Wednesday, 10 December 1941
Dáil Éireann Debate
as if the vehicle were a shop and as if the person by whom such retail trade or business is carried on were the proprietor of that shop, and for the purposes of such extension the expression “member of the staff” where it occurs in the Principal Act, shall, notwithstanding anything contained in Section 2 of this Act, be construed, in its application to the vehicle, as meaning a person who travels on the vehicle and is employed (as driver or otherwise) for the purposes of such retail trade or business.
The original Section 3 excluded bread-van drivers, milk roundsmen, and ice-cream vendors retrospectively from the operation of the Principal Act. Since the Bill was drafted, in fact on the morning of the day on which we discussed the Second Reading of the Bill here, the final judgment of the Supreme Court was announced in the case of Martin versus Galbraith, in which a bread-van driver claimed to come under this section of the Principal Act. That judgment has completely altered the position as regards bread-van drivers, milk roundsmen and ice-cream vendors, and also in regard to sales from travelling shops proper. The judgment declared that the definition of a member of the staff required the employee to be working within the shop or in the precincts of the shop, and that in the case of the bread-van driver, Martin, most of his sales were effected at the house doors of his customers and were therefore not effected within the precincts of the van, which  was deemed to be a shop under Section 3 of the Principal Act. The court therefore declared that Martin was not a member of the staff of a shop and was not within the scope of the Principal Act. That decision will apply to similar cases in which retail sales from a vehicle are transacted at a distance therefrom. It is now no longer necessary to exclude bread-van drivers retrospectively from the Principal Act, and the intention of the Principal Act has been restored by the judgment. It it clear, however, that if the travelling shop proper is to be brought within the scope of this legislation, a special definition of “member of the staff” must be laid down for the employees of such travelling shops. The amendment is designed to remedy the position created by the Supreme Court judgment, and to retain travelling shops within the scope of the legislation, while excluding vehicles and their staffs which are used wholly or mainly for the sale of any one or more of the commodities: bread, flour, confectionery, milk and ice-cream.
The amendment deletes the former Section 3 of the Bill. Sub-section (1) deletes references to vehicles from Section 3 of the Principal Act, which will in future deem places from which a retail trade is carried on to be a shop, but will not refer to vehicles. Sub-section (2) extends the Principal Act, excluding Part VI, dealing with the health and comfort of workers, to any vehicle used for the time being wholly or mainly for the purpose of retail trade or business carried on therefrom, if the vehicle moves from place to place for the purpose of such retail trade, and if such retail trade does not consist wholly or mainly of the retail sale of one or more of the commodities: bread, flour confectionery, milk and ice-cream. The amendment excludes from the scope of the Principal Act the van used solely for delivery purposes and the van used mainly for delivery and partly for retail sales. It will exclude the bread-van, the milkman's van and the ice-cream vendor's vehicle, but will bring within its scope the travelling shop proper, unless any of the latter shops  are engaged wholly or mainly in the retail sale of the commodities already mentioned.
Sub-section (2) also contains a revised definition of “member of the staff” in the case of the employees connected with travelling shops. In future, any person who travels on a vehicle as defined in this amendment, or is employed as a driver or otherwise for the purpose of the retail trade carried on, will be a member of the staff of the vehicle and, as such, will be within the scope of this Bill and the Principal Act. In view of the decision of the Supreme Court that bread-van drivers are outside the scope of the Principal Act, it is not necessary to retain sub-section (2) of Section 3 which provided that court proceedings instituted prior to the date of the introduction of the Bill by bread-van drivers would not be affected by the terms of the present Bill. For this reason, it is no longer considered necessary to retain sub-sections (3) and (4) of Section 3 of the Bill, and I do not now propose to claim the power by order to exclude other vehicles carrying on a retail trade from the provisions of the Principal Act.
An Ceann Comhairle: Amendments Nos. 2, 3, 4 and 5 are offered by Deputy O'Neill to Section 3, which will be deleted if this amendment is carried. The Deputy might make his case on amendment No. 1, and, if he thinks he has not been met in the new section, he may offer an amendment on the Report Stage.
Mr. O'Neill: I think all the points raised in my amendments have been met by the Minister, and in any case my amendments now become amendments to a section which is being deleted and, therefore, could not be moved by me. However, as they have all been met, at all events, in substance, I do not propose to move them.
Mr. Lemass: With regard to Section 3, I want to mention that I intend to move on Report Stage an amendment to provide that the provisions of the Principal Act shall be deemed never to have extended to any vehicle from which was carried on the retail trade of selling ice-cream, if and so long as selling ice-cream was the only or main trade carried on from such vehicle, and that Section 3 of the Principal Act shall be deemed always to have had that effect.
4.—The provisions of the Principal Act shall cease to apply in respect of any hotel situate outside the County Borough of Dublin, and accordingly the word “shop”, where it occurs in the Principal Act or in this Act, shall be construed as not including any such hotel.
