Shops (Hours of Trading)(No. 2) Act , 1938

PART I. Preliminary and General.

1 Short title and commencement.

1.—(1) This Act may be cited as the Shops (Hours of Trading) Act, 1938.

(2) This Act shall come into operation on such day as shall be fixed for that purpose by order of the Minister either generally or with reference to any particular Part or provision and different days may be so fixed for different Parts and different provisions of this Act.

2 Definitions and interpretation.

2.—(1) In this Act—

the expression “the Minister” means the Minister for Industry and Commerce;

the expression “excepted business” means any business specified in the Second Schedule to this Act;

the expression “retail trade or business” includes the business of a barber or hairdresser, the business of the lending for reward of books or periodicals, the business of a pawnbroker, the sale of refreshments or intoxicating liquors, and retail sales by auction, but does not include the sale of programmes or catalogues at theatres or other places of amusement;

the expression “wholesale shop” means any premises occupied by a wholesale dealer or merchant where goods are kept for sale wholesale to customers resorting to the premises;

the word “shop” includes—

(a) any premises in which any retail trade or business is carried on, excluding so much (if any) of such premises as is not used for the purpose of such retail trade or business,

(b) any premises in which goods are received direct from customers for the purpose of having the same dyed, cleaned, repaired, altered or laundered, excluding so much (if any) of such premises as is not used for such reception of such goods,

(c) any wholesale shop,

(d) any warehouse occupied—

(i) for the purposes of a retail trade or business, by the person carrying on such retail trade or business, or

(ii) by a wholesale dealer or merchant for the purposes of the business carried on by him in a wholesale shop,

but does not include a railway refreshment-car;

the word “proprietor” when used in relation to a shop means the person who carries on business at that shop.

(2) Where any premises (being a shop) includes a part (in this sub-section referred to as the said part) in which there is carried on any business not carried on elsewhere in such premises, and the said part is, in the opinion of the Minister so constructed as to be capable of being effectively shut off from the rest of such premises, the following provisions shall have effect, that is to say:—

(a) the Minister, on the application of the person carrying on such business, may, if he thinks fit, issue a certificate certifying that the said part is so constructed, and in that case the said part shall, so long as such certificate is in force, be deemed to be a separate shop for the purposes of this Act and so much of the remainder of such premises as does not include any other part in respect of which another certificate under this sub-section has been issued and is in force shall also be deemed to be a separate shop for the said purposes;

(b) if the Minister is at any time satisfied that the said part is no longer in his opinion capable of being so effectively shut off, he may revoke such certificate.

3 Public holidays.

3.—(1) Subject to the provisions of this section, each of the following days shall, for the purposes of this Act, be a public holiday, that is to say:—

(a) Christmas Day when it falls on a weekday or, when it falls on a Sunday, the 27th day of December, and

(b) St. Stephen's Day when it falls on a weekday or, when it falls on a Sunday, the next following Monday, and

(c) St. Patrick's Day when it falls on a weekday or, when it falls on a Sunday, the next following Monday, and

(d) Easter Monday, Whit Monday, and the first Monday in August.

(2) Whenever in any year a day is appointed under the Public Holidays Act, 1924 (No. 56 of 1924), to be a bank holiday instead of a day mentioned in the next preceding sub-section of this section, the day so appointed shall in that year be deemed to be substituted throughout the said sub-section for the day so mentioned and the said sub-section shall be construed and have effect accordingly.

(3) The Minister may, whenever and so often as he thinks fit, by order under this sub-section amend, in respect of any specified area, sub-section (1) of this section in any one or more of the following ways, that is to say:—

(a) by substituting for the day which is a public holiday by virtue of paragraph (b) of the said sub-section (1), the 1st day of January, or the 6th day of January,

(b) by substituting for Easter Monday, Ascension Thursday,

(c) by substituting for Whit Monday, the Feast of Corpus Christi or the 29th day of June,

(d) by substituting for the first Monday in August, the 15th day of August,

and whenever any such order is made in respect of any specified area, then, so long as such order remains in force, sub-section (1) of this section shall have effect in relation to any shops in such area subject to such amendment.

(4) The Minister may by order under this sub-section amend or revoke any order made by him under this section (including this sub-section).

4 Provisions in relation to certain orders.

4.—(1) The following provisions shall have effect, in relation to the making of an order to which this section applies, that is to say:—

(a) before making such order, the Minister shall cause a draft of such order to be prepared and shall cause to be inserted in the Iris Oifigiúil and in such newspapers circulating in the area to which the proposed order is intended to apply as he thinks proper a notice—

(i) stating his intention to make such order,

(ii) setting out the terms of such draft order,

(iii) inviting all interested parties to make to him within a specified time such representations in relation to such draft order as they may think fit;

(b) the Minister shall not in any case make such order until the expiration of the said specified time;

(c) at the expiration of the said specified time, the Minister may, after consideration of any representations made to him within the said specified time, make such order in terms of the said draft, without modification or with such modifications as he thinks proper.

