mr. O'Quigley

It is not grammatically correct. I am not saying anything about the content but just the form. We have paragraphs dealing with a number of classes. Paragraph (b) deals with agricultural workers; paragraph (c) deals with masters and crews of vessels; paragraph (d) with a lighthouse or lightship employee; paragraph (e) with a clergyman in Holy Orders; paragraph (f) with a member of any Religious Order of Community; and then paragraph (h) "a person who is a person who is employed by or under the State." That does not make sense and does not accord with what is in the other paragraphs. That is the kind of thing we should not allow to go through in our statutes.

Mr. J. Lynch

I can only suggest to the Senator that since he expressed the desire that the Bill should go through quickly there is a danger in accepting his suggestion now and that if it has to go back to the Dáil, it might have to wait for a new Dáil to enact this very minor and legally unnecessary amendment. It may be redundant and it may be to an extent—I would not call it bad English——

Mr. O'Quigley

It is not English.

Mr. J. Lynch

At most we will call it redundant. I would suggest to the Senator that he might drop the point. I agree he has a good point, but, on the other hand, it does not affect the validity of the Bill. If I were to accept an amendment, I might not get back to the Dáil before a new Dáil was convened and certainly the workers would not get the benefit of the Bill for the current holiday period.

Mr. O'Quigley

I see the Minister's position. The plain fact is that we are enacting legislation which is not what it should be and it does not do any credit to the Legislature and its knowledge of English, or those who are employed as draftsmen. Having said that, we will leave it, because it is not my intention to deprive any workers of the benefits this Bill may give them in respect of the coming bank holiday. It does underline the desirability of regarding Seanad Éireann as a House of the Oireachtas which has the function of revising Bills that come from the Dáil. We should not be put in the position that if we do not pass a Bill quickly, some people will be deprived of the benefits which the Bill is intended to confer on them.

Mr. J. Lynch

I think the Senator knows well that there are slips like that in many Bills which do not affect their validity.

Mr. O'Quigley

We find a lot of the time taken up in court deciding what did the Legislature mean when they say "a person who is a person who is."

Mr. J. Lynch

That is as clear as a pikestaff.

Mr. O'Quigley

There was the case of the Malicious Damage to Property Acts of 1861 when the court said that there was something in an amendment that did not make sense and they had to make sense out of it. People talk about the costs of litigation and of lawyers, but the Legislature ought to do its job and it is manifest, particularly in this kind of case, that the Legislature is not doing its job properly.

I want to ask the Minister in relation to paragraph (h) which refers to "a person who is employed by or under the State not being a person so employed in an unestablished position" and so on, would he indicate what category of people these are, because I cannot quite understand what is meant by "employed by or under the State."

The Minister might appreciate my point when I say that the State in my conception, is one entity and somebody employed in the Department of Industry and Commerce is another entity. The State embraces the Government but the Government does not extend as far as the State. They are separate entities, and I wonder, when it comes to enforcing this section, what the Minister has in mind. Does "State" mean persons merely employed in the Civil Service, or persons employed anywhere who are paid out of public funds?

Mr. J. Lynch

The definition, I am told, is one supplied by the Department of Finance and accepted by the Department of Industry and Commerce as meaning people employed in unestablished positions under the State as opposed to established civil servants. The Senator knows what an established civil servant means.

Mr. O'Quigley

I do not think that is quite so, because as far as the Department of Finance is concerned, it was badly caught out in its definition of what constituted employees of the Government and so on, as was exemplified in the case of the Social Welfare Act, and the Civil Service Regulation Act of 1956 and the Civil Service Commission Act 1956 both took care of that. The Minister for Industry and Commerce and his Department will be well aware of the decision in Fawcitt and the Minister for Industry and Commerce, which was related to compensation to be paid to the plaintiff in that action for the taking over by the Minister for Industry and Commerce of phosphate lands in Clare during the war years. The question arose whether or not the Land Acquisition (Assessment of Compensation) Act 1919, applied in that case. It then transpired that the Minister for Industry and Commerce was a different entity from the State.

I wish that people in drafting Bills would have some regard to the meaning of these words as interpreted by the Supreme Court when it is laid down that the Government is one entity and the State is a different entity. If people would have regard to the initial provisions of the Constitution of Ireland, they would realise that there are three organs of State —judiciary, legislature and executive. These three are separate and distinct, and there are other organs of the State such as the Comptroller and Auditor General and the Attorney General. If we are putting into legislation a word such as "State," we ought to define what we mean by it or at least be able to say whether it means a Government in control of the Civil Service or merely those who are not employed by the Government— such as people employed in the office of the Comptroller and Auditor General in the courts, in the office of the Attorney General and such other people. It is a bit unfair to ask the Minister to give an authoritative view of what is meant by this word in this context. I do not think it has any real meaning. I suppose that in the helpless, hopeless condition we are in at the beginning of August, 1961, there is nothing we can do about it but let it pass.

