Thursday, 21 November 1935
Dáil Éireann Debate
Mr. Fitzgerald-Kenney: I cannot allow this Bill, containing Section 43 in its present form, to pass through the House without making a very strong protest. Section 43 (2) in its present form is not only subversive of the principles upon which the administration of criminal justice is based, but it seems to me—I think it is hardly open to question—that it is opposed to the principles of natural justice itself. I shall read the section to the House:—
(1) It shall not be lawful for an employer to employ a worker to do any form of industrial work on any day on which such worker has done any form of industrial work for another employer, except where the aggregate of the periods for which such worker does industrial work for each of such employers respectively on that day does not exceed the period (exclusive of overtime) for  which such worker could lawfully be employed to do industrial work for one employer on that day.
(2) Whenever an employer employs a worker in contravention of this section, such employer shall be guilty of an offence under this section, and such worker shall also be guilty of an offence under this section.
When this Bill came before the House on Committee Stage, and this section was inserted as a new section, I drew the attention of the Minister to the fact that the wording of sub-section (2) did not provide for the insertion of the word “knowingly” before the word “employs”. I gathered from the Minister's attitude then that he would consider the representations I had made to him in a favourable light, though, on looking through the report, I find that he did not say so. Unfortunately, on the Report Stage he did not give effect to the impression I had gathered. On the Committee Stage, I pointed out the effect of the absence of this word “knowingly,” and the Minister's answer was that if the word “knowingly” were inserted, it would be impossible to obtain convictions. I am not much frightened by that, because the word “knowingly” appears in many statutes, and it has not been impossible to get convictions under them.
Knowledge, meaning thereby intention, is at the basis of our criminal code. I suggested to the Minister that “knowingly,” meaning “by the exercise of reasonable care,” or “after making due inquiries,” should be inserted, and I make the suggestion to him again to-day. As it stands, this is a horrible sub-section and is subversive of the principles on which our law is based. Let me take a concrete example so that the House may understand the working of this section and what it may lead to. A man's car breaks down; he goes to a garage and finds it closed. He meets a mechanic belonging to the garage and asks him to set the car right. He tells him that he wants to start off early in the morning and that he will require to have the car put right before the garage opens. The mechanic tells him that he will work a couple of hours on the car before the garage  opens next morning. He does so and is duly paid. He goes back to the garage in which he is employed, and works during the whole time that he is permitted by law to work in that garage. The employer has no means of knowing anything about the repair of the car. Subsequently, the Guards walk in with a summons for the employer and state that he employed a man in his garage for the whole period permitted by this Bill, that man having worked a couple of hours for somebody else. The employer says that he could not conceivably have known that his employee worked for somebody else. The answer will be: “That does not matter in the least; you have broken the law and you are liable to a fine of £10; here is your summons.” That is absolutely unjust. A man should not be deemed to have broken the law when he does some thing which he could not have known by the exercise of reasonable care or precaution was a breach of the law. An ordinary employer cannot be expected to engage detectives to see that his permanent employees do not do any work from midnight until they turn up at their jobs in the workshop. I leave it to the Minister to say whether the imposition of a fine in a case like that would not be extremely unjust. The employer, when brought to court, will say that he had no means of knowing that his mechanic had worked for anybody else, and he will be told that his knowledge does not matter, that the offence consists not in knowledge or in carelessness but in the act itself. No man should be punished for doing a thing when he could not have known at the time he did it that it was wrong.
We have a precedent in this Bill. I have never seen a clause like this in a statute before, and I do not believe any such clause has ever been inserted in a statute. If this section passes, it will be a precedent which may be followed in other instances, and it is absolutely subversive of the elementary principles on which the administration of the criminal law in this country is founded. The whole administration of the criminal law in this country may be said to be based upon an old Latin maxim “Actus non facit reum nisi  mens rea.” It is not the doing of the deed which makes the man a culprit, it is the guilty intention. Guilty intention is necessary for the commission of every crime. If a man shoots another, the very fact of his doing so does not make that a crime. The shooting may be due entirely to accident. The gun may have gone off unexpectedly. The man may have fired thinking, as a reasonable person might, that he was perfectly safe in doing so. If he killed a man, the mere fact of the shooting would not make the occurrence murder; it would not make it a crime at all. The verdict of a coroner's jury would be “death by misadventure.”
