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4 1938

SHOPS (CONDITIONS OF EMPLOYMENT) ACT, 1938

PART IV.

Holidays.

“Sunday-trading shop”, “special-trade shop” and “non-special-trade shop”.

26. —In this Part of this Act—

the expression “Sunday-trading shop” means a shop (other than a refreshment house or licensed premises) in which business is generally carried on on Sundays;

the expression “special-trade shop” means a shop which is—

(a) a refreshment house, or

(b) licensed premises, or

(c) a Sunday-trading shop, or

(d) a railway bookstall on or adjoining a railway platform;

the expression “non-special-trade shop” means a shop which is not a special-trade shop.

“Employment year”.

27. —(1) In this Part of this Act, the expression “employment year” when used in relation to a member of the staff of a shop means a period of one year beginning on the day on which such member last entered the employment of the proprietor of such shop or any anniversary of that day.

(2) Where—

(a) the ownership of a business carried on in a shop is after the commencement of this Part of this Act transferred by act of parties or by operation of law during the currency of an employment year of any person who immediately before such transfer was a member of the staff of that shop, and

(b) such person continues after such transfer to be a member of the staff of such shop,

such person shall, for the purposes of this Part of this Act (including sub-section (1) of this section) be deemed to have been employed as a member of the staff of such shop by the person (in this sub-section referred to as the new proprietor) to whom such business is transferred as on and from the beginning of such employment year, but if such person has been allowed before such transfer annual leave in respect of such employment year he shall be deemed for the said purposes to have been allowed such annual leave by the new proprietor.

“Continuous employment”.

28. —Where the employment of a member of the staff of a shop with the proprietor of such shop is interrupted by reason of the illness of such member, 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 member, such member shall, for the purpose of reckoning any period of continuous employment with such proprietor within the meaning of any section of this Part of this Act, be deemed to have been in the employment of such proprietor 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 member returns to employment with such proprietor, and

(b) such member is not employed in doing shop work during such interruption, and

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

Construction of expressions “allow a whole holiday” and “allow a half-holiday”.

29. —(1) The proprietor of a shop shall be deemed for the purposes of this Part of this Act to allow a member of the staff of such shop a whole holiday on a particular day if, but only if, such proprietor does not permit such member to do on that day any work for him.

(2) The proprietor of a shop shall be deemed for the purposes of this Part of this Act to allow a member of the staff of such shop a half-holiday on a particular day, if, but only if, such proprietor does not permit such member to do, on that day after the time which is in relation to such member the appointed time, any work for him.

(3) In this section the expression “the appointed time” means—

(a) in relation to a member of the staff of a shop which is a refreshment house, the hour of 3 p.m. or the expiration of the fifth hour after the time at which such person commenced work on the relevant day in such shop, whichever is the earlier, and

(b) in relation to a member of the staff of any other shop, the hour of 1.30 p.m.

Public holidays.

30. —(1) Subject to the provisions of this section, each of the following days shall, for the purposes of this Part 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).

Pay in respect of holidays.

31. —(1) Where the proprietor of a shop in pursuance of this Act allows to any member of the staff of that shop any annual leave, such proprietor shall pay to such member, in respect of each day of such annual leave, salary or wages at the rate at which the remuneration of such member was payable immediately before the commencement of such annual leave.

(2) Where—

(a) the proprietor of a shop allows, in pursuance of this Part of this Act, any member of the staff of that shop on any day a whole holiday (other than a whole holiday which forms part of annual leave), or

(b) the proprietor of a non-special-trade shop allows any member of the staff of that shop a whole holiday on a public holiday,

such proprietor shall not, in respect of such whole holiday, make any deduction from the salary or wages of such member.

(3) In this section the expression “salary or wages” shall in relation to the member of the staff of a shop be construed as excluding overtime pay and any payment made for commencing work earlier or finishing work later than other members of the staff of such shop employed in similar work.