Mr. Cole

As regards the first part of what Senator O'Quigley has raised, I thought that there were some provisions in Standing Orders under which this could be amended by the Chair. Perhaps they do not go as far as that. I would like to raise a point on paragraph (g), which refers to a person other than a person who is wife, husband, etc., but does not refer to an adopted or an illegitimate child. I raise this because I see that under the Civil Liability Bill there are definitely included in subsection (2) of Section 47 persons adopted under the Adoption Act, who shall be considered legitimate offspring. It might be very important. Sometimes illegitimate children live in the house, too, and they would be workers as the son of the house would be. I feel that paragraph (g) should go that much further and include these two other categories.

Mr. O'Quigley

I think the Senator has a good point.

Mr. J. Lynch

I do not know whether the Adoption Act has any provision——

Mr. Cole

Apparently not.

Mr. J. Lynch

——declaring that an adopted child shall have the same rights and advantages as a natural child, but in any event——

Mr. O'Quigley

Not a natural child —a child born in lawful wedlock.

Mr. J. Lynch

The Senator knows what I mean. Under subsection (3)— and I think this might meet all the points—I have power after consultation with Ministers of State—the word is here again—and with "such employers' and employees' organisations as he considers appropriate" to make regulations providing that any person or any class of persons shall be deemed to be a worker for the purposes of the Acts. Under the regulations, any cases of difficulty as envisaged which arise can be dealt with, and I suggest to the Senators that the power which can be used to make regulations will cure any defects that might appear.

Mr. Cole

The Minister could not make regulations retrospective. Suppose an adopted child or an illegitimate child brought an action to enforce some of the sections of this Bill, the Minister would find it very embarrassing to make regulations then to govern a case already started.

Mr. J. Lynch

I agree that it could not be made retrospective.

Mr. Cole

Unless the Minister was prepared to make that regulation at the same time as the Bill goes into force.

Mr. J. Lynch

I will undertake to examine the point very quickly and will make an early regulation, if it is deemed necessary.

Mr. Burke

I should like to raise a somewhat similar point. Naturally, this will apply to the head of the house, who will be the person responsible for seeing about the people who are employed. It often happens that an orphaned nephew of the wife is living in the House. I should like the Minister to examine every possibility because we do not want to have friction among families, by giving people legal rights this Bill never envisaged. Legal action might be instituted at a later stage in which there might be no equity, but the law would give the people right and powers which they should not enjoy. I think that is the point Senator Cole wants to cover also.

Mr. Cole

The two cases I mentioned should be included. We often find distant relatives being imposed upon and denied privileges which they should have.

Mr. Burke

Senator Cole knows that I do not want anyone to be imposed on. It is quite common in most countries for a relative of the wife or husband to live in the house. If it is a relative of the husband, it is all right, but if it is a nephew or a niece of the wife who is the orphan, there is no blood relationship to the husband. The Minister might consider that when making the regulations.

Mr. J. Lynch

These are exclusions. There is the overriding provision that the person must be employed. That is a sine qua non.

Mr. O'Quigley

There is probably a good deal in the question raised by Senator Burke. There is an attitude growing up nowadays and people who 10, 15 or 20 years ago might not have been remunerated for giving gratuitous services to relations are now succeeding in establishing in court that they are entitled to some payment and can regard themselves as employed. I think the case cited by Senator Burke is worthy of consideration because an orphaned nephew of 14, 15 or 16 years of age might not be regarded as being entitled to remuneration or holiday privileges. He may be regarded as a member of the family but perhaps some dispute might arise and he might try to apply the law with all its rigour at every point.

The Minister, in considering the case of the adopted child and the illegitimate child, should also consider applying this regulation to the person to whom the employer stands in loco parentis. In the Fatal Injuries Act, that peculiar relationship applies and it applies in some other statute which I cannot bring to mind at the moment. It deals with the case Senator Burke has in mind and would probably in all circumstances be fair as between the person seeking the benefit of a Bill of this kind, and the person responsible for much kindness in the upbringing of the person who found himself an orphan and had to be sheltered and supported. I am merely putting for the Minister's consideration that the person who stands in loco parentis should be covered.

Question put and agreed to.