I want to take that as an illustration. You can take plenty of other examples to show that it is necessary, according to our criminal law, to have a criminal intent before you can get any crime. Taking the two assumptions of the law, one, that a man tends only to the probable consequences of his acts, and the other that a man knows the law, here you have that whole principle completely upset. You have a man with no guilty intention, a man who, in the instance I have given, has done nothing wrong, a man who endeavoured to the best of his ability to keep within the law. Yet, through the action of a third person, unknown to him, he has become a law breaker. I press the Minister as strongly as I can, now that the Bill is leaving this House, not to allow this principle to become permanently embodied in the statute in its present form. He should take advantage of the opportunities he will have in the Seanad to amend this sub-section. He can secure that guilty persons will be convicted by amending the section, but, it is perfectly wrong that there should be a sub-section in the Bill which makes persons who have not broken the law in any way, persons who are perfectly innocent in act and intention, law-breakers. I say that that is a very bad principle, and I appeal to the Minister to promise that, when the Bill is going through the Seanad, he will take steps to put the section right.
Mr. Norton: This Bill is leaving this House, I think, very much better than when it was introduced. The  utility of the Bill has been enormously improved as a result of the close examination made of it here. There are certain features in it, however, which I wish to see improved still further, notably the section which makes provision for the granting of holidays to workers, and also that portion dealing with the regulation of hours of work in industry. In respect to holidays, it is true that for the first time we are now providing holidays with pay for industrial workers, but we are providing the inadequate number of six days. The Minister on the Committee Stage endeavoured to mislead some organs of the Press into the belief that this was the only country where legislative sanction had been given to the granting of holidays to industrial workers. I expect the Minister has had time to consult his officials on that matter, and if he has, I think they can produce a list of countries with a catalogue of legislation, showing that many of them have long since adopted legislation providing for the granting of holidays to industrial workers. Indeed, some of these countries did not limit the granting of holidays solely to industrial workers, and in many of them the holidays are longer than those provided in this Bill. We are now providing six days' holidays with pay for industrial workers. While there may be some employers—and I think they are in the minority—who regard this as an unjust imposition upon industry, most industrial employers and social workers recognise that a piece of legislation of this kind is calculated to give us a better industrial system and physically better workers; and is not calculated in any way to impede the legitimate progress of industrial development here.
Assuming that there was no credit side to the account, the cost of a reform of this kind will not entail more than about 2 per cent. of a charge upon industry. That percentage is indeed a small one to pay for the social and economic value of granting holidays to workers. We know that workers who get recreation from the long weary industrial grind are not only better workers, but that there is also a substantial return to the nation, in the way of improved health,  and the avoidance of the necessity of spending money on public health services, which are rendered necessary by the long dreary fatiguing industrial work, unrelieved by any recreation, to which so many workers are condemned to-day. On the Second Stage the Minister indicated that he was favourable to the idea of increasing holidays from six days to some higher number. I noticed that at a function which he attended in the city he indicated that the six days provided in the Bill was the minimum, and he hoped that that minimum would be substantially increased in practice. The Minister should during the passage of the Bill through the Seanad take power to prescribe by statute increased holidays for industrial workers, so that it will not be necessary at some future date to come back to this House to secure alterations in the Bill, in order to secure something more than is now provided for. If the Minister does that, he will have made a contribution to the physical well-being of the workers, and the proper development of industry here, which I feel will react beneficially not merely upon the country, and not merely upon the physical well-being of the workers, but upon the healthy growth of our industries.
Another matter to which I want to refer is the question of a reduction in working hours. Judging by a speech made by the Minister outside the House, he has committed himself to a belief in reducing working hours, not merely that workers might share in the benefits which have been made possible by mechanical and scientific progress, but in order that a reform of that kind might make its own contribution to the relief of the unemployment problem. During the discussion of the Bill in this House the Minister indicated his sympathy with the idea of a reduction in working hours for the purpose of making some contribution to the relief of the unemployment problem and also making available greater leisure for the workers. I am sorry the Minister has not seen fit during the passage of the Bill to provide for a maximum working week of something substantially less than 48 hours.  It is a far cry back to 1919, but the Washington Hours Convention of that year visualised as from that date the establishment of a maximum working week of 48 hours. The world has learned much since then. Even the artificial security of that year has been replaced by plenitude that has amazed even the most optimistic who saw in increased mechanisation and increased scientific discovery the ultimate possibility of a plentiful supply of the necessities of life amongst the communities of the world. We are now enacting legislation providing for a maximum working week of 48 hours, a reform which was first envisaged in 1919. This Bill, far from outstepping the Washington Hours Convention of that year, is merely repeating in 1935 a reform that was regarded as practicable sixteen years ago. The Minister was pressed at various stages to provide for a reduced working week, to establish a working week substantially less than 48 hours, but he resisted all amendments designed to achieve that objective while at the same time he indicated a certain sympathy with any movement designed to bring about a reduction in working hours.
