Amendment No. 78, in the name of Deputy James Tully, was discussed with amendment No. 1.
Private Members' Business. - Social Welfare (Occupational Injuries) Bill, 1965: Committee Stage (Resumed).
SECTION 25.
Amendment No. 78 not moved.
With amendment No. 79, we could, perhaps, take Nos. 81 and 83. They are cognate.
(Cavan): They are. I move amendment No. 79:
In subsection (4), page 21, lines 2 and 3, to delete "overtime being disregarded".
Section 25 proposes to limit the benefits payable to injured workmen in order to ensure, as I understand it, that a workman will not be entitled to receive in compensation a sum greater than that which he was earning per week at the time of the accident. With that sentiment I entirely agree but, in calculating the pre-accident wage of the workman, the Bill disregards overtime. I fail to understand the reason for that. At the present time a considerable portion of a workman's pay packet is comprised of overtime. That is especially so now with the introduction on a fairly widespread scale of the five-day week. Under the legislation we are now amending, overtime was taken into account in calculating the pre-accident average weekly wage. I fail to see any good reason why it should not be taken into account now, especially in relation to this particular section which says, in effect, to the workman: "We are putting a ceiling on the amount of compensation you shall receive and the height of that ceiling is the wage you were earning before the accident". Surely, when speaking of a wage, we should refer to the effective actual wage, the net amount the man brings home each week. We could only arrive, I think, at such a wage by including overtime in the calculation of the pre-accident wage. I should like to hear the Minister's views on this.
Would the Minister express an opinion also on the question as to whether or not he considers it fair that a farm worker, who, as the Minister knows, works for a very low wage, should suffer as a result of this section? A farm worker has a low weekly rate of wage but he has to milk, or perhaps feed cattle, on Saturday afternoon and also on Sunday morning and Sunday evening. The result is his wage of £8 5. 0. per week becomes nearer £10 when the overtime is counted. Does the Minister consider it fair that his compensation should be based on a rate of wage of only £8 5. 0. per week? That is his wage for 50 weeks of the year or, in some cases, for 52 weeks. Consider that particular case. Apart from those in higher paid employment who work a good deal of evening and weekend overtime—Sunday is not worked so much in this country—that is an aspect upon which I should be glad to hear the Minister express an opinion.
Obviously overtime earnings should not be included. Inclusion would lead to inequalities in the case of men in similar employment because one man might, by chance, happen to be earning overtime at the time of his accident, while another may not have any overtime at all at the date of the accident but might have earned considerable overtime prior to the accident. It would not be appropriate to include overtime in an attempt to determine earnings. It would likewise be completely inappropriate to try to assess overtime in assessing what a man could be expected to earn in some particular employment after an accident. I cannot see how that could be done. With regard to the case Deputy Tully mentioned, in which the actual wage is the same for every week of the year, it should be possible to get over that.
This provision excludes it.
If it is actual overtime, and there is no doubt that it is overtime, then it would be out; but in the case Deputy Tully cites, where it is a normal feature, it would be possible to include it as basic wage.
Could the Minister write something into the section to cover that? It seems to be specifically excluded on my interpretation of the section as it stands.
I do not think it is necessarily excluded. If a farmer employs a man at £10 per week, it is no function of the deciding officer under this Bill to decide that the wage is, in fact, the minimum agricultural wage. If the man works six or seven days a week, then it is not a matter to be inquired into by the deciding officer.
Would the Minister not think that the deciding officer would certainly say——
If it is clear that it is overtime, it would not be included, but if he is employed at a wage of £10 per week by the farmer for five days and two half days, then that would be his wage.
(Cavan): I am dealing now principally with amendment No. 79, although I know that we are discussing all three amendments together because the principle is the same. The Minister bases his argument against my amendment mainly on the ground that it would be difficult, if not impossible, to calcualte overtime or to know what a man was earning. In that regard I would suggest to him with the greatest respect that he should have a chat with his colleague, the Minister for Finance, who takes overtime into consideration in assessing pay-as-you-earn income tax. If that can be reasonably ascertained for taxation purposes, we should not have any great difficulty in making the same calculation for the purpose of conferring benefits.
It is being inconsistent to say that the overtime earned by a workman should be subject to taxation and that he should have income tax on it deducted at source and be sent home with his pay packet minus the tax, while the same workman if he meets with an injury, is to be told when it comes to calculating his wages for the purpose of conferring benefits: "Oh, we cannot take your overtime into consideration. That is really not an earning at all." The Minister for Finance and the Minister for Social Welfare should apply a uniform practice here. This section will affect only the lower-paid employees because the higher-paid employees will in any event be entitled to the maximum benefits under the Acts without taking overtime into account. It is, however, the road worker, the unskilled builder's labourer, or the farm worker and other workers of that type in the lower income group who might have to call on their overtime in order to qualify for the maximum benefits under the Bill.
In this year of 1966, employers have become accustomed to keeping records of one sort of another. They have to keep records under the Workmen's Compensation Acts, which we are now replacing, to produce to the insurance companies; they have to keep records and make returns to the inspector of taxes under the PAYE income tax code and they also have to keep records for their own income tax returns. Therefore, whatever other argument the Minister may put up for the purpose of rejecting this amendment, he cannot put up the impossibility or even the difficulty of determining overtime. That can be calculated. If that argument is shot down, there is really no argument left to the Minister because surely overtime is a part of a working man's earnings. As I said before, this does not really affect the highly skilled or well paid tradesman. It does affect the lower-paid categories of workmen who will be deprived of considerable benefits under this Bill if they are not entitled to take into account their overtime which is just as hard earned as any other part of their wages.
I think we are being quite consistent in this. We are not taking overtime into account, on the one hand, and on the other hand, we are not taking short-time into account either. We are providing that the rate of remuneration to be taken into account will be the rate for a full normal working week, even if the person concerned was not in fact working for the full week.