Sections 4 to 7, inclusive, agreed to.

SECTION 8.

Question proposed: "That Section 8 stand part of the Bill."

Mr. McGuire

As this is the first section which designates the actual holidays embodied in the Bill, I should like to ask the Minister a question. The conditions imposed in this Bill have already been accepted by the organised employers in consultation with the trade unions as a result of collective bargaining. I notice that the Minister said in the Dáil:

When the Bill was in course of preparation, I received suggested amendments from the Irish Congress of Trade Unions and a number of these have been incorporated in the present text.

I should like to ask the Minister if the organised employers were formally consulted in the framing of this Bill or was their agreement merely noted at secondhand.

Mr. J. Lynch

The Irish Congress of Trade Unions made representations in respect of matters they wanted to redress. So did the organised employers, but only in regard to one matter on which I also met them. They made no other point in connection with any other part of the Bill. I should say that somebody—I think it was the F.U.E.—made a point about the entitlement to double pay for work on Christmas Day. That double pay was intended in the original Bill to take St. Stephen's Day into account. They asked for clarification and as a result of their representations, the Bill now specifically states that that payment is in respect of Christmas Day and St. Stephen's Day, in order to avoid any misunderstanding, that there should be double payment for Christmas Day plus St. Stephen's Day.

Mr. McGuire

The point I am trying to make is that if the Irish Congress of Trade Unions, or any other trade union for that matter, make suggestions to the Government which are, in fact, embodied in Bills, I think it is only fair and right that the organised employers should be informed of the proposals of the trade unions, considering that there is the original agreement from which everything has emanated. The trade unions might easily propose some changes not in fact operated by the employers under the collective agreement, and it seems to me that it is very important that in future if the trade unions make proposals, in fairness, the employers should be given a chance to see them before they are embodied in a Bill. As a matter of fact, I do not see anything in this Bill to which I would take objection. It is quite fair. As I have said, these conditions are already being operated. I just wanted to make the point clear for future reference.

Mr. J. Lynch

I think I can go further at this stage. There is no question that the employers accepted the main provision of the Bill which gives the extra week's holidays. One of the points on which the Congress sought consultation was the reduction of the hours for entitlement to a public holiday and annual holidays, and the F.U.E. were consulted on that point.

Mr. McGuire

That is what I was interested in.

Question put and agreed to.

SECTION 9.

Question proposed: "That Section 9 stand part of the Bill."

Mr. Burke

I should like the Minister to make it quite clear that the employer has an absolute right in respect of the substitution of another day, within, I think, five weeks or a month, to add the extra day to the holidays at his own option. Is that clear in the Bill?

Mr. J. Lynch

Provided he gives notice.

Mr. Burke

If an employer in a perishable goods industry finds on Monday next that it is not possible to give a holiday, could he add an extra day to the man's annual holiday or within four weeks, give him a whole day in lieu?

Mr. J. Lynch

Yes; it is at the discrimination of the employer but he must give 14 days' notice.

Mr. Burke

Fourteen days' notice? Giving such long notice could cause great inconvenience. It might happen that a number of workers were required to work on a bank holiday because other workers were sick or some reason like that and it might not be possible for the employer to give 14 days' notice. He would not know that people would become ill.

Mr. J. Lynch

I do not think employees are so unreasonable that they would not help out.

Mr. Burke

They will be reasonable, we hope.

Question put and agreed to.

Sections 10 to 17, inclusive, agreed to.

SECTION 18.

Question proposed: "That Section 18 stand part of the Bill."

Mr. O'Quigley

This is only a small point, but I should like to ask the Minister for how many years back can an employee recover money payable to him. I know it says in paragraph (b) that it may be recovered as a simple contract debt. That should suggest a period of six years. At the same time, however, that is probably only the procedure by which it might be recovered. Does it mean that a debt due under statute can be recovered up to 12 years? It is a matter on which I should like the Minister to express a view.

Mr. J. Lynch

It describes it specifically as recoverable as a simple contract debt. As to whether it is a debt due under statute, most statutes having been passed will declare the time within which a debt can be recovered and this says that the debt will be recoverable as a simple contract debt and therefore I suggest that six years is the time within which proceedings must be brought.

Question put and agreed to.

Section 19 agreed to.

SECTION 20.

Question proposed: "That Section 20 stand part of the Bill."

Mr. O'Quigley

I remember there was a somewhat similar provision in some other Bill and the Minister accepted an amendment which had to do with a prosecution for an offence by the Minister. Does this mean that these prosecutions will be taken in the name of the Minister as complainant or can the Minister act by his solicitor or other representative in court? I think there was some point the Minister might recollect with the Incorporated Law Society.