The original Section 4 of the Bill provided that the provisions of the Principal Act should cease to apply in respect of hotels throughout the country. In view of the representations which were made to me, I agreed to retain within the scope of the Principal Act the hotels in the County Borough of Dublin. This amendment  deletes the original Section 4 of the Bill and provides instead that the Principal Act shall cease to apply in respect of any hotel situate outside the County Borough of Dublin. It was felt that there were considerable grounds for retaining the Principal Act in the County Borough of Dublin, since the majority of the large hotels had, by agreement with the trade union concerned, adopted conditions very comparable to those in the Act, prior to 1938, when the Principal Act was passed, and a number of the difficulties which operate against the application of the Act to country hotels did not apply in Dublin where the possibility of recruiting temporary or additional staff is good.
Mr. Keyes: I consider that there are serious implications in the omission by the Minister of the other county boroughs from this amendment. When he argues that he found that the Act was necessary only in respect of conditions obtaining in hotels in Dublin, I suggest that what this will mean is that hotel employees in the county boroughs outside Dublin will be in a much worse position than that in which they were even prior to the enactment of the Principal Act. I suggest that, in effect, the Minister is putting them back to the position of 1911, prior to the passing of the 1912 Act. Their weekly half-holiday is not now provided for and I suggest that it is not quite good enough to strike them out of the benefits of the Act and, by doing so, to put them in a much worse position than before.
While Dublin is the capital, and, in some circumstances, is entitled to special treatment, I can say that there are hoteliers in the other boroughs, and perhaps outside the boroughs, who are to-day catering for a very influential section of the community and charging the highest prices. They are three-star hotels—first-class hotels— and so far as charges are concerned are comparable with the best in the City of Dublin, and even now, with the  Act in operation, because of laxity on the part of the inspectorate, they are doing things which were perfectly unacceptable from the point of view of any reasonable standards of employment.
I mentioned at an earlier stage the case of a hotel in which an employee was working for 100 hours a week. I think Deputy Hickey and other Deputies quoted cases in their constituencies. I quoted one outstanding case of which I know, and of which I have the details here at the moment, of a hotel carrying on very important business and getting a very considerable revenue, while showing no regard whatever for its employees. If that went on during the period when the Act was supposed to be in operation, by reason of laxity of inspection, what will be the conditions of employees when, by law, they are being brought back to the status occupied by hotel employees in 1911? I suggest that sufficient consideration has not been given by the Minister or his advisers to this matter, in excluding from the scope of this measure and the protection afforded by it the hotel employees in at least the four county boroughs, and I propose to submit an amendment on that point on Report Stage.
Mr. Lemass: I want to say, in reply to Deputy Keyes, that while it is quite true that there are individual hotels throughout the country, in county boroughs and even in isolated country districts, which are in many respects comparable to Dublin hotels in their size and the class of clients they cater for, that that really does not affect the issue that has arisen in connection with the application of the Principal Act to hotel employment. The main advantage which the Dublin hotel-keeper has over the hotel-keeper elsewhere in adhering to the terms of the Principal Act is the existence of a pool of workers from which additional help can be drawn whenever the volume of business requires it and when ordinary employees are prohibited from working under the  terms of the Principal Act. The problem that has arisen in isolated districts in the country is due solely to the fact that additional staffs could not be obtained when required. That is also true, to a considerable extent, in respect of other cities and towns throughout the country. It is only in Dublin that you have a class of worker who is employed in the catering trade, but rarely employed in the same place twice, who is engaged in connection with public functions and other social festivities by hotels and by restaurants as required. The existence of that reserve pool of workers has facilitated the larger Dublin hotels in adhering to the terms of the Principal Act. Because they have that facility, and can adhere to the terms of the Act, even though it may involve them in some additional expense, I have agreed to the representations that were made to me that we should retain Dublin within the scope of the Principal Act. But these considerations do not apply elsewhere. In fact, it is well known that the terms of the Principal Act were found to be almost unenforceable through the rest of the country.
I am satisfied that in many districts of the country the terms of the Act have been departed from. In the view of the inspectors of the Department it became a matter of impossibility almost for hotel proprietors to conform to them.
Whatever subsequent measures may be taken to control employment in the hotel trade, it seems clear, from our experience, that to attempt to put hotel workers on the same basis as shop assistants, and to control them under a Shops (Conditions of Employment) Act, is wrong. It is only because of the fact that in Dublin the conditions established by negotiations between the proprietors and the trade unions are comparable to those established by the Act, that I am agreeable to retain, for the time being, the City of Dublin within the scope of the Act. If, at a later stage, we decide to legislate separately for hotels as distinct from shops then of course that legislation will be made applicable to Dublin, and this Act will be amended so as to  confine it only to shops, which was the original intention. It was in consequence of representations made at the time, and because of my personal desire to do something for hotel workers, if it could be done, that I framed the original Act so as to cover hotels. During the course of the discussions in the Dáil when many difficulties were voiced, and because of the nature of those discussions and of the representations that were made during the period when the Bill was before the Dáil, I came to the conclusion that a mistake had been made in trying to deal with hotels at all in the Principal Act. I think we should now try to rectify the mistake because, obviously, it is not a good thing to have on the Statute Book legislation which we know is not merely inequitable but, in many cases, unenforceable.
