Redundancy Payments Bill, 1979: Committee and Final Stages.

Wednesday, 14 March 1979

Seanad Eireann Debate
Vol. 91 No. 7

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An Leas-Chathaoirleach:  Before we take up consideration of Committee Stage of this Bill, it would be as well if I indicated that there are six amendments—amendment Nos. 1, 4, 26, 28, 39 and 40—standing in the name of Senator Harte which are out of order as they are not relevant to the provisions of the Bill as read a Second Time. The Senator has been notified accordingly.

Amendment No. 1 not moved.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I move amendment No. 2:

In page 2, between lines 12 and 13, to insert:

“‘place’ in Part II of the Principal Act includes the actual place, location or site where the employee is employed (or normally commences work) unless otherwise specified in a written contract of employment if, but only if, a change in the place of employment [630] would be significantly to the disadvantage of the employee.”

In this amendment we are concerned about the place of employment. Section 7 of the Redundancy Payments Act, 1976, creates unreasonable hardship. It creates great difficulties for people in the building trade, building workers in particular. As I explained on Second Stage, building workers are invited to apply for a job on a site and thereafter the employer tends to treat every site and every location in the State as being the actual place of employment. This imposes a hardship on building workers. There was a problem in the High Court decision because nobody could interpret the meaning of it.

Minister for Labour (Mr. G. Fitzgerald): Information on Eugene Fitzgerald  Zoom on Eugene Fitzgerald  The effect of the amendment as proposed by Senator Harte could be that a redundancy situation could be created where there was no real redundancy at all. Some employments, because of their nature, involve movement from one location to another and, of course, if we were to discourage such movement it could have very serious consequences for the employments concerned. It could, in turn, affect the country's capacity economically. Mobility is essential in many employments. For example, the building industry is one, as has been mentioned by Senators. There are the ESB, engineering firms, and so on, who would, of necessity, have to move from location to location at given times. The effect of the amendment, I fear, would be to hinder such mobility in the cases where it is now specifically an accepted condition of employment. Briefly that is the position.

I should like to quote from a lecture given by Mr. Gleeson, who was a long-serving chairman of the tribunal. Referring to a redundancy situation being created when the employer has ceased or intends to cease to carry on the business in the place where the employee was so employed he said that the literal application of these words is properly applied only where the employee had a fixed place of employment and does not apply where the nature of the employment is essentially itinerant; for instance, a dai' [631] domestic servant who is employed specifically to work in a private house in Ballsbridge, a gardener employed to work in a nursery in Cabinteely, or a farm labourer employed on a farm in Rush does not expect to be moved to Cork. I would also be afraid that in the situation as envisaged by the Senator, many difficulties could be created and that, in effect, a person could become redundant with the same company or the same firm on many occasions during the course of the same employment in the normal way. These are the dangers I see in the amendment.

I do not think it is correct to say many difficulties have been experienced by the tribunal. Senator Harte mentioned that there had been a case before the High Court. It is true that the interpretation of “place” came before the High Court in 1974 on an appeal from a decision of the Appeals Tribunal by a number of building workers who had appealed unsuccessfully to the tribunal for redundancy. That appeal was decided by the High Court on technical grounds not related to the definition of “place”. The High Court indicated that it would favour a wider interpretation of “place” than the four walls of a building site. While the case was not decided on the meaning of “place”, opinions expressed in the judgement are considered to have provided guidelines for the tribunal in deciding that issue. It is felt that the question of interpretation should continue to be left in the tribunal's hands in the light of these guidelines and I certainly would recommend that course to the Seanad.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I listened to the Minister's explanation and I can see the logic of the latter part of the argument.

Amendment, by leave, withdrawn.

Section I agreed to.

An Leas-Chathaoirleach:  Amendments Nos. 3, 31, 32 and 33 are cognate and should be debated together.

[632]Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I move amendment No.3:

In page 2, before section 2, to insert the following new section:

“2.—The ‘requisite period’ of continuous employment specified in the Principal Act is hereby amended by the substitution of ‘78 weeks’ for ‘104 weeks’ in sections 7 (5), 17 (1) and 17 (2) of that Act.”

The Minister has an obligation to relate the scope of the Redundancy Payments Act to the current customs and practices in employment to ensure that workers are not deprived of the generality of benefits. The period known as the requisite period, that is, the two-year qualifying period, prevents many people from getting the benefits of the Act. In this case, it not only applies to building workers but also to workers in other occupations, such as contract work, task work and so on, to be completed at a given time. This work is often finished within the two-year period. By and large many of them finish around the 78th week, or within a year-and-a-half. People in those circumstances are caught in an awkward situation and they do not get the benefits. This is why we put down this amendment.

I take the Minister's point about the nature of the work. This is different. This is a question of the actual length of time spent working with the same employer on a continuous basis. We are dealing with the qualifying period. What we are really looking for is a reduction in the 104 weeks to 78 weeks. This would be more appropriate and it would take in many of these people. The number of workers who would benefit would be fairly substantial if the Minister agreed to the amendment. If not, I should like to hear if he would be prepared to review it in a year.

Mr. Markey: Information on Bernard Markey  Zoom on Bernard Markey  I support this amendment. It was pointed out adequately in the Second Stage debate that the experience has been that quite a number of people are excluded from the benefits of the redundancy payments scheme for a number of reasons. One is their length of service. Unfortunately there are casual jobs, intermittent jobs, in which people [633] cannot have the requisite two years' service. One of the great defects of the redundancy payments scheme since its implementation ten or 12 years ago, has been that individual cases suffer most. A person who has worked in casual employment all his life is likely to be laid off more regularly than other people. Due to the nature of his work, casual, seasonal or intermittent work, he can rarely qualify for redundancy payments, either for the lump sum or the weekly payments. This amendment is well worth looking at and I should like to hear the Minister's observations on it.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  The aim of the amendment proposed by Senator Harte is to reduce the qualification period from two years to one-and-a-half years. In the Dáil debate we had an amendment proposing to reduce it to 52 weeks. The difference between two years and one-and-a-half years is not great, but I should point out a number of things. First, it is felt generally that two years is a reasonable period for qualification. We are always inclined to compare our legislation with that of the UK. The qualification period is two years in the UK, with one very basic difference from ours. In the UK the two years must be reckonable service. Here it is much more liberal. In addition to being reckonable service in the UK it commences only from the age of 18 years. Our Acts are much more liberal because we are talking about two years' continuous service and such service counts from the age of 16 years. In theory, an employee with only a few days' reckonable service could qualify for a lump sum here. Even though he was sick or laid off, the continuity of his service is not affected.

In the UK the situation is much more rigid and much stricter. It is two years' reckonable service. When this Act was originally introduced in 1967, the period was four years. It is half that now. I am satisfied that two years is a reasonable period and I would ask the Seanad to accept that.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  Would it be possible for the Minister to look at it again in 12 months' time? The situation may change.

[634]Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  The Senator is asking me to review the Bill. Later we will be talking about commitments I have given to do something in a year's time. I am sure I could undertake to review this amendment.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  In view of what the Minister intends to do later, I will not press this amendment or amendments Nos. 31, 32 and 33.

