No. 6/1941:

DEFENCE FORCES (TEMPORARY PROVISIONS) ACT, 1941

ARRANGEMENT OF SECTIONS

1 Definitions and construction.

2 Continuance of the Acts.

3 Application of section 9 of the Defence Forces (Temporary Provisions) Act, 1925, to officers of the Forces.

4 Amendment of section 12 of the No. 2 Act of 1940.

5 Amendment of section 57 of the No. 2 Act of 1940.

6 Relinquishment of commissions by officers.

7 Suspension of right of soldier to be discharged during a period of emergency.

8 Restoration to employment of and other provisions in relation to certain officers.

9 Right of Minister to claim salvage in respect of services of State ships.

10 Salvage claims by commanders and crews of State ships.

11 Short title and collective citation.

AN ACT TO CONTINUE, AMEND AND EXTEND THE DEFENCE FORCES (TEMPORARY PROVISIONS) ACTS, 1923 TO 1940.

[26th March, 1941.]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:—

1.—(1) In this Act—

the expression "the No. 2 Act of 1940" means the Defence Forces (Temporary Provisions) (No. 2) Act, 1940 (No. 11 of 1940);

the expression "the Acts" means the Defence Forces (Temporary Provisions) Acts, 1923 to 1940;

the expression "period of emergency" has the same meaning as in the No. 2 Act of 1940.

(2) The Acts and this Act shall be read and construed together and accordingly every expression and word used in this Act to which a particular meaning is given by the Acts for the purposes of the Acts has in this Act the meaning so given.

2.—The Acts, as amended and extended by this Act, shall continue in force until the 31st day of March, 1942, and shall then expire.

3.— Section 9 (which relates to lunatic soldiers on discharge) of the Defence Forces (Temporary Provisions) Act, 1925 (No. 4 of 1925), shall apply in respect of an officer of the Forces who is retired therefrom upon the grounds of infirmity of mind and who is certified by a registered medical practitioner to be a person of unsound mind and to be a proper person to be detained under care and treatment in like manner as the said section applies to a soldier of the Forces in respect of whom, upon his discharge, it is similarly certified.

4.—The references in sub-section (1) of section 12 (which relates to emergency billeting) of the No. 2 Act of 1940 to occupiers of premises, shall, in the case of premises which are unoccupied, be construed as references to the owners of those premises.

5.—(1) Section 57 (which relates to restoration to employment of reservists called out on permanent service and of soldiers enlisted in the Forces for a period of emergency) of the No. 2 Act of 1940 shall be construed and have effect as if the following new paragraph were inserted in sub-section (1) at the end thereof, that is to say:—

"( g ) an offence under this sub-section in relation to the former employee may be prosecuted by the Minister for Defence or by the former employee."

(2) Sub-section (4) of section 57 of the No. 2 Act of 1940 is hereby amended by the substitution therein of the words "any of the provisions" for the words "of any of the provisions".

6.—(1) Where, during a period of emergency, the Minister directs that any officer of the Reserve of Officers shall not be called or recalled during the said period to permanent service, the President, acting on the advice of the Government, may direct that such officer shall relinquish his commission, and in that case such officer shall relinquish his commission.

(2) Where, either before or after the passing of this Act, a person is appointed during a period of emergency to temporary commissioned rank in the Forces or in the Reserve, the President, acting on the advice of the Government, may at any time direct that such person shall relinquish his commission, and in that case such person shall relinquish his commission.

(3) The relinquishment of his commission by an officer under sub-section (1) or sub-section (2) of this section shall take effect as on and from such date as the President, acting on the advice of the Government, may fix.

7.—(1) Notwithstanding anything contained in the Acts, no soldier of the Forces or man of the Reserve shall be entitled to be discharged during a period of emergency.

(2) This section shall be deemed to have come into force on, and shall have effect as on and from, the 1st day of January, 1941.