Mr. Keyes: The Minister's statement would seem to indicate that it is because of the strong representations that were made to him by strongly organised bodies of workers in the City of Dublin that he proposes to retain Dublin within the scope of the Act, and that it is because equally strong organisations do not exist in the provincial cities and towns and throughout the country generally that he is prepared to abandon the workers in those areas. I do not think that is a good ground for the Minister to go upon in abandoning hotel workers in cities like Cork, Limerick and Waterford. Their position is now going to be not only worse than it was before the 1936 Act was passed, but worse even than it was in 1912. The Minister is not now going to give them any protection whatever. It seems to me that, because the hotel workers in the provinces are not organised, they are now going to be abandoned by the Minister.
Mr. Lemass: The reason why we accepted the recommendations that were made to us in respect of Dublin was because they showed that there were circumstances in Dublin which do not apply elsewhere. It was the existence of those circumstances, rather than the representations, which led to the decision to retain the application of the Principal Act to the hotels in Dublin.
Mr. Keyes: I would like to know from the Minister if, in regard to representations that were made to him, a distinction was drawn by the trade unions as between Dublin and the provincial cities, and if it was that distinction that influenced him to draw the fine line that we see in this Bill.
Mr. Lemass: Anybody attempting to show that there was a distinction between one area and another will base his argument on the circumstances  in the area most likely to support his argument. But it is well known that the circumstances that exist in Dublin do not exist elsewhere, and if we accept these circumstances, and have good reason for treating Dublin in a different manner from other parts of the country, then that same argument does not apply in relation to any other district.
Benson, Ernest E.
Childers, Erskine H.
Dockrell, Henry M.
Gorry, Patrick J.
|Kelly, James P.
Kennedy, Michael J.
Lemass, Seán F.
Little, Patrick J.
Lynch, James B.
McDevitt, Henry A.
O Briain, Donnchadh.
O'Loghlen, Peter J.
Rice, Brigid M.
|Bennett, George C.
Byrne, Alfred (Junior)
Cosgrave, William T.
O'Sullivan, John M.
Pattison, James P.
Redmond, Bridget M.
Tellers:—Tá: Deputies Smith and Brady. Níl:—Deputies Keyes and Corish.
Question declared carried.
Section 4 deleted.
Amendment No. 7 not moved.
Mr. McMenamin: I have two amendments down here—Nos. 8 and 9, and if I got No. 9 I think it would cover the question involved. This is concerned with an hour for meals after the five continuous hours of work in hotels.
An Ceann Comhairle: Does the Deputy not intend to move amendment No. 8?
Mr. McMenamin: Not if I get Amendment No. 9.
Mr. Lemass: I agree to that. If the Deputy would withdraw amendment No. 9 now, I accept it in principle, and will undertake to produce an amendment on the Report Stage which will reflect the Deputy's intentions.
 Amendment No. 8 not moved.
Amendment No. 9, by leave, withdrawn.
Mr. Lemass: I am prepared to say the same in respect of amendments Nos. 10, 11, 12 and 13. That is if the Deputy will withdraw these amendments, I think I shall be able to meet him in relation to them by bringing in amendments on the Report Stage.
Amendments Nos. 10, 11, 12 and 13 not moved.
Mr. Brennan: The Minister is accepting all these amendments in principle?
Mr. Lemass: Yes.
Mr. Brennan: That is very good of him.
Sections 5 and 6, and Title of the Bill, put and agreed to.
Bill reported with amendments.
An Ceann Comhairle: When is it intended to take the Report Stage?
Mr. Lemass: I intended to ask the Dáil to take it to-morrow, but I gather now that we are not likely to meet to-morrow.
Mr. Corish: There is time enough.
An Ceann Comhairle: It might be put down for to-morrow, conditionally.
Mr. Lemass: It is only a matter of departmental convenience. In the case of a Bill of this kind it has to go to the Seanad after passing the Dáil, and it is more convenient for me personally to have such a Bill taken in the Seanad at a time when the Dáil is not meeting. That is why I was anxious to get the Report Stage finished, because the Seanad will meet during the recess. The only suggestion I might make to meet the difficulty is that, if the House would agree to pass the Report Stage now, I will undertake to introduce in the Seanad these amendments which I have accepted in principle. That would mean that they would come back again to the Dáil when the Seanad has passed the Bill. If the Dáil would agree to that proposal, I think it would enable  the measure to be enacted with more speed, and it would be more convenient from the point of view of spreading out the work.
Mr. McMenamin: I agree to that.
Mr. Keyes: We will see the amendments when they come back from the Seanad?
Mr. Lemass: The amendments would have to come back from the Seanad and then be considered here.
Question:—“That the Bill, as amended, be received for final consideration”—put, and agreed to.
Question:—“That the Bill do now pass”—put, and agreed to.
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