Amendment, by leave, withdrawn.

Amendment No. 4 not moved.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I move amendment No. 5:

In page 2, before section 2, to insert the following new section:

“2.—The following paragraph is hereby inserted in section 7 (2) of the Principal Act (as amended by the Act of 1971):

‘(d) the fact that the employer has decided that the work for which the employee has been employed (or had been doing before his dismissal) shall henceforth be done by a person who has a degree of capability, competence or qualifications (specified by the employer) which the dismissed employee did not have’.”

Here we are talking about the scope of the Bill and the legal profession. When a Bill is enacted many legal advisers try to exploit its weaknesses and public authorities exploit them also. As I said on Second Stage the Department of Education punched a hole in section 7 of the 1967 Act by making a teacher redundant in such a way that he did not qualify for or was deprived of compensation. As people who represent workers, we have to guard against managements who decide to make a class of worker redundant. We must have something written into the Bill to ensure that those workers will be compensated.

I explained what happend in the Limerick Health Authority in 1969 [635] when they were dealing with midwives. They changed the name of the grade and they changed the degree of the qualifications of one worker. The Department recognised the implications of that decision and section 4 of the 1971 Act was made retrospective, and that is fair play by the Department. However, the abuses are there and even in the Department of Education they have managed to make an unqualified teacher redundant without redundancy compensation. He is a worker and I am concerned about the protection of the workers. I should like to know can anything be done about that and I should like this amendment to be accepted.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  This amendment arises from a controversial tribunal decision in a case where an untrained teacher was replaced by a trained teacher. The Act provides that, where it is necessary that work be done in a different manner in which the employee is not sufficiently qualified or trained, a redundancy situation does exist. The tribunal held at that time that, in the case of an untrained teacher being replaced by a trained teacher, a redundancy situation did not exist. I believe the Act is well worded and that it should not be tampered with because of this isolated case. Obviously it was the only case during the period of operation of the tribunal.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  An injury to one is the concern of all.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  On the other hand, I believe in a similar situation the tribunal might decide differently in the future. As it is worded the amendment could also lead to abuses of the scheme by people claiming redundancy because workers were replaced by more capable workers. What is the degree of competence or what is the degree of capability? Acceptance of this amendment, particularly in view of the fact that it relates to a controversial decision, could lead to more abuses. In a future case the tribunal might decide quite differently in similar circumstances. I am convinced this was an isolated case and, [636] having considered it when the case was made to me originally, I felt it did not justify amending the section. Amending the section could lead to more difficulties and problems. We would be legislating for a particular case of the past. Senator Harte will agree it was an isolated experience in the tribunal's decision. In the future if the tribunal were deciding on a case in similar circumstances the decision could be quite different.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I am not so sure about the question of a worker being replaced by a more competent person. The Act is clear on that. If you are replaced by a more competent person, he takes on additional work and you become redundant and legitimately entitled to compensation. That did not happen in this case. I have listened to the Minister's explanation and I should like to test what the House thinks.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  One final comment. Up to now there has been only this one case. If I thought it would create a problem in the future, or if I thought problems would arise because of a continuance of decisions of that nature, I would have it looked into. Since the establishment of the tribunal there has been only this one case and I agree it was a controversial decision.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  That is satisfactory. On that basis I will not press the amendment.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach:  Amendments Nos. 6 and 30 are cognate and may be debated together.

Amendment No. 6 not moved.

Section 2 agreed to.

Section 3 agreed to.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I move amendment No. 7:

In page 3, lines 19 and 20, to delete “paragraph after paragraph 1” and substitute “paragraph in substitution for paragraphs 1 and 2:

1. The amount of the lump sum shall be equivalent to the aggregate of the following——

(a) the product of one-half of the employee's normal weekly remuneration and the number of years of continuous employment, with the employer in whose employment he was on the date of dismissal, or by whom he was employed when he gave notice of intention to claim under section 12; between the date on which the employee attained the age of sixteen years and the date on which he attained the age of twenty-one years, and

(b) the product of the employee's normal weekly remuneration and the number of years of continuous employment, with the employer in whose employment he was on the date of dismissal, or by whom he was employed when he gave notice of intention to claim under section 12, after the employee had attained the age of twenty-one years, and

(c) a sum equivalent to the employee's normal weekly remuneration.' ”

This amendment deals with the proposal to increase the lump sum between the age of 21 and 41 years to a week's pay for every year of service, as is the case in Northern Ireland. We hope the amendment will be accepted. What motivates us is not only the question of Northern Ireland but also the fact that there has been very slow movement on the method of calculating the lump sum. With the exception of this Bill, nothing has really happened except for the extra week's pay granted in the 1971 Act. Although it is young legislation, it is not all that young. There is room at this stage to make this amendment and bring us up to the level of the payments in Northern Ireland between the ages of 21 and 41 years. There is no use in saying people do not negotiate higher payments outside. They do on the side, but that has nothing to do with the lump sum redundancy payment. When firms are insolvent people get into a great deal of trouble. It is all right for people who are involved [638] in good firms or good companies which are well run and are financially sound, but when workers are involved with an insolvent firm they are in a bad position and sometimes they have to fight their case very bitterly. There has to be universal application, even if it were only to satisfy the employee who works for a firm which becomes insolvent. Redundancies are here to stay; they are a feature of life. We will probably have notification of 9,000 or 10,000 redundancies within the next nine or ten months. The workers affected are entitled to the best possible benefits. I submit that it would not be beyond the powers of the Government, or burst the purse strings, to give effect to this amendment and pay that extra week before the ages of 21 and 41.

Mr. Markey: Information on Bernard Markey  Zoom on Bernard Markey  It depends on what we feel the lump sum is for. Under the old scheme it was regarded as compensation for the service and the rights which a person has built up in a job before he became redundant. Some firms are in a position to give an ex gratia payment on top of the lump sum. That is well and good for redundant employees of such well-positioned companies. The redundant people who are not in such a favourable position, however, have to depend on the State lump sum. We find, from the Minister's explanatory memorandum, that the maximum lump sum under the new scheme would be £3,700. It boils down to whether we determine that as being adequate enough compensation for the rights which a person has built up in a job over a long period of years. Due to the fact that ex gratia payments are not obligatory or compulsory in any respect, the State could, perhaps, pay a bigger share in this compensatory factor in redundancy. I would support Senator Harte's amendment in this regard.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  This is the point that I raised earlier with Senator Harte, concerning the commitment at the end of 12 months to examine the method of calculating the lump sums. I believe that we are taking a substantial step forward in doubling the present ceiling from £2,500 to £5,000 from April. That gives [639] us a maximum lump sum between now and 1 April 1980 of £4,086, admittedly reducing to the figure mentioned by Senator Markey for that period. I wanted to check the situation in this regard in Northern Ireland; this was mentioned on Second Stage. At the time I thought I was right in saying that the lump sum there is lower than it is here. I checked it in detail and discovered that, in fact, that is so. The maximum lump sum in Northern Ireland is only £3,300.