Is that specifically spelled out?
It is, in subsection (4). In fact, amendment No. 79 applies only where a person was being remunerated otherwise than at a weekly rate. That is what paragraph (a) provides. It states:
where a person was being remunerated otherwise than at a weekly rate, the weekly earnings of such person from insurable (occupational injuries) employment at the time of the relevant accident shall be the rate of remuneration which he would earn for a full normal working week in that employment, overtime being disregarded.
I was not arguing that it would be impossible but that it would not be justifiable to take overtime into account, in view of the fact that purely by chance one man might be earning overtime and another might not.
I assume from what the Minister has said that in the assessment of the benefit here, it is only the normal 42-hour, weekly wage which will be taken into account. Am I right in that?
The normal remuneration.
This seems rather unfair because every time employers or Government Ministers talk about workers vis-à-vis their incomes, they always talk about “the take-home packet”. They never talk about the earnings for the normal week.
It is earnings, not wages.
Yes, An overtime bonus is taken into account for the purpose of assessing income tax and as far as qualifications for a medical card are concerned, no worker's eligibility is judged merely on his weekly earnings for a normal working week during normal hours. He is assessed on everything he gets during the week by way of overtime or otherwise. In respect of some employments, not a great deal of them, the weekly wage is more or less a retainer and a substantial amount of the earnings consists of overtime because it is necessary not for the workers but for the employer, that a certain amount of overtime should be worked. It is unfair, particularly in view of the fact that for means tests and the like carried out by the Government and local authorities, all the weekly earnings are taken into account and not just the standard weekly wage for a set number of hours.
The purpose for which overtime is taken into account are, generally speaking, assessments which are made periodically. For instance, for income tax purposes, it is the actual rate of pay at the particular time. This is an assessment which is to be a continuing thing and it is only right that all workers in similar employment should be similarly treated. The only way to do that is to take the normal remuneration for a full week as the basis for deciding the amount of benefit payable.
The only other snag is the one I raised previously with the Minister. He expressed the opinion that no official of his Department would read it in the way I am suggesting it could be read. I should like to know if the Minister can go a little further with it. I am referring to the man who is employed as a farm worker on a 50-hour, 5½ day week. If he is milking cows, he must do so on a Saturday afternoon, which is his halfday, and on Sunday morning and Sunday afternoon. The farmer employs him at the basic rate of £8. 5s. 0d. per week, but, as far as the farmer and the employee are concerned, the rate is £10 which the farmer gives him for the extra hours he works. The farmer must keep within the law and, therefore, he must assure himself that he is paying the correct rate of overtime but as far as the farmer and the worker are concerned, the rate of wages is £10. If the worker meets with an injury in his employment, the rate at which compensation would be assessed according to this section, is the rate he would get for working the normal number of hours. I think the Minister agrees with me that would be an unfair way to assess it. Is there any way in which the Minister can ensure that in such a case the person can be paid compensation assessed at the actual rate he is getting rather than on the rate for his normal hours?
If it is clear that he is being paid overtime, overtime will not be taken into account. It would be advisable to have something in writing in the type of case to which Deputy Tully refers. If it is clearly in writing that this is the wage, that will be the figure used in assessing compensation.
Therefore, since teatime, the Minister has changed his mind about what his officials would do in a case like that. Before tea, the Minister said he could not visualise any official of his Department reading that into it.
Since tea? It was only a minute ago I said that.
The Minister has changed his mind on that—good for him.
I have not changed my mind at all. If it is clear it is overtime, it will not be included, but if it is clear it is his wage, that is the figure that will be used. However, in order to be sure, it would be advisable to put it in writing.
Can the Minister agree with me on this? Under the Wages Board Acts, the basic week for a farm worker for eight months of the year is normally 50 hours. If the farm worker has to work four hours on Saturday and four hours on Sunday for which he will receive an extra 35/-, will the Minister agree with me that if 58 hours is his normal week, it would be a correct interpretation to assess his compensation on the remuneration he gets for 58 hours rather than 50 hours?
I would, of course.
If the Minister is satisfied it can be interpreted that way, I am satisfied.
(Cavan): I was interested to hear the Minister saying that, in his opinion, workmen in receipt of the same basic wage should be paid the same compensation, irrespective of the amount of overtime they do. I spoke of the difference between the Minister's approach to this matter of overtime and the approach of the Minister for Finance. Here we see yet another divergence of opinion between two Ministers. Surely in this day and age we should encourage production, and the Government in various debates here have appealed for greater production. If we are to disregard overtime in calculating the compensation the workmen receive under this Act, I say we are, to a considerable degree, discouraging a workman from doing overtime, because he will not get any benefit from it if he meets with an injury or contracts an industrial disease.
That is running contrary to national policy and national necessity. I may be told that it is only a token discouragement to workmen to do overtime but even a token discouragement should not be enacted in this House. We should do everything we can, within reason to encourage workmen and employers between them to produce more, because, as we are told, until we produce more, the economy cannot be righted. I put that proposition to the Minister for his consideration.
Deputy Fitzpatrick must realize it is a bit far-fetched to suggest that this would be a discouragement to workers in accepting overtime. He should also appreciate that I must have a basis on which to assess what would be the remuneration for a full, normal working week in respect of a person who is working less than a full, normal working week, and it is reasonable to use the same definition both for the man on overtime and the man on short time.
(Cavan): There would be much more overtime than short time.
Not always.
The Minister agrees that if the normal week is more than that recognised, that will be the basis for assessing compensation?
If it is clear the man is paid a wage in respect of a week which is no longer than the minimum agreed week, then that would be the basis of assessment.
Amendment, by leave, withdrawn.
Amendments Nos. 80 to 84, inclusive, not moved.
Question proposed: "That section 25 stand part of the Bill".
