Holidays (Employees) Act , 1939

1 Definitions generally.

1.—(1) In this Act—

the expression “the Act of 1936” means the Conditions of Employment Act, 1936 (No. 2 of 1936);

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

the word “employ” means employ, under a contract of service (whether the contract is expressed or implied or is oral or in writing) or a contract of apprenticeship, and cognate words shall be construed accordingly;

the word “day” means, in relation to a person whose spell of work begins on one day and ends on the next, a period of twenty-four hours commencing at the time at which such spell of work begins;

the word “week” means any period of seven consecutive days;

the word “month” means any period of thirty consecutive days;

the expression “industrial work” has the same meaning as in the Act of 1936;

the expression “offence under any section of this Act” includes an offence under any sub-section of a section of this Act;

the word “prescribed” means prescribed by regulations made by the Minister under this Act.

(2) A person in the service of a local authority shall be deemed for the purposes of this Act to be employed by such local authority.

2 Workers.

2.—(1) In this Act—

the word “worker” means any person of the age of fourteen years or upwards who is employed, other than—

(a) a person whose rate of remuneration exceeds in value three hundred and fifty pounds per annum, or

(b) a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented or repaired or adapted for sale in his own home or on other premises not under the control or management of the person who gave out the materials or articles, or

(c) a person who is a member of the staff of a shop within the meaning of the Shops (Conditions of Employment) Act, 1938 (No. 4 of 1938), or

(d) a person who is a railway refreshment-car attendant, or

(e) a person who is an agricultural worker within the meaning of this section, or

(f) a person who is employed as the master or a member of the crew of any sea-going vessel (other than a barge or a hopper), whether publicly or privately owned, engaged in the transport of cargo or passengers, or

(g) a person who is employed on a lighthouse or lightship, or

(h) a person who is a clergyman in Holy Orders, or

(i) a person who is a member of any religious order or community, or

(j) a person—

(i) who is the wife, husband, father, mother, grandfather, grandmother, step-father or step-mother of or who is a son, daughter, grandson, grand-daughter, step-son, step-daughter, brother, sister, half-brother or half-sister of, the person by whom he is employed, and

(ii) who is maintained by and dwells in the house of such last-mentioned person, or

(k) a person who is employed in extracting from a mine any substance (other than coal, fireclay, slate, gypsum, stone or any prescribed substance), or

(l) a person who is employed by or under the State other than—

(i) a person so employed to whom, by virtue of section 6 of the Act of 1936, the Act of 1936 applies, or

(ii) a person so employed as a porter, doorkeeper, messenger, night-watchman, charwoman, cleaner, or labourer or in other subordinate duties, or

(iii) a person so employed in an unestablished capacity as an artisan or other skilled labourer, or

(m) a person employed as a fisherman, or

(n) a person who—

(i) is employed on any work or scheme of works the expenses of which are in whole or in part met from moneys provided by the Oireachtas for the provision of employment and the relief of distress, and

(ii) is so employed for a period of time during which, in accordance with a pre-arranged system, he work for an aggregate number of days not exceeding five times the number of weeks during which the employment continues, or

(o) any person who belongs to an excluded class within the meaning of this section;

the expression “domestic worker” means a person who—

(a) is a worker and

(b) is not an industrial worker, and

(c) either—

(i) is entitled under his contract of service to free lodgings either in his employer's house or elsewhere, or

(ii) does work of a personal or domestic nature in or about the dwelling-house of his employer;

the expression “non-domestic worker” means a worker who is not a domestic worker;

the expression “industrial worker” means a worker, other than an outworker within the meaning of the Act of 1936, who does industrial work for a salary or wages or for the purpose of learning any trade or calling;

the expression “non-working day” means in relation to a worker a day on which such worker does not under his contract of service normally work;

the expression “a full day's pay” when used in relation to a worker means the amount payable to such worker under his contract of service in respect of a normal full working day.

(2) For the purposes of sub-section (1) of this section the expression “agricultural worker” means a person who is employed by the occupier of agricultural land and is so employed wholly or mainly on work (including industrial work) connected with the user of such land, but does not include—

(a) a gamekeeper, or

(b) a stableman, or

(c) a groomsman, or

(d) a person wholly or mainly employed in work connected with any part of such land which is maintained as an amenity to a residence on such land, or

(e) any person belonging to a class (defined in such manner and by reference to such things as the Minister thinks fit) of workers declared by regulations made by the Minister (which regulations the Minister is hereby authorised to make) and for the time being in force to be a class of non-agricultural workers for the purposes of this Act.