(2) The making of an order to which this section applies shall be prima facie evidence that the provisions of sub-section (1) of this section have been duly complied with.

(3) This section applies to—

(a) every hours of trading order made under Part III of this Act;

(b) every Sunday-trading (exempted area) order made under Part IV of this Act;

(c) every hours of Sunday-trading (exempted businesses) order made under Part IV of this Act;

(d) any order amending or revoking any such order as is mentioned in paragraph (a) or paragraph (b) or paragraph (c) of this sub-section.

5 Public inquiries.

5.—(1) The Minister may, before exercising any power conferred on him by this Act, cause a public inquiry to be held into the matter which is the subject of the exercise of such power and appoint a fit and proper person to hold such inquiry, and every person who, in the opinion of the person appointed to hold any such inquiry, is substantially interested in the subject matter of such inquiry shall be entitled to appear and be heard at such inquiry.

(2) Evidence given at a public inquiry held under this section shall, if the person holding such inquiry so requires, be given on oath (which such person is hereby empowered to administer) and any person who gives false evidence at such inquiry shall be guilty of perjury and punishable accordingly.

6 Penalties for offences.

6.—Every person guilty of an offence under any section of this Act shall, save in the case of an offence for which a special penalty is provided by this Act, be liable on summary conviction thereof to, in the case of a first offence under such section, a fine not exceeding ten pounds or, in the case of a second or any subsequent offence under such section, a fine not exceeding twenty-five pounds.

7 Offences by bodies corporate.

7.—Where an offence under any section of this Act is committed by a body corporate and is proved to have been so committed with the consent or approval of, or to have been facilitated by any neglect on the part of, any director, manager, secretary or other officer of such body corporate, such director, manager, secretary or other officer shall also be deemed to be guilty of such offence and shall be liable to be proceeded against and punished accordingly.

8 Prosecution of offences.

8.—An offence under any section of this Act may be prosecuted by the Minister or a member of the Gárda Síochána.

9 Powers of entry and investigation by members of the Gárda Síochána.

9.—(1) Any member of the Gárda Síochána while in uniform may enter any shop and may there make such investigations as he may think proper and may demand of any person found in such shop his name and address.

(2) The proprietor of any shop, which a member of the Gárda Síochána is entitled to enter under this section, shall do all such things and take all such steps as shall be reasonably required by such member to facilitate, in respect of such shop, the exercise by such member of any of the powers conferred on him by this section, and if any such proprietor fails or refuses to do anything or to take any steps required of him as aforesaid he shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to a fine not exceeding ten pounds.

(3) Every person who does any of the following things, that is to say:—

(a) obstructs or impedes any member of the Gárda Síochána in the exercise of any of the powers conferred on such member by this section, or

(b) when his name or his address is demanded of him by any such member in exercise of a power in that behalf conferred by this section, fails or refuses to give his name or fails or refuses to give his address or gives a name or an address which is false or misleading,

shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to a fine not exceeding ten pounds.

(4) The provisions of this section shall extend to any place where any retail trade or business is carried on as if that place were a shop and as if in relation to any such place the person by whom the retail trade or business is carried on were the proprietor of a shop.

10 Regulations.

10.—The Minister may make regulations in relation to any matter or thing referred to in this Act as prescribed or to be prescribed.

11 Laying of orders before Houses of the Oireachtas.

11.—Every order made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling such order is passed by either such House within the next subsequent twenty-one days on which such House has sat after such order is laid before it, such order shall be annulled accordingly, but without prejudice to the validity of anything previously done under such order.

12 Expenses.

12.—All expenses incurred in carrying this Act into execution shall, to such extent as shall be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

13 Repeals.

13.—The enactments mentioned in the First Schedule to this Act are hereby repealed to the extent mentioned in the third column of that Schedule.

14 Non-application of Act to certain fairs, bazaars, etc.

14.—Nothing in this Act shall apply to any fair lawfully held or to any bazaar or sale of work for charitable or other purposes from which no private profit is derived, or to any library at which the business of lending books or periodicals is not carried on for the purposes of gain, other than that of making profits for some philanthropic or charitable object (including any religious or educational object) or for any club or institution which is not itself carried on for purposes of gain.

15 Saving for sales to certain State authorities and for sale of stores for ships and aircraft.

15.—Nothing in this Act shall be construed as rendering it unlawful to keep open a shop at any time for the serving of a customer with any victuals, stores or other necessities required by any naval, military or air force authority of the State or required for any ship or aircraft on her arrival at or immediately before her departure from a port, or aerodrome, if such shop is kept open only for such time as is necessary for the serving of such customer.