As you know, the Redundancy Fund is affected by a number of factors. It is affected by the number of redundancies; the age of the workers concerned; the contributions and how these are meeting the needs. I have given an undertaking, and repeat this undertaking to the Seanad, that I shall re-examine the method of lump sum calculation at the end of a year's experience. It would be wise, at this stage, to try that year's experience and see how the Redundancy Fund operates or covers the problem during that year.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I think the Minister's observations are valid in that direction. I am glad to see that he is prepared to re-examine the means of calculating this. This is the second undertaking we have got; we have it in writing. We shall be looking forward to that.

Amendment, by leave, withdrawn.

Amendment No. 8 not moved.

An Leas-Chathaoirleach:  Amendments Nos. 9 and 10 are related and should be debated together.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I move amendment No. 9:

In page 3, subsection (1), line 22, to delete “£5,000” and substitute “£9,000”.

Amendment No. 10, taken with amendment No. 9 reads:

In page 3, subsection (2) (a), line 26, to delete “£5,000” and substitute “£9,000”.

This is something that the Irish [640] Congress of Trade Unions have been advocating. I do not know if they put that proposal to the Minister but it is something I have heard mentioned at ICTU conferences and in the trade union movement in general. What they are saying is that while you have £5,000 as the earnings, the actual earnings can include overtime payments, Christmas bonuses, holiday bonuses, incentive payments. We have had a problem with this over the years. All wages are assessed for tax. When the differential rent scheme was first introduced, every halfpenny that came into the family was assessed to decide what rent the householder should pay. What we are saying is, if it is good enough to embark on that course of action in other areas, there is no doubt that the actual earnings should be thought of when dealing with the question of compensating somebody for losing his job.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  I believe that I have already gone a substantial step at this stage in increasing the ceiling by 100 per cent from £2,500 to £5,000. If we take, for example, the average industrial earnings at June last, these are about £72 a week approximately, which would amount to about £3,500. The ceiling would appear to me in those circumstances to be adequate and I believe that the £2,500 improvement, a doubling of the existing figure, represents an adequate improvement in the existing legislation. I put that to the House.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  The Minister said he was going to review the question of the method of calculating the lump sum. Would that exclude the possibility of increasing it?

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  It would. The guarantee I am giving is to the method of calculation.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  The guarantee the Minister is giving is to the method of calculation but what I was asking was, could he go further and say that the question of the amount, having regard to developments, could well come within that ambit?

[641]Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  I do not think I can give the same undertaking as I have given in regard to the lump sum. That is a categorical guarantee.

Mr. Markey: Information on Bernard Markey  Zoom on Bernard Markey  The first is a guarantee.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  I would say that obviously I will be looking at it from time to time. I would not be in a position to give the Senator the undertaking that I have given on the method of calculation of the lump sum.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  If I were sitting where the Minister is, I do not think I would give the guarantee.

Amendment, by leave, withdrawn.

Amendment No. 10 not moved.

An Leas-Chathaoirleach:  Amendments Nos. 11 and 12 are related and can be debated together.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I move amendment No. 11:

In page 3, line 36, to delete “paragraph (b)” and substitute “paragraph (b) and (c)”.

In amendment No. 12, we are talking about the special treatment of people below £49 per week. We put it in that way. What we say is:

Notwithstanding paragraph (a) of this subsection an employee who, at the commencement of this section, or at the date of termination of employment, is in receipt of weekly remuneration not exceeding £49 per week (except where, in relation to that employee, the method of calculating the lump sum differs to the advantage of the employee from that in operation on the day before the commencement of this section) shall continue to receive weekly payments as if that paragraph were not enacted.

In effect, we are considering the low paid worker, below £49 per week, because we believe that he will be the sufferer. There have been arguments put forward that this will not be the case. All the evidence [642] we can get indicates that there is and will be a loss to anyone below £49 per week. We feel that there should be some exclusion to ensure that the weekly payments are continued.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  Obviously, from what Senator Harte has said the aim here seems to be that of preserving the weekly payment entitlement for employees earning £49 or less, even where redundancy occurs after the commencement of operation of this Act. One of the basic features of the Act, and one with which there has been general agreement on all sides, is the abolition of weekly payments. The 85 per cent rule operates, irrespective of the level of wage, affecting both low and higher paid workers and tending to affect the lower paid workers more than the higher paid on an aggregation of social welfare payments with redundancy, a lower paid worker is likely to reach 85 per cent of his average net weekly earnings sooner than a higher paid worker reaches £50 through the other limiting factor of weekly payments. Only by removing the 85 per cent rule could workers in the category covered by the Senator's amendment benefit, if weekly payments were to be retained specifically for such employees. In view, however, of the disincentive to seek new employment which could result, this course could not be pursued. This is why the 85 per cent rule was introduced in the first place. Essentially, what this means is that the abolition of weekly payments will not, in the vast majority of cases, mean a worsening of the position of workers in the lower paid category. The abolition of weekly redundancy payments will, in fact, be compensated for by improved social welfare benefits, which is why we are abolishing weekly payments in general. Could I bring the Senator back to a point which he made last week on Second Stage about when there were such very small weekly payments. Five pence and 10p were the figures mentioned at that time. I would say the number of workers in the category mentioned, if any, is likely to be very small. As I said earlier, the average industrial earnings at June last year were £72.48. I would say to the Senator that the abolition [643] of weekly payments was accepted on all sides.

Amendment, by leave, withdrawn.

Amendment No. 12 not moved.

Section 4 agreed to.

Section 5 agreed to.

Mr. Markey: Information on Bernard Markey  Zoom on Bernard Markey  I move amendment No. 13:

In page 4, line 4, to delete “60” and substitute “70”.

It is important for the proper operation of the redundancy payments scheme that there be goodwill and decent behaviour on the part of the employer. Under the existing scheme this was acknowledged by the graded scheme of incentives in the rebate percentage. In the new Bill the Minister has reduced the maximum rebate percentage from 70 per cent to 60 per cent. I acknowledge decent behaviour on the part of the employees in giving the longest possible notice of redundancy to employees we should retain the maximum percentage, namely, the 70 per cent. The Minister has said that past experience has been that 60 per cent turned out to be the average percentage rebate. Notwithstanding this, I feel it is important that we should have the benefit of the maximum notice possible in the circumstances and should encourage employers to give this. I move the amendment that we retain the existing percentage rebate figure of 70 per cent.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  Senator Markey raised this point of increasing the level of rebate from 60 per cent to 70 per cent on Second Stage. Under the present schemes, rebates vary, with notice, from 55 per cent to 70 per cent and experience has been that 60 per cent is just below the average rebate paid out to employers at present. In the UK and Northern Ireland the rebate is set at 41 per cent. An important feature of the [644] rebate level is that, by placing a significant cost on the employer, it helps to ensure that the scheme is not abused by collusive redundancies. It is generally felt, therefore, that 60 per cent is a reasonable rebate level and I would ask the Senator to accept that.

Mr. Markey: Information on Bernard Markey  Zoom on Bernard Markey  Did I catch the Minister correctly when he said that 60 per cent was just below the average?

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  Just below the average.