In this sub-section the expression “agricultural land” means land used for tillage, dairy farming, poultry farming, market gardening, or horticulture or used as grazing, meadow or pasture land but does not include osier land or woodland or land used as a nursery ground.

(3) The Minister may, whenever and so often as he thinks fit, by order declare that any particular class (defined in such manner and by reference to such things as the Minister thinks proper) of employed persons shall be an excluded class for the purposes of this section, and whenever any such order is made then so long as such order is in force, the class of employed persons to which such order relates shall be an excluded class for the purposes of this section.

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

3 Employer of worker in mines to which the Coal Mines Act, 1911, applies.

3.—(1) The following provisions shall apply in respect of any worker employed in a mine to which the Coal Mines Act, 1911, applies, that is to say:—

(a) in case such mine is required by that Act to have a manager—

(i) the owner, the agent and the manager of such mine shall each be deemed, for the purposes of this Act, to be the employer of such worker,

(ii) where proceedings for any offence under this Act are taken against the owner (not being the manager) or the agent (not being the manager) of such mine, it shall be a good defence to such proceedings if such owner or agent proves to the satisfaction of the court—

(I) that he was not in the habit of taking and did not in respect of the matters in question take any part in the management of such mine, and

(II) that he made all financial and other provision necessary to enable the manager to carry out his duties, and

(III) that the offence was committed without his knowledge, consent or connivance;

(b) in case such mine is not required by that Act to have a manager, the owner and the agent of such mine shall each be deemed, for the purposes of this Act, to be the employer of such worker.

(2) In this section the words “owner”, “agent” and “manager” when used in relation to a mine have the same respective meanings as in the Coal Mines Act, 1911.

4 Continuous employment.

4.—(1) Where the employment of a worker with a particular employer is interrupted by reason of the illness of such worker, the temporary cessation of the work on which he is so employed, the temporary reduction of the weekly quantity of such work, or any other temporary cause not due to the act or default of such worker, such worker shall, for the purpose of reckoning any period of continuous employment with such employer within the meaning of this Act, be deemed to have been in the employment of such employer during such interruption if, but only if, the following conditions are complied with, that is to say:—

(a) at the end of such interruption such worker returns to employment with the employer with whom he had been employed immediately before such interruption, and

(b) the duration of such interruption does not exceed one month.

(2) Where a worker who is a member of the Reserve Force of the Defence Forces of Ireland is absent from his employment for the purpose of attending and performing his duty as such member at any initial training, annual training, or test mobilisation, such worker shall, for the purpose of reckoning any period of employment or of continuous employment within the meaning of this Act, be deemed to have been in his said employment during his said absence, and accordingly the period of his said absence shall for the purposes of this Act be reckoned in the said period of employment or continuous employment.

5 “Employment year” and “employment half-year”.

5.—(1) In this Act—

the expression “employment year” when used in relation to a worker means a period of three hundred and sixty-five days (excluding any day which is the 29th day of February) commencing on the day on which such worker last entered the employment in relation to which the expression is used or on any anniversary of that day;

the expression “the first half” when used in relation to an employment year of a domestic worker means a period of one hundred and eighty-three days commencing on the first day of such employment year;

the expression “the second half” when used in relation to an employment year of a domestic worker means so much of such employment year as is not included in the first half of such employment year;

Where a worker entered on employment on the 29th day of February he shall for the purposes of the interpretation of the definition of the expression “employment year” be deemed to have entered that employment on the next following day.

(2) Where—

(a) the ownership of any business, whether carried on for profit or gain or not, is transferred by act of the parties or by operation of law during the currency of an employment year of any worker who immediately before such transfer was employed by the person carrying on such business, and

(b) such worker continues after such transfer to be employed by the person (in this sub-section referred to as the new employer) to whom such ownership is transferred, the following provisions shall have effect, that is to say:—

(i) such worker shall, for the purposes of this Act (including sub-section (1) of this section but excluding section 9 (which relates to rights of non-domestic workers in respect of public holidays) of this Act in respect of any public holidays previous to such transfer), be deemed to have been in the employment of the new employer as on and from the beginning of such employment year;

(ii) if such worker has been allowed before such transfer annual leave or, in case such worker is a domestic worker, annual leave or semi-annual leave during such employment year, such annual leave or semi-annual leave shall, for the purposes of this Act, be deemed to have been allowed by the new employer.

(3) In this section the word “business” includes any profession, office, establishment or trade of whatsoever kind.

6 Construction of expression “allow a whole holiday”.

6.—A person shall be deemed, for the purposes of this Act, to allow a worker employed by him a whole holiday on a particular day if, but only if, such person does not permit such worker to do on that day any work for him.