8.—(1) Where—

( a ) either—

(i) a person who is a Reserve officer has been before, or is after, the passing of this Act called out on permanent service, or

(ii) a person has been before, or is after, the passing of this Act appointed to temporary commissioned rank, and

( b ) such person (in this sub-section referred to as the former employee) was, at the time he was so called out on permanent service or appointed to temporary commissioned rank (as the case may be), employed by another person (in this sub-section referred to as the former employer) who is neither a Minister of State nor a statutory body responsible to a Minister of State,

the following provisions shall have effect, that is to say:—

( c ) it shall be the duty of the former employer to reinstate the former employee at the termination of his military service in an occupation and under conditions not less favourable to him than those which would have been applicable if he had not been so called out on permanent service or appointed to temporary commissioned rank;

( d ) if the former employer fails to so reinstate the former employee, the former employer shall be guilty of an offence under this sub-section and shall be liable on summary conviction thereof to a fine not exceeding fifty pounds;

( e ) if the former employer is found guilty of such offence, the court by which he is so found guilty may also order him to pay to the former employee such amount (not exceeding six times the sum which would, if he had not so been called out on permanent service or had not been appointed to temporary commissioned rank (as the case may be) and had been in the employment of the former employer at the termination of his military service, have been the monthly remuneration payable to him by the former employer at the time of such termination) as the court thinks fit;

( f ) if the former employer is charged with an offence under this sub-section in relation to the former employee, it shall be a good defence to such charge if the former employer proves—

(i) that the former employee did not before the expiration of one month after the termination of his military service, apply to the former employer for reinstatement, or

(iii) that having been offered reinstatement by the former employer, the former employee failed, without reasonable excuse to present himself for employment at the time and place notified by the former employer, or

(iii) that by reason of a change of circumstances (other than the engagement of some other person to replace the former employee)—

(I) it was not reasonably practicable to reinstate the former employee, or

(II) the reinstatement of the former employee in an occupation and under conditions not less favourable to him than those which would have been applicable to him had he not been so called out on permanent service or appointed to temporary commissioned rank was impracticable and the former employer has offered to reinstate him in the most favourable occupation and under the most favourable conditions reasonably practicable;

( g ) an offence under this sub-section in relation to the former employee may be prosecuted by the Minister for Defence or by the former employee.

(2) For the purposes of securing the fair adjustment of contracts of service or apprenticeship in force between employers and employees when the employees, being Reserve officers, are called out on permanent service or, not being Reserve officers, are appointed to temporary commissioned rank, the Minister for Industry and Commerce may make regulations relieving the parties to such contracts of all or any of their obligations thereunder in respect of the period of military service of such employees, and may also make regulations modifying such contracts by extending the period of service or apprenticeship thereunder by a period not exceeding the said period of military service, and adapting the terms of the contracts in relation to any such extension.

(3) In relation to any person (in this sub-section referred to as the former employee) who, being a Reserve officer, has been called out on permanent service or, not being a Reserve officer, has been appointed to temporary commissioned rank, references in this section to the person by whom the former employee was employed at the time he was so called out on permanent service or appointed to temporary commissioned rank shall, as respect any thing to be done, after the expiration of his military service, be construed as including references to any person for the time being carrying on the undertaking or service in which the former employee was employed when he was so called out on permanent service or appointed to temporary commissioned rank or carrying on any undertaking or service in which it has been amalgamated or in which it was comprised on the date on which the former employee was so called out or appointed to temporary commissioned rank.

(4) If the Minister for Industry and Commerce is satisfied that it is necessary to restrain employers from terminating the employment of their employees by reason of any duties or liabilities which they are or may become liable to perform or discharge as members of the Defence Forces by virtue of the provisions of the Acts or to make provision for the prevention of evasion of the provisions of this section, he may make regulations for those purposes, and such regulations may make provision for the punishment of breaches of the regulations and may in particular apply, with respect to persons found guilty of such breaches, any of the provisions of sub-section (1) of this section relating to persons found guilty of offences under the said sub-section, with or without modifications.