Mr. Markey: Information on Bernard Markey  Zoom on Bernard Markey  That is more an argument that it should be 70 per cent rather than 60 per cent. Obviously, there are quite a number of applicable cases over the 60 per cent and I feel that it would help the operation of the scheme. The purpose of this scheme is to get people back to alternative employment as quickly as possible. Anything that would help should be done and I think this higher percentage rebate to employers would help in that respect.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  I think you should take into consideration the two points I made to you. The first point is the 41 per cent level in the UK and Northern Ireland; the second is that, while it is slightly below the average, it certainly is the nearest point to it.

Mr. Markey: Information on Bernard Markey  Zoom on Bernard Markey  A rounded-off figure.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  It is important that we do not have such high rebates as to encourage these collusive redundancies. I would ask the Senator to accept this 60 per cent as being a reasonable enough rebate in the circumstances.

Mr. Markey: Information on Bernard Markey  Zoom on Bernard Markey  The point as regards possible collusion in the job never entered my mind. I do not think we should pay too much attention to what happens in the UK labour market situation; they have completely different circumstances, which I am sure we already know, as regards redundancies and people being able to pick up alternative employment. I feel that the 70 per cent would have been an incentive to employers. If the Minister feels that it [645] cannot be done, I will not push it any further.

Mr. Butler: Information on Pierce Butler  Zoom on Pierce Butler  The Minister says with the 70 per cent rebate there might be some cause for collusion. Has he proof that there has been collusion previous to this?

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  I would say to the Senator that we are always worried that such could be the case in some circumstances. I have no information that it is widespread, but, on the other hand, the higher the rebate, the more danger there is. The other points I made to you, that the 60 per cent is just below the average rebate at present, seems to me to be more appropriate in the circumstances and it is accepted as reasonable also in the discussions that have been held.

Mr. Butler: Information on Pierce Butler  Zoom on Pierce Butler  I would agree with the Minister that 60 per cent might be more in line but I am worried that the 70 per cent rebate might have caused collusion, as the Minister said was probable. If it has, was there any investigation into that?

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  No. There has been some evidence of collusion in the existing scheme; naturally we do police it but it has not been widespread. The point I was making, however, is that the higher the rebate, the more danger there would be of that type of collusion. I am working on the basis that the argument, in addition to the other arguments, is in favour of this.

Mr. Butler: Information on Pierce Butler  Zoom on Pierce Butler  I would agree. There is no argument between us but I should like to know what steps have been taken in the past, against collusion.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  It has not been proved conclusively. It is not accepted as a redundancy situation but the higher the rebate, the greater the possible danger.

Mr. Markey: Information on Bernard Markey  Zoom on Bernard Markey  Has the Minister in the light of experience, any figures, as regards the difference in payments involved, between the 60 per cent and the 70 per cent?

[646]Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  Does the Senator mean the numbers of rebates?

Mr. Markey: Information on Bernard Markey  Zoom on Bernard Markey  If, in the light of experience, the Minister has any information on money values? How much money is involved overall, in the difference between 60 per cent and 70 per cent?

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  I do not have that information, but I can say that, taking the average pay-out as being slightly below 60 per cent, and appreciating that the fund is in credit, as I said in my Second Stage speech, I gave the figures and expected revenue to be paid out or to be earned by the fund during the coming year, the first year of its operation. I have not the specific figures available immediately. I have just received the information in respect of Senator Markey's question that the difference would be approximately £1 million between 60 per cent and 70 per cent on our present experience.

Amendment, by leave, withdrawn.

Section 6 agreed to.

Amendment No. 14 not moved.

Mr. Markey: Information on Bernard Markey  Zoom on Bernard Markey  I move amendment No. 15:

In page 4, subsection (2), line 19, to delete “two weeks on the expiration” and substitute “period (being not less than two weeks)”.

One of the best aspects of this new Bill is the two-week periods of notice for redundancy purposes given to employees and their right to obtain paid time off within that two-week period to seek a new position. This is a most welcome innovation; one of the most frustrating aspects, for a person who knows that he is going to be laid off in a couple of weeks' time, is to find himself still working away at his workbench and knowing that he could be perhaps utilising that same time seeking a job or having an interview to obtain alternative employment. In the light of experience, [647] where there has been more than two weeks' notice given by employers and, under the Minimum Notice and Terms of Employment Act, 1973, there can be right to notice of dismissal of up to eight weeks—could we not contemplate a situation where paid time off would be given in that period of notice of four weeks, six weeks or whatever. The time off has to be reasonable. The employee cannot, within that period of notice, come every morning and afternoon of every day seeking time off to attend interviews and so on. Going back to the philosophy behind the redundancy scheme, the idea being to get people back to work as quickly as possible, the more and the earlier the opportunities to have interviews and to seek alternative jobs which are available to an employee threatened with redundancy in those few weeks in which he would be in a position to have interviews, the better. Unfortunately, the experience of the redundancy scheme has been that it is far more difficult psychologically for older employees who are laid off to gear themselves to seeking alternative employment in the short period of notice they might have at their disposal, particularly up to now. It would be particularly beneficial to the employee in this category if he had a little more time in which to attend interviews and seek alternative employment. It would be beneficial generally, and would hasten the rate of re-employment of redundant workers.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I just want to make an observation on that. The wording proposed by Senator Markey is certainly much more positive. It is quite clear, in reading the section, that the employee can get time off during the two weeks but it is not spelled out as well.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  Under section 7, as the Senator says, the employee has a right to time off to look for work or training and that right is confined to the two weeks ending on dismissal date. This equates the period during which the right subsists with the period of statutory redundancy notice. In cases [648] where an employer gives more than two weeks' notice, the right will be confined to the last two weeks of that longer notice.

This amendment provides for a right to reasonable time off during that period of notice, irrespective of this link, but not less than two weeks. This is a new and generally welcomed feature of the redundancy scheme. The inclusion of such a provision was strongly opposed by the employers' side. Two weeks strikes a reasonable balance between the demands of trade unions and the objections of employers. It should be adhered to. The Minister, especially a Minister for Labour, has to try to create a balance between both sides. As the section reads, it is an innovation and, indeed, in this House as everywhere, it was welcomed. I would ask the Senators to accept the section as it is, on the two weeks.

Mr. Markey: Information on Bernard Markey  Zoom on Bernard Markey  Would it be correct to say that the average length of notice given in the past has been something in the region of, say, four or five weeks, rather than two weeks? If that has been the situation, it strengthens my argument that we should consider giving the threatened employee some positive help for that longer period of notice, which has been the average experience.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  The difference between this Bill and the original redundancy Act was that at that time one did not have the Minimum Notice Act which necessitates and sets down specific periods of notice required, depending on the length of service. This, as you may remember, is one of the reasons why this statutory notice for redundancy is now two weeks but, having discussed it with both sides and having listened to the demands on one side and the objections on the other, I have certainly come down with a fair balance, as acceptable as it can be, of that reasonable time off. I believe it is very desirable and useful to the people on whom redundancy notice is served, that during that two-week period, they have reasonable time off. There were objections to it; it was not accepted by all sides but I have come down with a reasonable balance.