Mr. J. Lynch

I cannot recollect it.

Mr. O'Quigley

I cannot recollect it, either, I regret to say.

Mr. J. Lynch

A prosecution will be brought in the name of the Minister. The Minister need not be present. He can bring a prosecution by an authorised officer. People can bring claims in their own names but need not necessarily appear to give evidence on their own behalf. They can employ other people to give evidence, people perhaps who are in a better position to give it. I take it that this will be headed "The Minister for Industry and Commerce against John Murphy" and an inspector will be present to give the necessary evidence proving the case. I do not think there is any difficulty in that case whatever with regard to the point which the Senator says occurred before.

Mr. O'Quigley

If a trade union official or the worker himself prosecutes, will it be in the name of the Minister "in the suit of Thomas Jones" the aggrieved worker? This is a section that will have to be implemented at some stage. I do not know if it is a reproduction from some other Acts that have been repealed.

Mr. J. Lynch

It is exactly as it was in the original Act. An aggrieved person can bring a prosecution against his employer or his trade union can do so.

Question put and agreed to.

SECTION 21.

Question proposed : "That Section 21 stand part of the Bill."

Mr. Burke

I think in a manner this covers the point I raised with the Minister on a previous section, because it appears that if someone has contravened the provision about working on holidays, it will be considered a good defence if it was a case of emergency and was necessary. That short Section 21 covers that. It ends by speaking of any other emergency so the Minister and the people who drafted the Bill for him should be commended for that.

Question put and agreed to.

Sections 22 and 23 agreed to.

SECTION 24.

Question proposed: "That Section 24 stand part of the Bill."

Mr. O'Quigley

This is a section which enables the Minister to appoint inspectors to ask questions and to see that the Bill's provisions are observed. We all resent having inspectors, but there is no doubt they are necessary, if legislation of this kind is to be implemented. One thing is the approach of the inspector. The inspector is bound, if so required, to produce his certificate of appointment, but it would be a much better approach if the inspector came to the occupier of the premises or the employer and said: "I am an inspector inquiring into the observance of the Holidays Act, 1961, in this premises and, therefore, I am going to make certain inquiries". That is better than having someone ask: "what business is this of yours?" and so create a certain atmosphere. It would be far better if a person with a warrant of appointment from the Minister came to the person he was entitled to question and said: "I am an inspector appointed by the Minister for Industry and Commerce to make inquiries" and produced his certificate. I would hope the Minister will issue a directive to all inspectors on all occasions to produce the certificate first and to question and talk afterwards. That is likely to promote better feelings between the prying inspector and the person who may be possibly guilty of some breach of the law.

Mr. J. Lynch

I instruct my inspectors generally to declare their identity.

Mr. O'Quigley

I am glad of that and I do not know why the words are put in "if required".

Mr. Burke

There are so many provisions regarding inspectors and the poor employer has so many inspectors calling now that I doubt if any employer could give the number of inspectors who come one way or another. I find great difficulty in complying with certain regulations sought by inspectors because people who should give me the certificates I require cannot be got to give them. Where is it to stop with all the inspection? It was not Senator McGuire but Senator Hayes who, when the Minister had finished his introductory speech, said that what is being done here has been done by practically all good employers in the country. Sometimes I think we might want to turn back the clock and let them do their own job. The trade unions are nearly powerful enough to see that the employers will do the right thing. I wonder are we going too far in giving everything the force of law?

Question put and agreed to.

Section 25 agreed to.

Title agreed to.

Agreed to take remaining Stages today.

Bill received for final consideration.

Question proposed: "That the Bill do now pass."

Mr. McGuire

I think it desirable that social advances in the State should come more from enlightened thinking and demand by the citizens than that they should be initiated by the State. I am glad that in relation to this Bill the impetus has come from collective bargaining between the trade unions and employers. I think that is the basis of this Bill. The State is doing a good job of work by embodying in legislation agreements that have been arrived at in this way. We all know that there are people who are not either organised employers or workers who may have to work under totally different conditions which, if implemented, would not be fair either to the workers concerned or to the employers and would cause higher costs of operation.

I agree that this Bill has come in the right form, that is to say, the conditions in the Bill have really arisen out of collective bargaining and are not being imposed by the State. There is nothing that I can see in this Bill to which objection can be taken as being either unfair or too onerous on any employer, organised or unorganised. The Bill contains a reasonable range of holiday conditions and should find general approval.

Question put and agreed to.