PART II. Weekly Half-Holidays in Shops.

16 Exempted businesses for purposes of Part II.

16.—(1) Each of the following businesses shall be an exempted business for the purposes of this Part of this Act, that is to say:—

(a) subject to the operation of an order made by the Minister under sub-section (2) of this section, any business specified in the Third Schedule to this Act;

(b) any business declared by an order, made by the Minister under sub-section (3) of this section and for the time being in force, to be an exempted business for the purposes of this Part of this Act.

(2) The Minister may, whenever and so often as he thinks fit, by order under this sub-section declare that any business specified in the Third Schedule to this Act shall cease to be an exempted business for the purposes of this Part of this Act and upon the coming into force of such order such business shall cease to be an exempted business for the said purposes.

(3) The Minister may, whenever and so often as he thinks fit, by order under this sub-section declare that any business shall be an exempted business for the purposes of this Part of this Act.

(4) The Minister may by order under this sub-section revoke any order made by him under the immediately preceding sub-section.

17 Scheduled businesses for purposes oft Part .

17.—Each of the following businesses shall be a scheduled business for the purposes of this Part of this Act, that is to say:—

(a) any excepted business;

(b) any business which is for the time being an exempted business for the purposes of this Part of this Act.

18 “The weekly half-holiday.”

18.—(1) The proprietor of every shop shall specify in a notice (in this section referred to as a half-holiday notice), which shall be in the prescribed form and be kept affixed in a prominent place in such shop, the week-day in each week on which he proposes to close such shop not later than the hour of 1 p.m. and shall send to the sergeant in charge of the Gárda Síochána station nearest to such shop a copy of such half-holiday notice before the commencement of the first week to which such notice relates.

(2) The proprietor of a shop may change the weekday specified in a half-holiday notice, but shall not do so—

(a) in case such shop is situate in a county borough oftener than once in any period of three months, nor

(b) in any case unless he has given to the sergeant in charge of the Gárda Síochána station nearest to such shop, not later than seven days before he makes such change, notice of his intention to do so and of the proposed change.

(3) If the proprietor of a shop acts in contravention (whether by omission or commission) of this section, such proprietor shall be guilty of an offence under this section.

(4) In this Act the expression “weekly half-holiday” when used in relation to a particular shop in respect of a particular week means the weekday in such week specified by the proprietor of such shop in pursuance of sub-section (1) of this section.

(5) This section shall not apply to any shop in which either the only business carried on therein is a scheduled business or all the businesses carried on therein are scheduled businesses.

19 Closing of shops at 1 p.m. on weekly half-holidays.

19.—(1) Subject to the provisions of this section, it shall not be lawful for the proprietor of any shop to keep such shop open for the serving of customers later than the hour of 1 p.m. on the weekday in any week which is in relation to such shop the weekly half-holiday in that week.

(2) Where a shop is closed during the whole day on the occasion of a public holiday in any week and that day is not the weekly half-holiday in respect of such shop in that week, it shall be lawful for the proprietor of such shop to keep such shop open for the serving of customers after the hour of 1 p.m. on the weekly half-holiday immediately preceding or immediately succeeding that public holiday.

(3) The Minister may, whenever and so often as he thinks fit, by order under this sub-section—

(a) declare that a particular area (being an area frequented as a holiday resort during certain seasons of the year) specified or delimited in such order shall be an exempted area for the purposes of such order, and

(b) suspend during a specified period within such season in respect of all shops of a particular class (defined in such manner and by reference to such things as the Minister thinks proper) situate in such exempted area the operation of sub-section (1) of this section.

(4) The provisions of this section shall not apply to any shop in which either the only business carried on therein is a scheduled business or all the businesses carried on therein are scheduled businesses.

(5) Where—

(a) any excepted business is carried on in a shop, and

(b) any other business (not being a scheduled business) is carried on in such shop,

nothing contained in this section shall render it unlawful for the proprietor of such shop to keep such shop open for the serving of customers at any time on the weekday in any week which is in relation to such shop the weekly half-holiday, if while such shop is so kept open no transaction (other than a transaction connected with such excepted business) is carried out therein.

(6) If the proprietor of any shop acts in contravention of this section such proprietor shall be guilty of an offence under this section.

(7) Where the proprietor of a shop is charged with an offence under this section and it is proved that a customer was being served in such shop after the hour of 1 p.m. on the weekly half-holiday in any week, it shall be a good defence to such charge for such proprietor to prove that—

(a) the hour at which such customer was being served was not later than 1.15 p.m. on such weekly half-holiday and that such customer was in such shop before the hour of 1 p.m. on such weekly half-holiday, or