[649]Mr. Markey: Information on Bernard Markey  Zoom on Bernard Markey  Notwithstanding the statutory period of notice of dismissal, which is now compulsory on employers, the experience still has been that the average period of notice was in excess of two weeks, notwithstanding the other statutory legislation. If the Minister is not prepared to accede to this point today, would he consider it after one year, on the review of the overall operation of the scheme, and principally, the lump sum payment?

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  The Senator welcomed the innovation of reasonable time off in his Second Stage speech. I can assure him that its acceptance caused some problems; therefore, at this stage, I certainly would not be in a position to undertake it. On the other hand, I think it is a worth-while step forward.

Amendment, by leave, withdrawn.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I move amendment No. 16:

In page 4, after line 39, to insert the following new subsections:

“(6) For the purposes of subsection (5), an employee who has not been given a notice under this section shall be deemed to have been given a notice and shall be deemed to have been allowed such time off as the Tribunal considers reasonable.

(7) The Tribunal, on the application of the employee (where it appears to the Tribunal that the employer is in liquidation or insolvent) may order that any amount (or any part of it) ordered to be paid under subsection (5) shall be paid to the employee from the Redundancy Fund.”

This is the “time off to look for a job” section. We want to ensure that employers do not avoid their obligation. There is no penalty for not giving notice; it is a question for the tribunal. The tribunal can make an award but cannot fall back on anything. There is a problem there and the amendment would solve it. The Minister introduced a welcome improvement in the scope of [650] the Redundancy Act but he did not make any provision to ensure equality treatment for all employees. For example, some of them may have to appeal to the District Court after an award has been made by the tribunal. A worker who gets an award by the tribunal against an insolvent firm must take his chance like others. That is not correct. The amendment seeks to deal with the serious defect in section 7, on the question of qualifying for time off on pay to look for another job. Many employers do not wish to draw attention to the fact that they are running down their workforce or are in any difficulties and because of the way the section is phrased they could get away with not giving notice under the Act. I do not think there is any way the section, as it is framed, can help somebody who is given an award by the tribunal against a firm which is in liquidation. Such a person should be able to fall back on the Redundancy Fund in some way.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  On Second Stage, Senator Harte maintained if an employer did not give notice he could evade obligations under section 7 but I believe this ignores the fact that a dismissed employee has also to be given notice under the Minimum Notice and Terms of Employment Act, 1973, notice which in all cases of redundancy entitlement would equal or exceed two weeks. I do not have to explain to the House why that is so: it is simply because two years means two weeks. It will have to be the 1973 Act. Under the Act with such minimum notice the employee would be entitled to compensation in lieu of notice. Where no notice is given, and where the employee is made redundant on the spot he will not be at a disadvantage and then, of course, he will be totally free to seek work or pursue any claims he may have under the Minimum Notice and Terms of Employment Act, 1973.

Similarly, in the case of an employee accepting payment in lieu of notice he would get his wages and would be completely free to spend all his time looking for work. It is not right to say that there is not a penalty. There is a penalty on the employer because under the rebate [651] system in the new Bill it can mean a difference of 20 per cent in the rate of rebate paid. For example, in a figure of £2,000 it would cost the employer £400 which is a substantial penalty in that situation.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I was speaking of a penalty in the sense of another type of action. I accept the Minister's point that there is a penalty.

Mr. Markey: Information on Bernard Markey  Zoom on Bernard Markey  What the employee can do, the Minister says, is to seek recourse under the Act dealing with minimum notice and terms of employment. If he does not get the two weeks' notice the employee can have recourse under that Act but how does that leave him in regard to the lump sum redundancy and the operation of the redundancy payments scheme?

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  He has access to the fund and to the tribunal.

Mr. Markey: Information on Bernard Markey  Zoom on Bernard Markey  Senator Harte's amendment would bring it more quickly within the scope of the redundancy payment scheme instead of the employee having, first of all, to go by the Act dealing with minimum notice and terms of employment.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  Not necessarily. They could be two separate issues. A person would have access to the Redundancy Fund as it stands at present, which would be his major problem, or to the tribunal, if necessary.

Amendment, by leave, withdrawn.

Section 7 agreed to.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I move amendment No. 17:

In page 4, before section 8, to insert the following new section:

“8.—(1) Without prejudice to the generality of section 9 of the Principal Act, an employee shall be entitled to terminate his contract of employment in circumstances of uncertainty in [652] which it is reasonable for the employee to anticipate dismissal for redundancy (whether or not he has received notice of dismissal or protective notice of dismissal or lay-off) if it is reasonable for the employee to expect that his remaining in the employment would seriously prejudice his prospects of obtaining suitable alternative employment which became available and was unlikely to remain vacant.

(2) Where, in the circumstances specified in this section the employee has received an offer in writing from the employer and on a reference to the Tribunal it appears to the Tribunal, having regard both to the reasons for which the employee seeks, or sought, to leave the employement and those for which the employer requires, or required, him to continue in it, to be just and equitable that the employee should receive the whole or part of a redundancy payment, the Tribunal may determine that there shall be paid to the employee—

(a) the whole of the redundancy payment to which the employee would have been so entitled, or

(b) such part of that redundancy payment as the Tribunal thinks fit.”

This amendment is designed to allow a person to accept a new job without getting himself into any serious trouble. Unless section 7 is backed by this amendment which would enable an employee to accept a new job employers generally, especially Government Departments and public authorities, may seek to defeat the objectives of the section by insisting that the employee who accepts the new job also leaves his employment, so disqualifying himself from redundancy payment. That is not the desirable thing. An important new principle has been promoted by the time off section of the Bill under which employees are to be given time off to look for another job.

That happens in all sorts of circumstances but particularly when a firm are running down the workforce. If a worker [653] finds another job and wishes to accept the firm, under the 1967 Act, are entitled to claim that if he accepts the job which he has discovered he is not entitled to compensation on the grounds that he had voluntarily left his employment. Likewise, if a firm wish to prevent a person looking for a new job they can do so by giving notice under section 7. We want to see this section operating in practice. If a worker discovers another job and the Act has conferred a right on him to look for that job he must be allowed to accept that new job without running the risk of being treated shabbily. The section appears to confer a benefit which is not a benefit at all.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  The amendment as proposed could introduce a number of problems and create a dangerous situation for all of us. I believe it would prove to be a source of difficult disputes adding to the tribunal's workload. It attempts also to deal with contingencies related to such vague terms as “uncertainty”, what the expectation of the employee might be and the likelihood or otherwise of other employment remaining available to him, whether the firm will or will not survive and so on. I could visualise a situation where a rumour would spread about a firm with a workforce of 100 or 200 people and because of that rumour there is employment available in the immediate neighbourhood. Under this amendment, that workforce could be attracted away from a firm about which, perhaps, there were rumours of threatened problems and as a result of that the future viability of that firm could be very severely affected. The firm might well survive provided the workforce remained. That amendment could create problems that do not exist at present under the scheme.

Amendment, by leave, withdrawn.

Section 8 agreed to.

Section 9 agreed to.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I move amendment No. 18:

[654] In page 5, line 43, after “week” to insert:

“(notwithstanding the number of hours specified for the time being in section 4 (2) of this Act)”.