(4) For the purpose of this section the expression “salary or wages” shall include, in the case of a member of the staff of a shop to whom annual leave is allowed and who, immediately before the commencement of such annual leave, was entitled to receive as part his remuneration either board or lodgings or both, such sum in respect thereof as, in default of agreement, may be fixed by a Justice of the District Court, having jurisdiction in the area in which such shop is situate, upon the application (which shall be in the prescribed form and of which a copy shall, not less than ten days before the application is heard, be served personally or by registered letter on the proprietor of such shop or his representative and on the district court clerk) of such member, and the decision of such Justice on such application shall be final and conclusive.

(5) The Minister for Justice may make regulations prescribing the form referred to in the immediately preceding sub-section as prescribed.

Limited application of Part IV to railway refreshment-car attendants.

32. —So much of this part of this Act as relates to annual leave of members of staffs of shops and pay in respect of annual leave shall apply in respect of railway refreshment-car attendants, and for the purposes of such application—

(a) a railway refreshment-car attendant shall be deemed to be a member of the staff of a special-trade shop, and

(b) the railway company by which a railway refreshment-car attendant is employed shall be deemed to be the proprietor of a special-trade shop.

Weekly half-holidays of members of staffs of shops (other than refreshment houses and licensed premises) and compensatory whole holidays in lieu of weekly half-holidays of members of staffs of refreshment houses and licensed premises.

Weekly half-holidays of members of staffs of shops (other than refreshment houses, and licensed premises).

33. —(1) The proprietor of a shop, which is either a non-special-trade shop or a Sunday-trading shop, shall allow to each member of the staff of that shop a half-holiday on one weekday (which shall not if such shop is a non-special-trade shop be a day which is a public holiday) in each week (other than a week included in a public-holiday fortnight) and in each public holiday fortnight.

(2) The proprietor of a shop, which is either a non-special-trade shop or a Sunday-trading shop, shall, in respect of each week (other than a week included in a public-holiday fortnight) and of each public-holiday fortnight, give not later than the Saturday preceding that week or that public-holiday fortnight (as the case may be) to each member of the staff of such shop who is in his employment on that Saturday, notice in the prescribed form and manner specifying the weekday in that week or in that public-holiday fortnight (as the case may be) on which he proposes to allow such member a half-holiday in pursuance of sub-section (1) of this section, and if default is made in compliance with this sub-section or if a half-holiday is allowed in that week or in that public-holiday fortnight on any weekday other than the weekday specified in such notice, any half-holiday allowed to such member in that week or in that public-holiday fortnight shall be deemed, for the purposes of the said sub-section (1), not to have been allowed under the said sub-section (1).

(3) Where the period of annual leave allowed to a member of the staff of a non-special-trade shop falls wholly within one week neither sub-section (1) nor sub-section (2) of this section shall apply in respect of that week.

(4) Where the period of annual leave allowed to a member of the staff of a Sunday-trading shop falls wholly within two weeks, neither sub-section (1) nor sub-section (2) of this section shall apply in respect of those weeks.

(5) Where the period of annual leave allowed to a member of the staff of a non-special-trade shop falls within two weeks, sub-sections (1) and (2) of this section shall apply only in respect of such one of those weeks as the proprietor of such shop may select, and the day specified in a notice under the said sub-section (2) in the week so selected shall not be a day which falls within such period of annual leave.

(6) Where the period of annual leave allowed to a member of the staff of a Sunday-trading shop falls within three weeks, the following provisions shall have effect, that is to say:—

(a) neither sub-section (1) nor sub-section (2) of this section shall apply in respect of the second of those weeks,

(b) sub-sections (1) and (2) of this section shall apply only in respect of such one of the first or third of those weeks as the proprietor of such shop may select and the day specified in a notice under the said sub-section (2) in the week so selected shall not be a day falling within such period of annual leave.

(7) If the proprietor of any shop, which is a non-special-trade shop or a Sunday-trading shop, fails, refuses or neglects to comply with the provisions of sub-section (1) of this section, such proprietor shall be guilty of an offence under this section and shall be liable on summary conviction thereof to the penalties mentioned in the Third Schedule to this Act.

(8) In this section the expression “public-holiday fortnight” means in relation to any shop the week in which a day which is for that shop a public holiday falls, and the immediately preceding week.

(9) In this Part of this Act the expression “statutory half-holiday” means a day on which a half-holiday is allowed in pursuance of this section.