(Cavan): This section gives me an opportunity to mention two amendments which I did not move because they took me by surprise and I said I would put them down again on the Report stage. This section imposes a ceiling on the amount of benefit or compensation which may be paid to workmen under the Bill. It provides, rightly, as I have said before, that it shall not exceed his wages, but in subsection (3) of this section I find an extraordinary figure. It is stated that a person under the age of 18 shall not be paid compensation at a figure below 15/6d a week. Is it accepted as a proposition that anybody in this country is being paid a wage of 15/6d per week? If it is, it is a retrograde approach and brings me back to the old Workmen's Compensation Act of 1934 in which there is reference to 75 per cent of the weekly wages down to a certain figure, below 16/-.
The sum of 16/- was mentioned as a possible or probable wage in 1934. Here in this subsection we have 15/6 being countenanced as a wage for a young person in 1966 and 23/- as a possible wage for an adult in the same year of grace. That is altogether out of keeping with modern thinking. I had proposed to put down 40/- for 15/6 and 60/- for 23/-. The writing into the Bill of antiquated figures like that is a mistake. If anybody is being paid 15/6 for a normal week on a full-time basis, even if under 17 years of age, it is time something were done about it.
Some apprentices are down to 10/- a week.
(Cavan): That is bad enough, but there may be something to be said for apprentices. However, the measure as it stands is not confined to apprentices. In any other case, you must pre-suppose the person is over 18 years of age. Something more should be written into this section to show that it applies only to apprentices.
It is that type of person, apprentices and certain married women, who are covered. With regard to anybody whose rate of earning would be 23/-, there is no question of suggesting he is existing on the 23/-. The idea is that these minimum payments should correspond to the minimum disablement payments under section 9, where loss of faculty is assessed at 20 per cent. The aim is to ensure that this will not in any case be lower than that. The only people you can reasonably imagine concerned would be apprentices, some of whom, as Deputy Fitzpatrick said, may not be receiving any remuneration at all. The intention is to provide that, even in cases such as that, they will get some benefit and that it cannot be less than the minimum amount of disablement benefit when the loss of faculty is 20 per cent.
(Cavan): In regard to the solicitors' apprentices about whom we were talking the last day, I think they are actually exempt under an intermittent employment order made by the Minister or one of his predecessors some time ago from paying social welfare contributions. I ascertained that since the last day.
The Minister said they were not.
(Cavan): I think he will find they are exempt under an intermittent employment order if they do not work more than 18 hours a week.
I admit solicitors can get away with a lot of things.
(Cavan): I was told professional apprentices— accountancy apprentices, for example —were subject to social welfare contributions under the Acts as they stand. I have been told since that under an intermittent employment order, where they do not work more than a total of 18 hours a week, they are not liable.
Not if they do not work more than 18 hours a week.
What apprentice does not work more than 18 hours a week?
(Cavan): Accountancy apprentices, for example. Do I understand the Minister to say on this section that these people who are not paid anything but in respect of whom the employer will have to pay 2/1 per week, if they are injured, will get the sum of 15/6 per week?
Yes.
They would also be covered for medical care?
They would.
Question put and agreed to.
SECTION 26.
Amendment No. 85 not moved.
Question proposed: "That section 26 stand part of the Bill."
This is the section the terms of which the Minister and I were discussing earlier this evening when the Minister gave as his reason for certain charges that the payment of the cost of medical care was included. I just want to clear my mind on this in case I am mistaken. Is it not true that, if a person is injured, is drawing benefit under this Bill and is entitled to medical treatment under the existing Health Acts or any future Health Acts, that treatment will be paid for in the normal way as it is at present and the only thing the Bill provides for is, for instance, if there is a difference of 10/-a day in the hospital charge, which he would normally be required to pay, that will be covered under this Bill? That seems to be the only change being made.
There is one other thing I would like to have cleared up. With regard to mental treatment, there is a lot of confusion at present because people who are normally entitled to free medical treatment find that if mental illness is involved, they are required to pay. In particular, people with certain types of social welfare benefits have to surrender them to the mental hospitals. If that is so, how will they be affected under this Bill when it becomes law? Would the Minister care to make a comment on that aspect?
Deputy Tully is right. Medical care will be paid for out of the Occupational Injuries Fund in so far as it is not covered under the Health Acts. The estimated cost of it is £150,000 per year. We will be coming to that later when discussing the amount of the contributions. If a person is entitled to treatment under the Health Acts, then the cost to be met from the Fund would be only whatever the actual cost will be over and above that. That would apply to the Mental Treatment Act as well.
The existing Health Acts do not apply to mental treatment payments?
If they have to get mental treatment arising out of occupational injuries, the Fund will have to pay it all. Of course, it will also have to pay general practitioner treatment, if the person concerned is not entitled to it under the Health Acts.
Domiciliary treatment is covered?
Yes.
Question put and agreed to.
SECTION 27.
Amendment No. 86 not moved.
(Cavan): I move amendment No. 87:
To delete subsection (2).
This section provides for the giving of notice by the insured workman to his employer or other prescribed persons. That is provided for in subsection (1). Subsection (2) provides that failure to give such notice without good cause may entail disqualification of the insured person from benefit for such period as may be determined in accordance with the regulations which the Minister proposes to make. In the Workmen's Compensation Acts, we had the provision that notice had to be given and the same provision led to a lot of litigation and a lot of argument and trouble and very often ended up, when the courts could not see their way to get around the section, by the workman being deprived of benefit. In administering this particular provision of the Workmen's Compensation Acts, the courts did so with the greatest sympathy and leaned over backwards in an effort to get around it so as to give the workman his compensation. I hope that the same approach will prevail in the Department when this Bill becomes an Act.
In subsection (1) it is stated that the notice is to be given to the insured person's employer or other prescribed person. I should like to know what the Minister has in mind there: I should like to know who the other prescribed person is. Does he mean that there might be an obligation on the workman to report it to the Department?