The Minister and his officers must be aware of the fact that there is a worldwide movement towards a reduction in working hours, not merely because it is now realised that mechanical and scientific progress has made it possible for a reduction in working hours to make a practical contribution towards the relief of unemployment, but that in addition the same mechanical and scientific progress has made it possible to share amongst the workers benefits in the form of increased leisure which have flown from that progress. Here, however, we seem not fully to realise the possibilities which scientific and mechanical progress has made possible for our own people. Many other countries in Europe have, by legislation and by executive acts, adopted working hours substantially less than 48 in the week. Many countries, notably the Scandinavian countries, have insisted by legislation on fixing a working week in industry much less than 48 hours. The Minister,  who boasted on the Second Stage and on the Committee Stage of the Bill that it was a pioneering measure, has apparently been able to retain sufficient conservatism to insist that the most this House will do is to fix a maximum working week which was first regarded as practicable in 1919 by the various nations represented at Washington.
I believe that a reduction in working hours—and I have said so repeatedly in this House—will make a substantial contribution towards the relief of unemployment. If the Minister does not believe that that remedy will make that contribution towards the relief of unemployment, then we are entitled to have from the Minister his idea of what remedies must be brought to bear on the problem of unemployment if the country is to be relieved of the serious evils which are flowing from that problem. It may be, of course, that when the Bill passes, by means of conferences with trade unions on the one hand and employers on the other, the Minister may use his influence to secure the introduction of a working week of less than 48 hours. Any movement by the Minister in that direction will have the wholehearted support of the trade union movement. Might I suggest to the Minister that when he is going into conferences of that kind, he ought to go in with clean hands and in the knowledge that he is entitled to hold his head high? The Minister will not be able to go into them holding his head high or with very clean hands while the State itself is employing workers for 48 hours per week and in some cases for substantially more than 48 hours. One of the first acts which should follow the enactment of a Bill is that the State should set its own house in order. I hope it will not be long before the Minister for Industry and Commerce reminds his colleague, the Minister for Posts and Telegraphs, that he at all events should conform, in respect to the working hours of his employees, with the conditions which this Bill is going to impose on private employers. The Minister for Posts and Telegraphs has had a claim for two years for the reduction of the working hours of certain of his employees.
Mr. Norton: I do not want to have it out with the Minister for Posts and Telegraphs. I rest content, Sir, in the belief that with the passage of this Bill the Minister for Posts and Telegraphs will see fit to comply with some of the conditions that are imposed on private employers under this Bill. In any case when the Minister for Industry and Commerce is discussing with employers the reduction of the 48-hour week for industrial workers, they should not be able to point behind his back to the Minister for Posts and Telegraphs and say, “There is the Minister for Posts who employs men for 48 hours a week and longer.” In this country at all events we have a unique situation which entitles us to expect that the benefits made possible by restricting the home market to private industrialists and by mechanised and scientific progress, should be shared by the workers.
The imposition of tariffs has resulted in the whole of the home market being conserved for private industrialists, and I suggest, in return for granting them that concession, it is not unreasonable that the Minister for Industry and Commerce should require private industrialists to conform to reasonable standards of industrial employment. It is not unreasonable for him to expect private employers to make their contribution to the relief of unemployment by consenting to a substantial reduction in the working week, not merely to retain their existing employees in industry, but in order that additional workers might be absorbed by the reduction of the working hours of those who are already in employment. Not merely is the Minister entitled to expect that private industrialists will do that, but also that every corporation and every local authority in the country should be required to give a headline to private industrialists. I hope the Minister will not lose much time in bringing home to public authorities and to corporations such as the E.S.B. and the Sugar  Company, the desirability of conforming with the intentions of the Legislature as set out in this Bill.
As I said, I believe a reduction in working hours is not merely possible because of the progress which has been made mechanically and scientifically, but such reduction is imperative if we are going to retain in industry even those who are at present employed to-day. The introduction of machinery during the past ten years has resulted in the disemployment of many workers. The introduction of the same machinery has resulted in the substitution of male adult workers by underpaid women and by youths. If that tendency is not going to have a ruinous effect on the livelihood of workers, it is imperative that, complementary to the introduction of machinery into industry, there must be an evergrowing demand by the Minister and by the Legislature for the reduction of working hours in order to make good the casualties in industry which are imposed by the introduction of mechanised methods. If this House and the Minister are to take the viewpoint that machinery is to be introduced into industry subject to no control, then we can all visualise that in a short time the livelihood of many workers engaged in industry to-day will not merely be sacrificed, but that we can look forward to an unemployment problem even of greater magnitude than we know to-day.