Compensatory holidays to members of staffs of refreshment houses and licensed premises in lieu of weekly half-holidays.

34. —(1) The proprietor of a shop, which is either a refreshment house or licensed premises, shall allow to each member of the staff of that shop such number of whole holidays as will ensure that such member does not receive—

(a) less than two whole holidays on weekdays in each month during which such member has been continuously employed by him, nor

(b) less than twenty-six whole holidays on weekdays in each period of twelve months, commencing on the 1st day of January, during which such member has been continuously employed by him.

(2) For the purposes of sub-section (1) of this section where a member of the staff of a shop is allowed two half-holidays in any month, he shall be deemed to have been allowed one whole holiday in such month.

(3) Where annual leave is allowed to a member of the staff of a shop, which is either a refreshment house or licensed premises, the following provisions shall have effect, that is to say:—

(a) the proprietor of such shop shall be deemed for the purposes of this section, to have allowed such member one whole holiday in the month in which such annual leave commences;

(b) no part of a day falling within such annual leave shall be deemed to be a half-holiday for the purposes of sub-section (2) of this section.

(4) If the proprietor of a shop, which is either a refreshment house or licensed premises, fails, neglects or refuses to comply with the provisions of sub-section (1) of this section, such proprietor shall be guilty of an offence under this section and shall be liable on summary conviction thereof to the penalties mentioned in the Third Schedule to this Act.

Compensatory holidays to members of staffs of shops working on Sundays and to members of staffs of non-special-trade shops working on public holidays.

Compensatory holidays to members of staffs of shops engaged in work on Sunday.

35. —(1) Where the proprietor of a shop does not allow a member of the staff of that shop a whole holiday on a Sunday in any week, such proprietor shall allow to him on some day (not being a day on which such proprietor allows him, in pursuance of any other provision of this Part of this Act, a whole holiday or a half-holiday) within that week—

(a) in case such member does shop work for more than four hours on that Sunday, a whole holiday, or

(b) in case such member does shop work for more than two hours but not more than four hours, a half-holiday.

(2) Where—

(a) a member of the staff of a shop is entitled in any week to a half-holiday under this section, and

(b) the proprietor of such shop allows such member a whole holiday on the day in such week which is in respect of such member a statutory half-holiday,

such proprietor shall be deemed to have allowed such member a half-holiday under this section on that day.

(3) If the proprietor of a shop fails, neglects or refuses to comply with the provisions of sub-section (1) of this section, such proprietor shall be guilty of an offence under this section and shall be liable on summary conviction thereof to the penalties mentioned in the Third Schedule to this Act.

Compensatory holidays to members of staffs of non-special-trade shops engaged in work on public holidays.

36. —(1) Where the proprietor of a non-special-trade shop does not allow to a member of the staff of that shop a whole holiday on a public holiday, or allows such member a whole holiday on a public holiday but does so in pursuance of the immediately preceding section, the following provisions shall have effect, that is to say:—

(a) such proprietor shall allow to such member a whole holiday on some weekday (not being another public holiday nor a day on which such proprietor allows him, in pursuance of any other provision of this Part of this Act, a whole holiday or a half-holiday) within fourteen days after such public holiday;

(b) if such member ceases before the expiration of such fourteen days to be in the employment of such proprietor and such member has not been then allowed such whole holiday, such proprietor shall pay to him one day's pay calculated at the rate which would be applicable if such public holiday were a day of annual leave.

(2) If the proprietor of a non-special-trade shop fails, neglects or refuses to comply with the provisions of sub-section (1) of this section, such proprietor shall be guilty of an offence under this section and shall be liable on summary conviction thereof to the penalties mentioned in the Third Schedule to this Act.

Annual Leave of Members of Staffs of Shops.

Annual leave of members of staffs of shops.

37. —(1) The proprietor of a shop shall allow to each member of the staff of such shop in every complete employment year of such member during which he has been continuously in the employment of such proprietor and has worked in such employment for not less than eighteen hundred hours—

(a) if such shop is a special-trade shop, fourteen consecutive whole holidays (in this Act referred to as annual leave), or

(b) if such shop is a non-special-trade shop, six consecutive whole holidays (in this Act also referred to as annual leave).