No, to the foreman or to someone in authority.
(Cavan): That is really on subsection (1). My amendment is to delete subsection (2) which would disqualify the workman for failure to give notice. I put down this amendment to give me an opportunity of discussing the matter and getting some information from the Minister. “Without good cause”: these are a few little words which could lead to a lot of argument and a lot of discussion. The courts always approach this from the workman's point of view.
I take it that if the foreman was there and saw the accident happen, it would not be necessary to make any report or if the employer was there when the accident happened, and knew that the accident happened, there would not be any necessity to report it any further: certainly there was not, under the old law. I should like an assurance from the Minister that these regulations will be drafted in such a way as to ensure that the insured person will be penalised only if his failure to report the accident prejudices the employer or, more correctly, prejudices the Department of Social Welfare or, more correctly, the fund: in other words, if it deprives the Department of an opportunity of having the workman examined by a doctor to see if he sustained the injury or if there was incapacity. I should be quite agreeable to this provision to protect the fund against the workman who did not report the accident for a month or six months and then came in when he was better and thought he should make a claim. That would be a ridiculous proposition. I should like an assurance from the Minister that he will seek to disqualify the workman only for failing to give notice if the failure to do so prejudices the fund.
In fact, what is intended here is only to suspend payment until such time as the regulation has been complied with. It is considered necessary to have subsection (1) complied with. If the workman fails to do that, this gives us power to make no payment in respect of the period of failure to comply with the regulations under subsection (1) until such time as they have been complied with. It would then be the intention— normally, at any rate—to pay the arrears that might have accumulated.
The Minister already has a section under his Department covering ordinary disability benefit which has caused untold hardship, particularly to people living alone. Even if they are taken to hospital and have been there for a considerable period and do not make a claim although there is no doubt at all about the certification of their illness, when they return home and make a claim the Minister's Department repeatedly refuse to pay benefit in such cases. That is simply a matter of misinterpretation of the intention of the Act because the people who were ill never had any intention of doing anything wrong. They are insured. They are entitled to their benefit. Because they were so ill that they could not claim the benefit, they are disqualified by the Department and they do not get their payment.
In this case, it is even more serious. Consider the position of somebody who meets with an accident and is taken to hospital and is seriously ill in hospital. If he has nobody belonging to him then no report may be made. What the Minister is saying in subsection (2) is that, in that case, his Department intend to suspend benefit until the report is subsequently made, if it is made. That is most unfair. The insurance which has been paid covers them from the day they become ill. It is simply a question of the interpretation being given by the Minister's Department in a case like that.
Consider the case of somebody who becomes injured in his employment and who subsequently dies leaving maybe an old mother. I think it would hardly be worth the mother's while from the point of view of what the Minister promises her, 24/- a week. However, take a wife as an example. They are so distraught that they do not report it. It may be many weeks before the matter is put in order. The Minister tells us that, in cases like that, he feels it is right that no money should be paid until the report is formally made.
We are getting too tied up with this question of report. The Department of Social Welfare was set up to look after people who are ill, amongst others, and in this case to look after people who are suffering from injury. The first responsibility of the Department is to see to it that they will get something which will allow them to live or, if they die, that their dependants will get something to rehabilitate themselves until they are able to get some other means of livelihood.
I think this subsection is an entirely unnecessary one. I suggest that the Minister could very well accept Deputy Fitzpatrick's suggestion and take it out of the measure or, if he wants to keep it in, to say that if the report is not made within a month, six weeks or two months, a certain procedure will be followed, but he should specify some reasonable period. He might also have a look at the disability benefit section with a view to preventing an abuse which is creeping into his Department in this connection. I have great respect for the Minister and for his officials and for the way in which they do their work but this is one thing which is being referred to far too often now, with the result that unfortunate people are suffering hardship. I suggest that if this section is left in the measure we shall have a recurrence of it for the next 20 years, at least.
The phrase "in a case of failure without good cause" is there and if the workman was not in a fit condition to report it, then that would be good cause for not doing so. But, in the case of the widow of a workman who is insured, surely the least that could be expected is that she would claim the benefit that would be due to her. Normally, she would have to do that at the earliest opportunity herself.
Would the Minister be under the impression that every wife is going around carrying a copy of this section of the Bill in her pocket in case her husband might be killed?
No, but I think everybody realises that in order to get insurance benefit, one must apply for it.
(Cavan): As I understand it, this section does not deal with the claiming of benefit.
It deals with the reporting of an accident.
(Cavan): It does not deal with reporting an accident to the Department of Social Welfare. It merely says that the insured person must report the accident to his employer or some person in the employer's employment, such as the foreman. I take it, then, that the only anxiety of the Department will be to bring the accident to the notice of the employer?
No, to establish that an occupational injury took place.
(Cavan): Who will report to the Department of Social Welfare?
The employer.
The employer?
(Cavan): The employer will report, of course.
The injured workman is required to report to the employer.
And if the employer does not report the accident to the Department?
The claim is made.
By whom?
The employer has to have a report.
(Cavan): Is there any provision in the Bill obliging the employer to report to the Department?
There is not.
Section 28.
(Cavan): Exactly. That deals with the reporting of accidents by employers. Therefore, I say that what the Minister is about here is to ensure that the employer will know of the accident so that he can report it to the Department of Social Welfare and I take it that the Minister in drafting his regulations will ensure that where it is obvious that the employer knows about the accident there is no further obligation on the employee to report it to him. For example, suppose a man falls off a scaffolding and breaks his leg and the employer takes him in his car to hospital.
The accident would have been reported to him already.
(Cavan): Is that not enough? He was there and, as we say under workmen's compensation, he knew it at the time. Further, if a man is dead and buried and the employer was at the funeral and at the inquest, he knows he is dead.