The purpose of this amendment is to prevent employers, especially in the public sector, from asserting that the temporary reduction in working hours does not disqualify an employee under section 4 (2) of the 1967 Act.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  I cannot see that the amendment serves any purpose. An employee put on statutory short-time has the right to apply for redundancy after four weeks of such short-time irrespective of the number of hours, or how reduced they are, involved in that statutory short-time. The statutory short-time must, however, be less than half his normal hours but an employee on statutory short time can claim redundancy at any time, even years later. I do not see the merit of the amendment.

Amendment, by leave, withdrawn.

Section 10 agreed to.

An Cathaoirleach: Information on Séamus Dolan  Zoom on Séamus Dolan  Amendments Nos. 19, 20, 21, 22, 23 are related and may be debated together.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I move amendment No. 19:

In page 5, line 46, after “by” to insert “the substitution of the following subsection for subsection (2A):

“(2A) Where an employee who has been offered suitable employment and has carried out for a period of not more than four weeks the duties of that employment, refuses the offer, the temporary acceptance of that employment shall not solely constitute an unreasonable refusal for the purposes of this section.

and”.

Section 11 does not provide for the problems arising from a change in the place of employment. There is great difficulty [655] in grasping the meaning of the section mainly because of the legislation by reference to the amendment of section 15 (2) (a) which should have been included in the Bill. The trial period of two months in the Act of 1971 has caused considerable trouble and hardship. Section 11 proposes to enable an employee to accept temporarily a change in pay or hours of work for 12 months without entering into a new contract and this we accept as a significant improvement. However, there have been hardship cases under section 11. The alternative job was offered to somebody in England. A person actually worked for 11 months in England and that lost him his right to compensation. The problem is that section 11 does not give any relief when a worker accepts temporary work in another place or even if he accepts any sort of a position on a temporary basis. The section does not give him any relief and we feel that the amendment would cover it. The worker sent from Dublin to Galway or Cork is not covered by the section. It would, however, apply to a Cork worker offered short-term work in Cork or Dublin.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  Amendment No. 19 seeks to incorporate into section 11 of the Act an existing provision, as the Senator said, section 15 (2) (a) of the Schedule to the 1971 Act. As far as I can see its incorporation into section 11 is apparent from amendments Nos. 21, 22 and 23. Regarding amendments No. 21, I do not see the reason for this amendment. The amendment is appended to the provision giving employees on a non-statutory short-time 52 weeks in which to claim redundancy. The amendment does not appear to have a connection with section 4 (2) which lays down the minimum number of normally expected hours of work for qualification purposes. The fact that an employee has temporarily accepted reduced working hours, even below 20, does not affect his right to claim redundancy under section 11.

On amendment No. 22, the intention here seems to be to make the provision about non-statutory short time, that is [656] allowing 52 weeks to claim, retrospective to employees who are on non-statutory short time at the commencement of the Act for more than 52 weeks and who, therefore, could not claim redundancy even under the new Act. Some might possibly have been already on non-statutory short time for more than two years to claim redundancy. I do not believe that the amendment should be accepted.

Amendment No. 23 which deals with the situation where employers and employees may agree to a trial period of any length in respect of an offer of alternative to employment. At present the trial period is four weeks, which is a reasonable time within which employees should know whether the offer of alternative employment is suitable or not. The situation does not appear to demand the amendments as suggested, particularly because of the substantial improvements in the non-statutory short-time where the provision of the period within which he can apply is increased from four weeks to 52.

Paragraphs (2), (3), (4) and (5) are an attempt to expand and amend section 15 (2) of the principal Act. Section 15 (2) deals with written offers of renewal or re-engagement by the employer in cases where there is a change in conditions of the employment contract. The proposed paragraphs would introduce the concept of a compulsory trial period already defined as potentially open ended by agreement specifying in detail the circumstances surrounding a trial period and the particulars in relation to it being given in writing. The main objective in the Bill is to simplify what had become an extremely complicated scheme. This amendment would complicate the position further.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  We may be at crosspurposes here but nevertheless the Minister has got the meaning of my case. The amendment, and the related ones, would not have involved any change. They were not intended to involve any change. The amendment is intended to insert a subsection so that the scope of the amended section may be readily seen and understood. Amendment [657] No. 23 seeks to facilitate the acceptance of employment for a trial period. It is because the absence of procedures in the trial period have resulted in a lot of disputes and problems for the tribunal that the amendment was tabled, to try to clear up the situation. I am satisfied with the Minister's explanation.

Amendment, by leave, withdrawn.

Amendments Nos. 20, 21, 22 and 23 not moved.

Section 11 agreed to.

An Cathaoirleach: Information on Séamus Dolan  Zoom on Séamus Dolan  Amendments Nos. 24 and 25 are related and may be discussed together.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I move amendment No. 24:

In page 6, between lines 17 and 18, to insert the following new paragraph:

“(d) the employee concerned had appealed to the Tribunal subsequent to 1st April, 1975, and the Tribunal had dismissed the appeal prior to the commencement of this section by reason only that sections 10 and 11 were not in operation.”

The purpose of this amendment is to repeat the relief given in similar circumstances under section 8 of the 1971 Act where the employee loses an appeal. I have explained the difficulty of trying to grasp the meaning of section 11. I see them all as inter-related.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  I am sure the Senator is aware that, in response to an amendment tabled by Deputy Ryan in the Dáil on Committee Stage, I introduced on Report Stage an amendment to cover a number of cases for which I had a certain amount of sympathy. It appears that the Senator is going further. As I read amendment No. 24, it concerns decisions given by the tribunal since 1 April 1975 relating to short-time working, both statutory and non-statutory short-time working. If effected this would, in effect, allow cases already decided on on these issues over [658] the last four years to be reheard by the tribunal. That step goes too far. I introduced in the Dáil an amendment to this section which will allow the tribunal to take account of the new provisions contained in sections 10 and 11 in reaching decisions on a number of clearly defined appeal cases brought before 1 January 1979 but not yet decided on because of the uncertain nature of the existing provisions of the Acts.

The Senator is proposing to re-enter cases for hearing which may, in fact, have been decided over four years ago. The Acts already provide that the decisions of the tribunal on any question referred to it are final and conclusive, save that any person dissatisfied with the condition may appeal therefrom to the High Court on a question of law. I believe it would be stretching this Act very far to take account of cases that have been specifically decided on and disposed of. The basic difference between that and the situation in the amendment I referred to was that there were a number of cases where a decision had not been finalised and because of the uncertain nature I had some sympathy with the situation. In fact, I introduced an amendment on Report Stage to cover those. The difference here is that decisions have been taken and, in some cases, over four years ago.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  This amendment was motivated by the case involving Ryan and the Limerick Health Authority. The Department decided to pay compensation in spite of the fact that the case was decided against the employee. I appreciate what the Minister did in the Dáil on Report Stage.

Amendment, by leave, withdrawn.

Amendment No. 25 not moved.

Section 12 agreed to.

Section 13 agreed to.

An Cathaoirleach: Information on Séamus Dolan  Zoom on Séamus Dolan  Amendment No. 26 has been ruled out of order.