7 Public holidays as respects industrial workers.

7.—Each day which is, by virtue of section 7 of the Act of 1936, a public holiday, for the purposes of the Act of 1936, in respect of an industrial worker shall, for the purposes of this Act, be also a public holiday in respect of such worker, and in this Act the expression “public holiday” when used in relation to an industrial worker shall be construed accordingly.

8 Public holidays as respects non-domestic workers who are not industrial workers.

8.—(1) Subject to the provisions of this section each of the following days shall, in respect of non-domestic workers who are not industrial workers, be for the purposes of this Act, 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 employer of any non-domestic worker, other than an industrial worker, may substitute for any public holiday (other than Christmas Day or St. Patrick's Day) falling in a calendar year either—

(a) the Church holiday falling in that calendar year immediately before such public holiday by giving to such non-domestic worker not less than fourteen days before such Church holiday notice of his intention to effect such substitution, or

(b) the Church holiday falling in that calendar year immediately after such public holiday or, if such public holiday is a day which is a public holiday by virtue of paragraph (b) of sub-section (1) of this section, the 1st day of January next following by giving to such non-domestic worker not less than fourteen days before such public holiday notice of his intention to effect such substitution,

and whenever such notice is given the Church holiday so substituted for a public holiday shall in respect of such non-domestic worker be a public holiday for the purposes of this Act instead of the day for which it is so substituted.

For the purposes of this sub-section each of the following days shall be a Church holiday, that is to say:—

(i) the 1st day of January, except when it falls on a Sunday,

(ii) the 6th day of January, except when it falls on a Sunday,

(iii) Ascension Thursday,

(iv) the Feast of Corpus Christi,

(v) the 29th day of June, except when it falls on a Sunday,

(vi) the 15th day of August, except when it falls on a Sunday,

(vii) the 8th day of December, except when it falls on a Sunday.

(4) A railway company which employs any person who is a non-domestic worker and is not an industrial worker may also substitute for Easter Monday the previous Good Friday by giving to such person not less than fourteen days before such Good Friday notice of its intention to effect such substitution and whenever any such notice is given the Good Friday so substituted shall in respect of such person be a public holiday for the purposes of this Act instead of the Easter Monday for which it is so substituted.

(5) The notice mentioned in sub-section (3) or in sub-section (4) of this section shall be in writing and may be given to any person by handing a copy thereof to him personally or by posting a copy thereof in a conspicuous position in the place where such person is employed.

(6) In this Act the expression “public holiday” when used in relation to a non-domestic worker who is not an industrial worker shall be construed in accordance with the foregoing provisions of this section.

9 Rights of non-domestic workers in respect of public holidays.

9.—(1) Where—

(a) a non-domestic worker is in the employment of a person on a public holiday, and

(b) such worker has worked for such person for not less than one hundred and fifty hours at any time during the period of five weeks immediately preceding such public holiday, and

(c) either—

(i) such worker has been allowed (whether in compliance with sub-section (1) of section 49 of the Act of 1936 or otherwise) by such person a whole holiday on such public holiday, or

(ii) such public holiday falls on a non-working day and such worker does not work for such person on such public holiday,

such person shall, subject however to the provisions of sub-section (7) of this section, pay to such worker in respect of such public holiday a sum equivalent to a full day's pay.

(2) Where—

(a) a non-domestic worker is in the employment of a person on a public holiday, and

(b) such worker has worked for such person for not less than one hundred and fifty hours at any time during the period of five weeks immediately preceding such public holiday, and

(c) such worker has worked on such public holiday for such person, and

(d) such worker has not received in respect of such public holiday a full day's pay increased by twenty-five per cent.,

the following provisions shall, subject however to the provisions of sub-section (7) of this section, have effect, that is to say:—

(e) if such worker does not cease to be in the employment of such person before the expiration of one month after such public holiday, then—

(i) such person shall allow to such worker a whole holiday on a working day before such expiration and shall, if he so allows such whole holiday, pay to such worker in respect thereof a sum equivalent to a full day's pay,

(ii) if such person fails so to allow such worker such whole holiday, such person shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to the penalties mentioned in the Schedule to this Act, and shall (whether proceedings for such offence have or have not been taken) pay to such worker in respect of such public holiday a sum equivalent to a full day's pay, but proceedings for such offence or to recover such sum shall not be instituted until the expiration of the employment year of such worker within which such public holiday falls, or, in case such worker has been allowed annual leave, the expiration of such annual leave, or the cesser of his employment (whichever first happens);