(2) Where the proprietor of both a special-trade shop and a non-special-trade shop, employs any person as a member of the staff of one of such shops during any part of an employment year of such person and as a member of the staff of the other of such shops during any other part of such employment year, such person shall be deemed for the purposes of this section to be a member of the staff of such special-trade shop during such employment year or so much thereof as he may be in the employment of such proprietor.

(3) Where a person employed as a member of the staff of a shop ceases, at any time other than the end of an employment year of such person, to be in the employment of the proprietor of such shop as a member of the staff of such shop and such person has been in the employment of such proprietor during not less than one complete month in such employment year and has worked for not less than one hundred and fifty hours in such month, the following provisions shall have effect, that is to say:—

(a) in case such shop is a special-trade shop and such proprietor has not allowed such person before such cesser fourteen consecutive whole holidays in respect of the portions of such employment year during which he was so employed, such proprietor shall pay such person at such cesser—

(i) two days' pay (calculated at the rate which would be applicable if such day were a day of annual leave allowed immediately before such cesser) in respect of each complete period of two months in the said portion of such employment year during which he has worked not less than three hundred hours, and

(ii) two days' pay (calculated as aforesaid) in respect of the period (if any) in the said portion of such employment year which is less than two months but not less than one month and during which he has worked for not less than one hundred and fifty hours;

(b) in case such shop is a non-special-trade shop and such proprietor has not allowed such person before such cesser six consecutive whole holidays in respect of the portion of such employment year during which he was so employed, such proprietor shall pay to such person at such cesser—

(i) one day's pay (calculated as aforesaid) in respect of every complete period of two months in the said portion of such employment year during which he has worked not less than three hundred hours, and

(ii) one day's pay (calculated as aforesaid) in respect of the period (if any) in the said portion of such employment year which is less than two months but not less than one month and during which he has worked for not less than one hundred and fifty hours.

(4) The Minister may, whenever and so often as he so thinks proper, make regulations varying, in respect of all or any particular class or classes of members of staffs of shops all or any of the periods of eighteen hundred hours, three hundred hours, and one hundred and fifty hours mentioned in sub-sections (1) and (3) of this section by substituting for such periods or period such other periods or period as the Minister shall think proper, and whenever any such regulations are in force the said sub-sections shall have effect, in respect of the members of staffs of, shops or the class or classes of the members of staffs of shops to which such regulations apply, as if the said periods or such of them as are effected by such regulations were varied in the manner stated in such regulations.

(5) In the case of a member of the staff of a special-trade shop, no day on which such member is allowed, in pursuance of any other section contained in this Part of this Act, a whole holiday shall be reckoned as a day of annual leave, but if any such day intervenes between days of annual leave such days shall be deemed to be consecutive notwithstanding such intervention.

(6) In the case of a member of the staff of a non-special-trade shop, no day which is a Sunday or a public holiday or a day on which such member is allowed, in pursuance of any other section contained in this Part of this Act, a whole holiday shall be reckoned as a day of annual leave, but if any such day intervenes between days of annual leave such days shall be deemed to be consecutive notwithstanding such intervention.

(7) Where a member of the staff of any shop 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 member shall, for the purpose of reckoning any period of employment or of continuous employment within the meaning of this section, 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 section be reckoned in the said period of employment or continuous employment.

(8) This section shall apply to the employment year current at the commencement of this Part of this Act of every person who is a member of the staff of a shop at such commencement, and this section shall have effect in respect of such employment year and such person as if this section had been in force at the beginning of such employment year, but subject to the modifications, that—

(a) if such employment year expires within one month after the commencement of this Part of this Act, the proprietor of such shop shall be deemed to have complied with this section if he allows to such person not later than three months after the expiration of such employment year, such annual leave as such person may be entitled to under this section in respect of such employment year, and