What we want to ensure is that the employer knows so that he will be in a position to report it to us.
(Cavan): I take it that in drafting the regulations the Minister will bear that in mind?
Yes.
(Cavan): And that an insured person will be penalised only if through his failure to report the accident to his employer, his employer did not know about it?
That is right.
(Cavan): I am with the Minister, then.
The only thing about it that I am still not happy about is this question of report. I know that section 28 requires the employer to report to the Department but take the case of John Smith employed by Miss McGuinness who is in America and he runs her farm. If he meets with an accident and she has no relatives there but deals directly with John Smith, who reports the case to the Department or to whom does the Department apply? That is one case that could happen.
If he is insurable, there will be nobody to do it but himself.
Supposing he is unable to do it if he is in hospital?
Then that is good cause.
It was not considered good cause by the Department when it dealt with disability benefit.
It is.
I can only take the Department's previous record on those things. As recently as two months ago, I had a case where somebody went to hospital seriously ill and the Department refused to accept that as good cause. If they would not do it in a disability benefit case, there is no guarantee that they will do it where an accident is involved.
Amendment, by leave, withdrawn.
Section 27 agreed to.
SECTION 28.
Amendment No. 88, in the name of Deputy Tully, was discussed with amendment No. 21.
Amendment No. 88 not moved.
Section 28 agreed to.
SECTION 29.
Amendments Nos. 89, 90, 91 and 92, in the name of Deputy Tully, were discussed with amendment No. 1.
Amendments Nos. 89, 90, 91 and 92 not moved.
Section 29 agreed to.
NEW SECTION.
(Cavan): I move amendment No. 93:
Before section 30 to insert a new section as follows:
"(1) Notwithstanding anything contained in this Act or the Principal Act, an appeal shall lie to an Appeal Tribunal in respect of entitlement to, and the amount of, benefit under sections 7, 8, 9, 16, 17, 18, 20, 21, 23 and 29 of this Act.
(2) The Appeal Tribunal shall consist of such judge of the Circuit Court or of the High Court as the Chief Justice may nominate and, at the option of the person bringing the appeal two additional persons, one to be drawn from a panel of persons nominated by the Irish Congress of Trade Unions and one from a panel of persons nominated by such bodies of employers as the Minister by order may select.
(3) Appeals under subsection (2) of this section shall be heard in chambers."
I consider this amendment to be the most important amendment which has been put down to this Bill, not because I put it down but because it is an amendment which seeks to give the workman who is injured in an accident, who applies for benefit under this Bill and who is refused, an appeal outside Arus Mhic Dhiarmada. At the beginning of the Second Reading debate on this Bill, I stated that there were certain good sections in this Bill with which I agreed, but that I was very fearful that the measure placed the workman at the mercy of the Minister and the Minister's advisers.
There is no appeal under this Bill available to a workman other than an appeal to an anonymous appeals officer who hears the case behind closed doors, who does not give his decision there and then, who conveys his decision, perhaps weeks afterwards to the workman through the post, without giving any reasons for it. I say that that is a state of affairs that workmen in this country will live to regret.
I want to make it perfectly clear that in my approach to this Bill and in the approach of this Party to this Bill, we are not seeking to hold on to the old system of workmen's compensation for the sake of holding on to vested interests or for the sake of making money for lawyers, to put it bluntly. So far as I am concerned, so far as the Party is concerned, we are completely agreeable to handing workmen's compensation over to the Department of Social Welfare subject only to the right of the workman who might have a dispute about very substantial benefits—several pounds a week for life—that sort of money—to appeal to an independent tribunal.
Since 1934, the workmen's compensation code in this country was operated by the circuit court bench. Probably before my time the circuit judge who operated it was known as an arbitrator and later still the applicant went before him as the circuit judge. Practically without exception—there is one exception I can think of but, naturally, I shall not go into names— the Circuit Court judges were fearful that they might do the workmen an injustice, and they approached it on the basis that if they were going to make a mistake it was better to make it in favour of the unfortunate workman than against him.
By and large, subject to certain technical defences over which the bench had no control, the workmen got the most out of the workmen's compensation code. If there was any real doubt and a judge felt that in strict law he might have to come down against the workman because of the oath he had taken, and because of what was written into the workmen's compensation code, he very often adjourned the case and said: "Gentlemen, I think you should get together about this," and there was a lump sum settlement. It cannot be contradicted that that was the approach of the Circuit Court bench to workmen's compensation and injured workmen. I repeat that under this measure this will all be swept away and the only appeal will lie to an anonymous official in the Department of Social Welfare. I do not know how they are recruited, or where they are recruited from, but I imagine that they are sometimes recruited from within the Department. This reminds me of an income tax appeal being decided by an ex-inspector of taxes of 25 years' standing. That is a fact. I know of income tax appeals that have been decided throughout the country by a special commissioner, and the special commissioner was a promoted inspector of taxes——
An expert.
(Cavan):——a man who had come to believe that a taxpayer could not tell the truth if he tried, a man who had developed that sort of mentality, not through his own fault but because he was indoctrinated, shall we say, in that way, and because he had grown up in the Department.
Brainwashed.
(Cavan): He was brainwashed. That is a better word. I venture to suggest that the officials who will be acting as the supreme appeal tribunal in these cases will not have any judicial education and will have come to regard workmen as a malingering lot, as people who are swinging the lead, people who are trying to get something for nothing. Of course, they will allow cases, but if there is any doubt, I am very fearful that they will come down against the workman.
I gave an example in this House on another amendment and I think it is worth repeating here because it illustrates the point I am making. I know a man who was earning £14 or £15 a week, I suppose, and he had a wife and seven children to support. He met with a back injury—I know all back injuries are suspect—and he could not work. Even with the benefits he was getting, he was losing a considerable amount of money. Eventually he was told by the Department that he was fit to work, and to go back to work, notwithstanding the fact that he had been certified by the regional orthopaedic surgeon for that area as unfit for work, and notwithstanding the fact that the regional orthopaedic surgeon was trying to reserve a bed for him in the orthopaedic hospital, and was waiting until a bed was available to get him to come in and operate on him.