I hope, therefore, the Minister will make it part of his philosophy, and part of the policy of the Executive Council, to ensure that, side by side with the growth of mechanisation and scientific effort in industry, employers will be required, either by executive action on the part of the Minister or by legislation, to make their contribution to the relief of unemployment by gradually reducing the hours worked in industry and in that way making it possible for all who are available for work to make their contribution towards providing the nation with its human and physical needs. If the Minister would adopt that line, I believe that he would in the course of time make a greater contribution towards the relief of unemployment than many of the illusory panaceas  that are being tried to-day. I hope, if he is not prepared to do it by means of an amendment of this Bill in the Seanad, the Minister will at all events prepare private industrialists in this country for a drastic reduction in the working hours as the contribution which the State expects them to make towards the relief of unemployment, and which the State is especially expecting them to make now that they have been substantially protected in their own markets, and after the State on its part has made substantial sacrifices in order to rehabilitate these industries and retain them in existence.
Mr. Dillon: This Bill should not leave this House without some comment being made not only on what it does, but on the many things it fails to do. When we talk of improving the working conditions in this country, it is well for this House to bear in mind that the application of this Bill is to an infinitesimal minority of the working classes of this country. While we are providing minimum standard conditions for industrial workers, we are doing it in the knowledge that the vast body of the workers, the agricultural labourers, are working ten and 12 hours per day, for 18/-, 19/- and 20/- per week.
An Ceann Comhairle: On the Second Stage of a Bill Deputies may advocate the inclusion of matters which do not appear in the Bill. Technically, on the Fifth Stage of a Bill debate is confined to the contents of the Bill, to arguments as to why it should or should not pass. Assuredly, the question of the wages of agricultural labourers does not arise on the Conditions of Employment Bill.
Mr. MacDermot: On a point of order. I listened for a quarter of an hour with some surprise to Deputy Norton complaining because of things that were not in the Bill which he thought should have been in it.
An Ceann Comhairle: As regards the indirect commentary on the action of the Chair made by Deputy MacDermot, I wish to point out that there is in the Bill a provision imposing a certain limitation of working hours. Deputy Norton did, however, expand that idea unduly, in my opinion.
Mr. Dillon: It is true to say, I think, that part of the cost of this measure has to be borne by those sections of the community who will consume the products of the industrial workers of this country. To improve their conditions is something to which all sides of the House have lent a hand, but it is wrong, in my opinion, that a Bill of this character should leave this House without Deputies realising that in improving their conditions, as we all determined it was right to do, we have laid the burden of the expense on the shoulders of the community.
I conceive myself to be entitled to say that a very large part of that community are agricultural workers. Is there not justice in the representation that if we are to improve the conditions of workers in industry we ought also to consider the condition of the persons at whose expense we are going to improve those conditions? Is it fair or equitable that we should improve the conditions of the industrial worker and stop at that, when the people who have to pay for these improvements are those labouring for ten and 12 hours per day for 18/-, 19/- and 20/- per week? Surely some consideration should be given to the source from which the money to finance these reforms is to come?
An Ceann Comhairle: The Deputy will appreciate the fact that his present argument would apply equally to any measure passing through this House. The cost of legislation falls on every class of the community to a greater or less extent. A brief consideration will make the Deputy realise that he is not entitled so to discuss the financial condition of every  class that might be asked to bear a share of the expense.
Mr. Dillon: He went on to say that it existed in the mind of every intelligent man in the House. It occurred to me, in these circumstances, that it was permissible to point out that a great many of those who will contribute to the improvement of the conditions under which a section of the community are working are themselves far worse off. But I recognise that you, Sir, are obliged to keep the discussion within certain restricted lines in accordance with the Standing Orders of the House, and I will take another occasion, when the discussion, perhaps, is on wider lines, to refer to the condition of persons upon whose backs the expense of this legislation is going to fall.
Mr. MacDermot: I am tempted to intervene for a moment by the speech of Deputy Norton. I am a warm supporter of this Bill and have been from the beginning. I think the Minister is to be congratulated on the skill and energy with which he has piloted it through the House. I supported the Labour Party amendment for increasing the number of holidays provided for by this Bill, and also, on general principles, I am strongly in favour of reducing the number of working hours in the week further than the hours provided for in this Bill. But I think it is legitimate, in view of Deputy Norton's speech, to say that the possibility of doing these things depends upon maintaining and improving the purchasing power of the community as a whole, and that it is not irrelevant to point out that the welfare of the agricultural community must be the condition of further social advances on the lines  Deputy Norton and I would like to see come about.