(b) if such shop is a special-trade shop and such proprietor has, before the commencement of this Part of this Act, allowed to such person in such employment year one or more whole holidays which would be annual leave for the purposes of this section but for the fact that such whole holidays were less than fourteen or were not consecutive or were both less than fourteen and not consecutive, the said whole holidays so allowed shall be deemed to be annual leave for the purposes of this section and such person shall only be entitled in respect of such employment year to such number (if any) of consecutive whole holidays after such commencement as is equal to the number (if any) of days by which the number of whole holidays so allowed is less than fourteen, and

(c) if such shop is a non-special-trade shop and such proprietor has, before the commencement of this Part of this Act, allowed to such person in such employment year one or more whole holidays which would be annual leave for the purposes of this section but for the fact that such whole holidays were less than six or were not consecutive or were both less than six and not consecutive, the said whole holidays so allowed shall be deemed to be annual leave for the purposes of this section and such person shall only be entitled in respect of such employment year to such number (if any) of consecutive whole holidays after such commencement as is equal to the number (if any) of days by which the number of whole holidays so allowed is less than six.

(9) If the proprietor of a shop fails to pay to any member of the staff of such shop any moneys which become payable to such member under this section such member may recover such moneys as a simple contract debt from such proprietor.

(10) If the proprietor of a shop fails to allow annual leave to any member of the staff of such shop in accordance with this section he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to the penalties mentioned in the Third Schedule to this Act.

Time of annual leave.

38. —(1) The time in any employment year at which the proprietor of a shop shall allow annual leave to a member of the staff of such shop who is entitled to annual leave under this Part of this Act shall be selected by such proprietor.

(2) If in any employment year of a member of the staff of a shop such employment year has so far expired that there remains only, in case such shop is a special-trade shop, fourteen working days thereof unexpired or, in case such shop is a non-special-trade shop, six working days thereof unexpired and the proprietor of such shop has not at that time allowed such member annual leave, such member, if he is entitled to annual leave under this Act, may absent himself from his work for such proprietor for such fourteen days or six days (as the case may be) and shall not by reason of so absenting himself be deemed to have committed any breach of his contract of service with such proprietor, and such proprietor shall pay to such member in respect of such fourteen days or six days (as the case may be) the amount which he would be liable to pay if he had allowed such fourteen days or six days as annual leave.

(3) If the proprietor of a shop allows to a member of the staff of such shop in any employment year a period of annual leave earlier than, in case such shop is a special-trade shop, the last fourteen working days of such employment year or, in case such shop is a non-special-trade shop, the last six working days of such employment year and such member leaves the employment of such proprietor before the termination of such employment year, such proprietor shall not be entitled in respect of such allowance of annual leave to reduce the period of notice required for terminating such employment, nor the pay nor other emoluments to which such member may be entitled at the time of leaving such employment.

(4) If the proprietor of a shop fails to pay to any member of the staff of such shop any moneys which become payable to such member under this section such member may recover such money as a simple contract debt from such proprietor.

(5) In this section the expression “working days” means days which are reckonable as days of annual leave for the purposes of this Part of this Act.

Notice of time of annual leave.

39. —(1) The proprietor of a shop who is required by this Part of this Act to allow annual leave to a member of the staff of such shop, shall give to such member notice in writing of the day on which such annual leave will begin, and shall so give such notice not less than fourteen days before such day.

(2) A notice given in pursuance of this section to a member of the staff of a shop may be given either by handing such notice to such member or by exhibiting such notice in a prominent position to which such member has access in such shop.

(3) Every proprietor of a shop who is required by this section to give to any member of the staff of such shop such notice as is mentioned in the preceding sub-sections of this section, who fails or neglects to give in accordance with this section such notice to any such member on any occasion on which he is so required so to do shall be guilty of an offence under this section and shall be liable on summary conviction thereof to the penalties mentioned in the Third Schedule to this Act.

Restriction on work by member of the staff of a shop on whole holidays or half-holidays.

40. —(1) It shall not be lawful for a member of the staff of a shop to do for any person for reward any shop work or industrial work—

(a) at any time on any day on which he is allowed under this Act a whole holiday, or

(b) on any day on which he is allowed under this Act a half-holiday, after the time at which such half-holiday commences.

(2) If a member of the staff of a shop acts in contravention of this section such member shall be guilty of an offence under this section.