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

(6) Where—

( a ) either—

(i) a person who is a Reserve officer has been before, or is after, the passing of this Act called out on permanent service, or

(ii) a person has been before, or is after, the passing of this Act appointed to temporary commissioned rank, and

( b ) such person (in this sub-section referred to as the former employee) was at the time he was so called out on permanent service or appointed to temporary commissioned rank (as the case may be) employed by a person (in this sub-section referred to as the authority) who is either a Minister of State or a statutory body responsible to a Minister of State,

the following provisions shall have effect, that is to say:—

( c ) the authority shall reinstate the former employee at the termination of his military service in an occupation and under conditions not less favourable to him than those which would have been applicable if he had not been so called out on permanent service or appointed to temporary commissioned rank;

( d ) paragraph (c) of this sub-section shall not apply in respect of the former employee—

(i) if the former employee does not, before the expiration of one month after the termination of his military service, apply to the authority for reinstatement, or

(ii) if, having been offered reinstatement by the authority, the former employee fails, without reasonable cause, to present himself for employment at the time and place notified by the authority, or

(iii) if, by reason of a change of circumstances (other than the engagement of some other person to replace the former employee)—

(I) it is not reasonably practicable to reinstate the former employee, or

(II) the reinstatement of the former employee in an occupation and under conditions not less favourable to him than those which would have been applicable to him had he not been so called out on permanent service or appointed to temporary commissioned rank is impracticable, and the authority offers to reinstate him in the most favourable occupation and under the most favourable conditions reasonably practicable, or

(iv) if the former employee did not, in case he was employed by the authority at the time he was appointed a Reserve officer or appointed to temporary commissioned rank, obtain the consent of the authority or some person acting on behalf of the authority to his acceptance of such appointment.

(7) In this section—

the expression "Reserve officer" means an officer belonging to the Reserve of Officers;

the expression "appointed to temporary commissioned rank" means appointed to temporary commissioned rank in the Forces during a period of emergency;

the expression "temporary officer" means a person appointed to temporary commissioned rank;

the expression "called out on permanent service" means, in relation to a Reserve officer, called out on permanent service in pursuance of section 221 of the Defence Forces (Temporary Provisions) Act, 1923 (No. 30 of 1923);

the expression "termination of his military service" means—

( a ) in relation to a Reserve officer, the date on which he is released from military service next subsequent to his being called out on permanent service,

( b ) in relation to a temporary officer, the date on which he ceases to hold his commission;

the expression "period of military service" means—

( a ) in relation to a Reserve officer, the period commencing on the date on which he is called out on permanent service and ending on the date of the termination of his military service next following such calling out,

( b ) in relation to a temporary officer, the period beginning on the date on which he was appointed to temporary commissioned rank and ending on the date on which he ceases to hold his commission.

(8) Where—

( a ) a person is appointed a Reserve officer or appointed to temporary commissioned rank, and

( b ) such person, having enlisted in the Forces or the Reserve, was, immediately before being so appointed, serving as a soldier in the Forces or as a man of the Reserve,

any references in the preceding sub-sections to the time or date at which he was so appointed shall be construed as references to the time or date at which he so enlisted.

9.—Where salvage services are rendered by any State ship, the Minister shall be entitled to claim salvage on behalf of the State for such services, and shall have the same rights and remedies as if the ship rendering such services were not a State ship.

10.—(1) Where—

( a ) salvage services are rendered by the commander or crew of a State ship, and

( b ) proceedings are instituted, on or after the date of the passing of this Act, by the commander or crew or part of the crew of such State ship for the enforcement of a claim in respect of such salvage services,

the following provisions shall have effect, that is to say:—

(i) the said claim shall not be finally adjudicated upon unless the consent of the Minister (which may be given before or after the institution of the said proceedings) to the prosecution thereof is proved,

(ii) if the said consent is not proved, the said claim shall stand dismissed with costs.

(2) In this section the word "crew" includes officers.

11.—(1) This Act may be cited as the Defence Forces (Temporary Provisions) Act, 1941 .

(2) The Acts and this Act may be cited together as the Defence Forces (Temporary Provisions) Acts, 1923 to 1941.