Mr. Lemass: This Bill was introduced in the Dáil last April, and it has had a very long passage. It has been discussed at considerable length and in great detail in all its stages. I think I can agree with Deputy Norton in saying that it has been improved by that discussion. As tributes are being paid, I want to participate in the paying of them by congratulating, in particular, the members of the Labour Party and the members of the Opposition Party, particularly Deputies Beckett, Dockrell and Good, who have taken a very careful interest in the Bill and who have contributed largely to the amendment of it.
Deputy Fitzgerald-Kenney raised a question in relation to Section 44. I do not know that that point of his has much substance in it. In order to appear to give it substance, he had necessarily to imagine a rather unusual type of case in which the regular employer of a workman was his second employer in the day. The Deputy is no doubt aware that the practices against which the section is directed take a different form. The section is designed to prevent workers in regular employment seeking occasional employment in the same class of work after their normal working day has ended——
Mr. Lemass: ——to the detriment of their colleagues and of employers in the industry. Such employers, in these circumstances, can ascertain without difficulty whether the worker has been employed. All these workers are required to insure under the Unemployment Insurance Act, and any person who employs them is under an obligation to place an insurance stamp on the book in respect of such employment. In any event, the general practice of employing workers in such wise is to be discouraged. It is detrimental to the interests of the regular employers and to the interests of the workers, and it was by agreement from all sides of the House that this section was included in the Bill. Now, even in the circumstances to which the Deputy referred, it is clear that we must put  some obligation upon the employer of the worker to ensure that the provisions of the Act are being carried out. The insertion in the section of the word “knowingly,” which the Deputy suggested, puts upon the person who is instituting proceedings against that employer a very different obligation.
Mr. Lemass: I am sure the Deputy will understand that one cannot regard offences against this Act in the same light as one would regard offences against the common law. In many sections of this Bill, as well as in many sections of other enactments, we are prohibiting, in the interests of social order, certain things being done, the doing of which are not in themselves offensive except in certain circumstances; and the prohibition contained therein is designed to bring it to the minds of all persons interested in such matters that these things are undesirable and that there is an obligation on employers as well as on workers to ensure that they are discouraged. In any event, the powers under which we can proceed against employers, in such circumstances, are such as will enable a certain discretion to be used. As I explained yesterday, in a great majority of cases proceedings will not be instituted except at the suit of the Minister, and he is not obliged to institute proceedings.
Mr. Lemass: Yes, and if informations are brought to the Guards they must proceed; but the laying of an information of this kind is not likely to be done, and, in fact, in practice, it will be the Minister who will have the obligation of taking proceedings.
Mr. Lemass: Because I think it is not desirable that it should be done. I think the point is covered by making  it an offence for the worker to work excessive hours under these circumstances and for an employer to employ a worker under these circumstances. It is shown clearly that it is undesirable. I do not think that Deputy Norton's remarks call for any special comment from me at this stage. I do not say that this is the only country in respect of which some type of legislation dealing with holidays for workers exists, but I think we can justly claim that this Bill puts this country in the forefront of those countries which have legislated for improved conditions in industry, and I do not think that that fact can be contradicted by reference to publications from any source. Neither do I think that Deputy Norton quoted me correctly when he said that I had expressed the opinion that, by a reduction in working hours, a solution of the problem of unemployment could be found. I do not think that a solution of that problem could be found in the reduction of hours alone. I think that any examination of the effects of a general reduction of working hours in industry will show that, as a solution of unemployment, it is not likely to be very effective. I agree that the workers are entitled to share in the benefits of industrial progress and increased output due to new technical processes, and that, where the output is increased by new technical processes, the workers engaged in such industry are entitled to share in that by increased leisure. I think that some amelioration of unemployment conditions may be secured by reduction of working hours, but unless coupled with other measures, which it is not necessary to discuss now, it is my opinion that a reduction of working hours alone will not alter substantially the conditions of unemployment, and I think that that has been the experience in the United States of America, where a substantial reduction of working hours has been attempted.
I am sorry that the flower of Deputy Dillon's oratory has been nipped in the bud. Evidently, he hopes to have another opportunity, and I am sure he will enjoy it.  Deputy MacDermot, of course, was quite right in saying that the standard of our social legislation must depend on the general level of prosperity in this country, but I am quite certain that the present level of prosperity here can bear this particular piece of legislation and that when, as we anticipate, the degree of prosperity enjoyed here increases and the standards of living of all classes of people continue to improve as they have been improving, we will be able to move forward from the position which this Bill takes up to a more advanced position. But it is not seriously contended by anybody, I am sure, that the wealth which this country possesses—the wealth which it is enjoying, such as it is—is not capable of supporting the standard of living for industrial workers which this Bill lays down. Everybody knows that it is, and unprejudiced people know that the position has improved.
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