Section 14 agreed to.

Sections 15 and 16 agreed to.

An Cathaoirleach: Information on Séamus Dolan  Zoom on Séamus Dolan  Amendments Nos. 27 and 28 are related and may be debated together.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I move amendment No. 27:

In page 7, after line 46, to insert the following new subsection:

“(2) Those provisions of the Principal Act, as amended in the manner stated in the Second Schedule, are hereby substituted for the corresponding provisions of the Redundancy Payments Acts, 1967 to 1979, as at the date of commencement of this section.”

This amendment proposes to effect the consolidation of a number of important provisions of the 1967 Act, namely section 7 which deals with scope; section 16 which deals with disentitlement; section 24 which deals with time limits and rules 4 to 7 of the Third Schedule which deal with continuous employment. We hope the amendment in the way it is framed will help to clarify the situation in those areas and will bring about the necessary consolidation. It is an area where problems can arise for trade union officials and for the tribunal. As I said on Second Stage, one can get leaflets on booklets but that is not very satisfactory or helpful. No matter how much it is explained, there will be difficulties. We hope the amendment will stimulate discussion on whether in its present form it will do the job that it sets out to do.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  Amendment 27 is to introduce a consolidated Second Schedule, set out in amendment 38, which in turn consolidates sections 7, 15 and 24 of the Principal Act as well as part of the Third Schedule. It is our intention to consolidate the Acts, not just individual sections, when this Bill is passed, and to produce a comprehensive guide book. Accepting part of what the Senator says about the importance of consolidation and a guide book, I am convinced that a well prepared guide book is of extreme value to individuals to enable them to interpret and understand clearly what is [660] involved in any legislation, especially legislation affecting workers. On the grounds that general consolidation will be attempted later, it is proposed that these two attempts at consolidation in the sections would not be desirable at the present. Consolidation should not be attempted lightly. Careful preparation and examination is necessary to ensure that the law remains as enacted. This is in no way a criticism of the Senator's amendment but it illustrates my point.

The attempt at consolidation that the Senator has submitted is wrong in that it includes subsection (3) without the amendment carried out in the Schedule to the Bill, at section 15 (3). The only reason I am saying this is that I fully understand how any of us can slip into a situation like this. It indicates what I said, that careful preparation and detailed examination is necessary to ensure that consolidation is properly tackled and, when it is attempted, that it is in respect of the entire legislation. It is something that should not be taken lightly. It is our intention to consolidate the Acts and to issue a guide book.

Amendment, by leave, withdrawn.

Section 17 agreed to.

Section 18 agreed to.

An Cathaoirleach: Information on Séamus Dolan  Zoom on Séamus Dolan  Amendment No. 28 has been ruled out of order.

Section 19 agreed to.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I move amendment No. 29:

In page 7, before section 20, to insert the following new section:

“20.—Section 10 of the Act of 1971 shall have effect as if the following paragraphs were inserted after paragraph (c):

‘(d) The date of commencement of a person's employment shall, unless the contrary is proved, be presumed to be the date given in evidence by the employee.

[661] (e) If it appears to an employee that insufficient compensation was awarded by the Employment Appeals Tribunal by reason of a deficiency in an employer's records, a claim may be made by the employee to the Tribunal for an amending Order within twelve months after the date of the Tribunal's decision, and the Tribunal shall, at its discretion, amend or confirm the decision previously made.’”

This amendment proposes to extend the presumption already enacted for the benefit of employees under section 10 of the 1971 Act. It is to enable the Employment Appeals Tribunal to amend an award if an employee is at a loss due to deficiences in the employer's records. Certain presumptions are made as regards the question of continuity of employment. They are not very satisfactory to the tribunal. They need quite a lot of modification. As I said on Second Stage, some of the evidence is stranger than fiction. That does not help the person who is in trouble. Our officials are regularly engaged in trying to get around this even though the tribunal are very helpful and have solved a lot of problems in this area.

Unfortunately employees do not have verification of the evidence before the tribunal make a decision. That is why the section needs amendment. Disputed parts of service and so on comes into it and the employee is at a great loss which arises out of a deficiency in the employer's records. The amendment would ensure that employers would not be in breach of statutory duties by not giving notice. The employee would be able to make his claim properly to the tribunal, particularly if he had verification of his evidence.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  The aim is, as Senator Harte has said, that in the absence of records the employee's word should be taken as regards the commencement date. First of all, I am not aware that this problem causes any real difficulties. I believe, and it is felt generally, that in cases of this nature, it is best left to the tribunal to decide on [662] the merits of the case. In fact, the amendment as worded could, in some instances, be unfair to employees.

As regards (e), it is felt the decisions of the tribunal must have some degree of finality. Decisions of the tribunal are final and conclusive and should remain so. In any event, in a doubtful case, the hearing may be adjourned for detailed investigation and this is not uncommon. The tribunal have all the necessary powers to examine evidence and records. The number of cases where problems would arise because of the deficiency of employer's records would be insignificant and it would not warrant an amendment of this nature. To be fair to the tribunal and the experience they have, they have gone to great extremes to help in these cases and I am not aware of it having caused many or serious problems.

Amendment, by leave, withdrawn.

Section 20 agreed to.

Section 21 agreed to.

Amendments Nos. 30, 31, 32 and 33 not moved.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I move amendment No. 34:

In page 9, column (2), to add: “The insertion after paragraph 7 of the following:

‘7A. Any period of notice due to an employee under section 4 of the Act of 1973 (and not given by the employer) shall be allowed as reckonable service.’”.

This was accepted in part in the Dáil. It is intended to protect the employee's rights with regard to the eight weeks' notice or pay in lieu of notice, in the 1973 Act. This notice or pay in lieu is not fully secure under the 1973 Act if the employer is insolvent. If this was enacted with the amendment as it stands, a week's pay would be added to the redundancy lump sum to help reduce the loss.

[663]Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  The period of notice due to an employee should be allowed as reckonable service. Is that what we are talking about?

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  Yes.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  As a result of an amendment introduced by Deputy Ryan on Committee Stage in the Dáil, I introduced on Report Stage, an amendment to take care of where I believed the greatest hardship could be created in this situation. In other words, we have implemented 90 per cent of what is in this amendment as a result of the Dáil amendment. This is now incorporated in paragraph 4 (A), column (2) of Schedule 3.

Deputy Ryan's amendment sought to have any period of notice which an employer had failed to give under the Minimal Notice and Terms of Employment Act, 1973, allowed as reckonable service for redundancy purposes. From an examination we made on this, the most serious problems of redundancy entitlement arose where an employee failed to qualify for redundancy payments because he just fell short of the 104 weeks' qualifying period. This is where our sympathy lay. The amendment now included in the Bill takes care of these cases by allowing the employment appeals tribunal to hold that the period of statutory minimum notice not given to such an employee shall be included as continuous service for the purpose of the entitlement. I do not believe there is need for that service to be reckonable for qualification purposes. The factor in the total service period is so minimal that it does not justify this amendment. The hardship was created where somebody did not qualify because he had not the 104 weeks. I am sure that meets 90 per cent of what the Senator wishes. The other 10 per cent, with the time factor being so small, would hardly justify an amendment.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I feel strongly about this but I would not be worth my salt if I quibbled at this stage in view of the fact that the Bill has to be implemented by 6 April. I would ask the Minister—even though he went 90 per cent of the [664] way—if, where the notice was not given by the employer, he might allow the person to qualify for the extra week.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  That would create difficulties. The greatest hardship case could be created where there was a question of qualifying or not qualifying because of those few weeks. The element as regards the total redundancy situation would be minimal in any case. I have gone 90 per cent of the way to meet the situation, and to meet the people most seriously affected by that situation.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I thank the Minister for going 90 per cent of the way but he has not gone an inch of the way with me today. I am a glutton for punishment.