That man had a wife and seven children and he was destitute. A local county councillor had to take out his car and bring that man's wife to the home assistance officer from whom she received £3. That may be an extreme case, but if that man were getting workmen's compensation under an order of the circuit court, it could not have been cut off until a summons to review was brought, and until the insurance company's doctor went into the witness box and said that man was fit to work, and subjected himself to cross-examination on his evidence, and until the medical evidence available on behalf of the workman was heard, listened to, and acted upon. That is the sort of thing of which I am afraid.
The Minister admitted on Second Reading that there is a well-known expression in the Department that "the fund must be protected from fraud." It is very easy to develop a fund complex, a fund bias, an anti-workman bias. The object of this amendment is to afford to workmen an appeal outside the Department of Social Welfare. I want to tell the Minister now that he can make this appeal as informal and inexpensive as he likes. Speaking for myself, I would even accept a district justice in lieu of the Circuit Court judge or the High Court judge mentioned in this amendment. The right to unemployment benefit or disability benefit used to be decided by a referee, I think he was called, who came from the principal employment exchange in the area, and he was assisted by a representative of the workers and a representative of the employers. I do not know whether that still prevails or whether it has been done away with. I think it has been done away with.
Could anything be less formal than the amendment? Could anything be less calculated to encourage litigation? I have said that the Minister can make this tribunal as informal as he likes. He can have it heard in chambers. Speaking for myself, and I can speak for my Party as well, he can even restrict the right of audience before that tribunal so long as it is a body before which the workman can go, armed with some assistance, whether it be his trade union representative or his solicitor, and lay his case before the tribunal and get a decision and the reasons for that decision. The workman can be legally represented or he need not be.
We know what the law is at the moment. The workman has the right to go there and have his case heard. It is only just that he should have the right to have his case heard by somebody who is not part and parcel of the fund, who is not part and parcel of the bank giving him the money. I do not say that in any offensive way. I know from experience that officials of insurance companies can very often develop the sort of mentality that nobody should get any damages. Would the amount of damages paid in the old days or the amount of compensation paid then be tolerated by an insurance official or be arrived at by somebody appointed by the insurance company that would have to pay the benefit? Would they be tolerated by somebody who was responsible to the insurance company paying the benefit?
This goes to the whole root of the measure now before us. I do not mind if I am told this is what happens in Great Britain and Northern Ireland. I am not influenced by that, nor is it necessary for my purpose to make the case that the appeals officers might act dishonestly or unjustly. I am not making any of these points. I make only the point that they will become biased in favour of the Department and that when they have any difficulty they will come down on the side of the Department.
This Bill is an extension of the Social Welfare Acts and it is to be construed as one with the Principal Act. Under the existing Acts, decisions are made by deciding officers and appeals go to appeals officers. We are proposing to extend those provisions to occupational injuries. The same thing was done when the old age contributory pension scheme was introduced—the existing arrangements in respect of decisions and appeals were extended. I think it is relevant to say here that the minority of the commission were in favour of this type of machinery. After all, among those who signed the minority report were three members of the commission who could reasonably be regarded as representing the workers' viewpoint specifically. In paragraph 17 of the minority report of the commission, it is stated that administration would be by the same machinery as in the case of other social welfare benefits—by deciding officers and appeals officers. This system is flexible, the report says, and has worked to the complete satisfaction of the insured population since it was introduced in 1952. The minority report pointed out that the vast majority of disputes hinge on medical matters and under the existing system these matters have to be decided by judges, themselves unqualified in such matters, who have to depend on the views of the experts acting on the side of the parties in dispute and there are often conflicts.
It is clear, therefore, that this system has worked well. Under the Principal Act, provision is made in subparagraph (ii) of section 44 for the appointment by the Minister, if it appears to be desirable, of assessors to sit with an appeals officer. It is not necessary for me to quote the section but the provision is there and this procedure is followed in relation to claims for unemployment benefit and could, if considered desirable, be applied to occupational injury benefits. It appears to me that occupational injury benefit claims are more analogous to disability benefits where assessors are not necessary because, as the minority report commented, it is mainly medical differences that have to be decided on.
Under this Bill it is not expected there will be any difficulty about admissibility of claims but if, after some experience of the operation of the Bill, this appears to be necessary, provision for the appointment of assessors is already there. Deputy Fitzpatrick does not seem to appreciate that this question of compensation for occupational injuries will be an entirely different matter after the Bill has passed. It becomes part of the social insurance system, the only difference between occupational injuries and other social insurance benefits being that in the case of occupational injuries there is no contribution by the State or by the employee. I have no doubt Deputy Fitzpatrick can remember many an exhilarating legal battle on the question of whether a person was entitled to workmen's compensation. There will be no need for these legal contests in the future——
(Cavan): They will simply not be paid and that will be the end of it.
——because the interpretation of the phrase "arising out of and in the course of his employment" has been clarified in accordance with the recommendations of the Commission so that the award of compensation for occupational injuries will no longer depend on the relative degrees of skill, energy and, indeed, on the experience of the workmen's compensation code on the part of the legal practitioners employed by opposing interests—the workman and the employer. These two opposing interests are there at the moment: the workman who is injured and the employer who will be liable for any compensation awarded and is usually but not always covered by insurance for his liability. If the employer is in one of the industries to which insurance is refused, then obviously the success of the workman's claim will be a very serious matter for him and the employer will be compelled by economic necessity to oppose the claim as effectively as possible. If it is a matter for an insurance company, of course the profitability of the insurance company's operations depends on minimising the volume of successful claims.