Amendment, by leave, withdrawn.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I move amendment No. 35:

In page 9, column (2), to insert at the appropriate place:

“Paragraph 5 (1) shall have effect as if the words ‘Where an employee's period of service is or was interrupted by any one of the following’ were deleted and as if the following words were substituted:—

‘If an employee is absent from his employment by reason of any of the following’.”

This is a question of harmonising the 1967 Act with Schedule 1 of the 1973 Act. The existing rule in the 1967 Act is seen by many people to be unfair to employees who are absent from their work due to illness, particularly during a business failure. I can see the point they are making.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  We are not aware of any great problems being caused in this regard. As I understand it, the argument behind this amendment is that the word “interruption” is two-sided, so that an employee who leaves because of, for example, sickness or lay-off, must resume work before he can claim redundancy. Should an employee be dismissed within defined periods while out sick or on lay-off, and the firm subsequently [665] closes down before resumption of work by the employee, that employee would have no redundancy entitlement since his continuity of employment is broken at the point of dismissal and he could not, or did not, avail of the provisions of the Act to enable him to negative the dismissal and re-establish his continuity by resuming work before the closure.

The provisions in question enable a man who has been dismissed in certain circumstances to resume work with the same employer and thus preserve continuity notwithstanding the dismissal. It is not clear why the legislation should come to the aid of a man who accepts the dismissal as final and does not take steps to negative it. I am not sure why the Senator wants to do that. If a man does not take steps to negative the dismissal that is sent to him, I am not sure why we should try to protect it here. If the employee feels he was dismissed because of redundancy and has not been paid a lump sum, it is open to him to bring his case to the tribunal. Where the tribunal finds in his favour he will be paid directly from the fund, should his firm be insolvent.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  It is difficult to understand how he would be able to negative it if he is out sick and does not know the firm is closing down.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  I should emphasise that if he is absent but not dismissed, no problem arises.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  The period of illness comes into it.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  Where he is absent but not dismissed. It would only arise if he were dismissed, and if for example, being absent through illness, he did not negative that dismissal or did not contest it. That is the only case which could arise. It would be an extremely unlikely event. If he is absent, he is covered. If he is dismissed because of one of those reasons and gets the dismissal negatived, he will also be covered.

Amendment, by leave, withdrawn.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I move amendment No. 36:

[666] In page 9, column (2), to insert at the appropriate place:—

“The substitution of ‘authorised or approved’ for ‘authorised’.”

This amendment enables an employer to give approval to an absence. At present the absence must be authorised in advance of the event. I have not had any experience of problems in this regard so I will not press the amendment.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  There have not been any problems in this area.

Amendment, by leave, withdrawn.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I move amendment No. 37:

In page 9, column (2), to insert at the appropriate place: “The insertion of the following paragraph after paragraph 12:—

‘12A. If the continuous service of an employee is not broken for the purposes of the Minimum Notice and Conditions of Employment Act, 1973, it shall not be broken for the purposes of this Act.’”

This amendment harmonises the rules on continuous employment in the Acts of 1967 and 1973. It provides that if service is not broken for minimum notice, it is not broken for redundancy payments. There is so much overlapping between the minimum notice, the unfair dismissals and the redundancy measures in the day-to-day dealings of trade union officials that it is necessary to draw attention to the problems in this area. If this amendment is inserted after paragraph 12, it will harmonise the Acts.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  The concept of continuous employment is spelt out in great detail in the Redundancy Acts as against a few lines in the Act dealing with minimum notice. The Redundancy Acts have provisions in relation to continuity far superior to anything in the Minimum Notice and Terms of Employment Act and the necessity for absolute conformity is not accepted. The continuous service aspect in the Redundancy Payments Acts is far more comprehensive and advantageous to beneficiaries than is the Minimum [667] Notice and Terms of Employment Act. I do not think there is any need for this amendment.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  Does the Minister, having regard to the nature of the debate and the amendments that came through both Houses, not feel that the scope of the Act could be broadened or that all the legislation could be drawn under the one umbrella?

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  It would be a big undertaking. I referred earlier to the problem of consolidating the Redundancy Payments Acts but to bring them all together would be a tremendous undertaking. I could not give such an assurance to the Senator.

Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I did not think the Minister could. It presents us with a problem. We might have to bring in a Private Members' Bill to induce a debate to see if we can overcome a lot of our problems. I am not saying that because my amendments were not accepted. I am saying it because it is true.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  The Senator is aware that we have guide books to the various Acts which are reasonably comprehensive and are written in layman's language. We will be doing the same for this Bill and will be working on the consolidation problems.

Mr. Markey: Information on Bernard Markey  Zoom on Bernard Markey  We will probably need a guide book to the guide book.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  No. The Senator will find that if he looks at the guide books of our Department they are very simple and easy to follow.

Amendment, by leave, withdrawn.

Schedule agreed to.

Amendment No. 38 not moved.

An Cathaoirleach: Information on Séamus Dolan  Zoom on Séamus Dolan  Amendment No. 39 has been ruled out of order.

An Cathaoirleach: Information on Séamus Dolan  Zoom on Séamus Dolan  Amendment No. 40 has been ruled out of order.

[668]Mr. Harte: Information on John Jack Harte  Zoom on John Jack Harte  I move amendment No. 41:

In page 2, line 6, after “1973,” to insert:

“and the Functions and Powers of the Employment Appeals Tribunal Generally”.

This amendment proposes to extend the Redundancy Payments Acts, 1967 to 1973, and the functions and powers of the appeals tribunal generally. The amendments I moved here today were necessitated by the problems and functioning of the tribunal and the powers they have. We believe that something must happen in this area. I do not know whether the Minister has been in consultation with the tribunal but our members are concerned about the functions and powers of the employment appeals tribunal and feel there is scope for improvement in this area.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  I am not sure that this amendment is necessary. I have been advised that the Title to the Act is in order. The changes relate to the employment appeals tribunal and are basically the addition of further vice-chair persons or extra members. Those changes are important enough to warrant mention in the title. I would ask the Senator not to proceed with this amendment.

Amendment, by leave, withdrawn.

Title agreed to.

Agreed to take remaining Stages today.

Bill reported without amendment, received for final consideration and passed.

Mr. G. Fitzgerald: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  I thank the Senators for their co-operation and interest in the debate. While the amendments put down by Senators Harte and Markey were not accepted that does not mean that the points made on them will not be looked at with interest by my Department.


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