These two conflicting interests will not be there under this Bill so that there will no longer, in my opinion and in the opinion of the workers' representatives on the Commission, be any need for a judge to sit as umpire in a contest between two legal practitioners or two teams of legal practitioners. Neither is there any need for me to depress the amount of premium income that will be returned in the form of benefits by the necessity to finance this type of procedure. Deciding officers and appeals officers will have no interest in the failure of a workman's claim. I think it is completely unrealistic and unfair for Deputy Fitzpatrick to impute the motives he did impute—I am quite sure he did not intend any offence—to those officers.
(Cavan): I did not impute any motives other than human nature.
He compared them with officials of insurance companies whose jobs depend on their companies remaining in business and making a profit. The job of deciding officers and appeals officers will be a purely objective one—to administer the scheme and authorise the payment of benefit when the injury is within the terms of the Act.
Like tax officers.
The workers' representatives are satisfied that they have been objective in the past and there is no reason to believe they will not be objective in the future. It is entirely unjust to suggest they will have any ignoble motives in administering the scheme and, even if they have, normally the question to be decided will be whether the claimant will qualify for benefit from the occupational injuries fund or from the ordinary social insurance fund. If the question that is to operate in the minds of deciding officers and appeals officers is to save the Exchequer at all costs, then it appears that if they are that type of person they will be more likely to opt for the occupational injuries fund rather than the social insurance fund. In fact these people will have no interest one way or the other. They will be there purely to decide a matter of fact and the workers' representatives were in favour of this procedure. My concern is to ensure that the maximum possible amount of the premium income will be returned in the form of benefits to the people who are insured.
I am aware that our representatives on the commission supported the system which is included in the Bill. Possibly they may not have had in mind some of the cases which a number of us are only too well aware of. I refer particularly to the type of case where somebody meets with an accident and applies for workmen's compensation. The person is either refused immediately or is paid for a number of weeks and the payment is then terminated, in which case he can apply to the Department of Social Welfare and get disability benefit if he is declared unfit for work and the Department are satisfied that that is the case. It is not possible, in that way, to do what could be done some years ago, that is, to starve them into going back to work. If the person had no income from any source, he had to go back to work.
The Department might say that the person had an income, that money had been offered. If the workmen's compensation case succeeded, that was all right. We have got the other case where somebody is drawing workmen's compensation and gets a supplementary amount from the Department of Social Welfare. It may be a couple of shillings or a couple of pounds. The Department decide that the person is fit for work. The legal men here will agree with me when I say that many a very safe workmen's compensation case was blown skyhigh by the fact that the Department were paying a few shillings and in some cases paying nothing at all and declared that the person was fit for work. The result of this was that the case for workmen's compensation was seriously weakened. The situation is bad enough in a case like that at the present time.
Consider what will happen now. If somebody applies for compensation under the new Bill and has been drawing it for a period and the Department decides that the person is no longer unfit for work, they cannot go back to the Department of Social Welfare, to the disability benefit section and say: "You can pay me now until such time as I get this matter cleared up." Another section of the Department have declared the person is not unfit for work. In that case I think our people on the commission must have completely overlooked that in that case the persons concerned can find themselves back to the bad old days and whether they are fit or not, they are starved into resuming work. That situation can arise. The Minister can say the ordinary right of appeal to the Department of Social Welfare operates.
To an appeals officer.
In many cases the appeals officers have made a mistake. I have today instanced to the Minister a couple of cases where that happened. Now, if the appeals officer makes a mistake, it can be literally months before the second appeal is heard. The Minister knows that and he knows of cases where I asked him here in this House why second appeals were not heard in a period of over six months. It means it will be a very considerable time before the matter can be investigated unless it is the intention to increase substantially the number of appeals officers dealing with these cases.
I should not like to see the compensation fund being put in such a way that in almost every case where somebody was slightly dissatisfied, he could go to the High Court and put the fund to expense. It would be a mistake, although some people might agree with that. It would not be very long until the subscription would have to go up or the amount paid out would be reduced. It would have to be one or the other. At the same time, there are not enough safeguards in the fund, as at present constituted, for the insured worker. There should be some specific way to deal with the question of an appeal. Perhaps the Minister might, in the light of the experience which he has had of the operation of this Act in Britain and Northern Ireland, say whether or not the system there is similar to what he is proposing. If it is not, can he consider that this would be improved? The one thing we must consider, in accepting this Bill, is that some person who is unable to work, due to illness or due to injury, is not starved into going back to work. There is a grave danger that that may happen and, if it happens in one or two cases in the year, it will be a very serious reflection on the Bill.
I think Deputy Tully has most successfully demolished any argument the Minister has introduced here by referring to the remarks in the minority report. The poor workman denied occupational benefit or disability benefit as a consequence of being denied the other one because of the findings of one side of the Department, has no option now but to go back to work. He has no independent tribunal to consider his problem; he has no evidence which can be produced which may be contrary to that of the Department so that it can be used to determine whether or not he is to get benefit. If I understand the Minister correctly when he speaks of the system of benefit referees or appeals officers, such people receive only the Departmental medical report and the advice, the opinions, of the injured person's own doctors or surgeons may not be available to the appeals officer.
They are, of course.
Does the Minister mean to tell me then that any injured person can arrange for his surgeon or medical adviser to attend before an appeals officer to be heard and will be heard?
If it is considered necessary, they will be heard. We shall not conduct this like court proceedings. I am not in court. I know Deputy Ryan has only come in from the court but he is out of it now.
Through the Chair, the Minister should not be addressing personal remarks of that kind. The Minister's remarks are entirely wrong. As the Minister well knows, I addressed the House for half an hour earlier to-day on the housing problem. There is nothing a Deputy detests more than workmen's compensation proceedings and any lawyer with a reasonable practice does as well: from a monetary point of view, they are worthless altogether. But it is extremely annoying when people are making objective contributions in this House to have a Minister for Social Welfare, or any of his colleagues, personally attacking them. It would be bad enough if the attacks were justified; it is unpardonable when they are not, but just recklessly made without any justification whatever. Perhaps it is an indication of the type of mind an unfortunate man will find himself up against—the almighty mind of an almighty State, be it a Minister, an appeals officer or an assessor.
It may well be that those who put in those paragraphs in the minority report thought there was a safety valve in a Parliamentary question to protect the person who had been wrongfully deprived of a benefit. But any person up against the almighty State knows that the process of a Parliamentary question is an almost worthless instrument and knows too all the almighty administration of secrecy which the State can build around itself from the prying eyes of the citizen.
Had we an Ombudsman we might not need to spell out in this amendment, which Deputy T.J. Fitzpatrick (Cavan) has put down for the Fine Gael Party, the protection which is so necessary to build in here for the individual. That is all we are seeking here. An appeals tribunal would quite clearly be a very cheap way of administering justice, a more easy and simple way of providing some safeguard for the individual; its cost would be negligible and, compared with the benefit which it would confer, it is entirely justifiable. Even if this appeals tribunal were never to reverse a decision made administratively, it would still be worthwhile because it would not lead to that inevitable sense of frustration which is bound to exist unless an independent tribunal is provided. We are well aware of several cases of conflict at present between the State on the one hand and the individual on the other. It is a very frequent occurrence for differences of opinion to arise between applicants for disability benefit and the Department. It is very seldom that these are resolved to the satisfaction of the disabled person by any of the systems of appeal to which the Minister referred.
I am aware of a case—and I am sure many Deputies of this House are aware of identical cases—in which a lady was in receipt of disability benefit, whose medical condition was certified by her own medical doctor not to have changed but, notwithstanding that, she was determined, by the Departmental referee, as being again able to work, as a result of which she had the disability benefit paid to her discontinued. After four or five months of persistent representations by herself and by a member of this House on her behalf and of the matter being processed through the Department until this final stage of appeal, she was declared to be disabled and was again given disability benefit but up to this day she has never been paid disability benefit in respect of the period during which some junior official in the administration held that she was fit. She was a person who, fortunately, was married and had a husband to support her, at a certain level anyway, while she was denied benefit by the Department. She was not forced, like the person to whom Deputy James Tully referred, to go back to work simply to avoid death from destitution. She had somebody to maintain her but, had she not, she would have had to accept the findings of the official and resume work, although her own medical adviser said she was not fit to do so.
All this dissatisfaction, all this worry is built into this Bill. What we in Fine Gael are seeking to do here is to establish an outside tribunal so that that kind of situation will not be allowed to develop. I am not suggesting that any applicant for benefit at present will be satisfied with the findings of the circuit court or, indeed, of the Supreme Court. Most parties to litigation can disagree from time to time with the ultimate findings but I suggest that there is less chance of frustration with an independent tribunal than you have at present where the only tribunal is a Departmental one, no matter how independent or how noble it is alleged to be by the Minister.
We are also aware of people being denied unemployment assistance from time to time as a result of ministerial Orders which go out drawing attention to the large number of people who are drawing unemployment assistance and requiring that steps be taken to reduce the number, in order to reduce the claims upon the unemployment benefit fund. Here you have an administrative decision; a Departmental decision to reduce the call; to reduce expenditure and this is translated into cutting off unemployed people from assistance willy-nilly and telling them to go into the labour exchange to prove that they have made application for unemployment assistance.
Now the Minister resents Deputy Fitzpatrick's remark that people associated with the administration of State funds can be brainwashed. He resents the suggestion that they can be occupationally influenced. To suggest that is to state simply that an ordinary human experience, one's loyalty to one's work, one's loyalty to the institution one serves, is bound to govern one's approach to the claims against that institution. That is not to say that a person would not conscientiously endeavour to give as much as morally seems justifiable. That will certainly happen, but one's standards, one's capacity to assess, one's objective judgment will certainly be influenced by one's occupation and by the various influences that have come to bear on one's outlook over the years. All the people the Minister has in mind for the administration of this scheme are such people and it is no reflection on them to say that, like all other human beings, they will be influenced by their own activities.
The Minister, in a most unworthy remark, suggested earlier that my comments in this matter were guided only by the question of personal profit arising out of my profession. He did not appear to consider that that was in any way a grossly unworthy remark though it was addressed to a person in his personal capacity, as you are aware, Sir; it was unjustified, but, at the same time, it would be fair for the Minister to say that my approach, like the approach of any other lawyer in the House, might be influenced by my own experience. But it would not be simply a question of personal profit but a constant association with asserting the rights of individuals against insurance companies, against the State, against wrongdoers, and of defending the individual against the State in various sectors, civil and criminal, and of realising how the rights of individuals can be trampled upon, and of seeing attitudes of the State, approaches of the State, reversed by men in an independent judicial seat. I am not ashamed of my reasonably limited experience in that field. On the contrary, I am glad of it.
I and other lawyers in this House have some understanding of the way in which the rights of individuals can be trampled upon. That is why we are extremely anxious to see an independent tribunal administer the funds. I personally have no objection if a rule is made that lawyers be not engaged to represent anybody before this tribunal but I think it would be unfair to the individual, should he wish to engage a competent person to argue the case on his behalf. It might be preferable, and they might desire it, to have their trade union representative to argue the case, but the trade union concerned might wish to engage lawyers to do so, and they should be free to do so. There is no reason why they should be denied the right because departmentally it would be inconvenient to be found wrong. That is really what the Minister is afraid might happen if there were an independent tribunal.
The whole scheme of labour exchanges was brought in many years ago in order to provide a supply of job opportunities and of people to avail of those opportunities. What has happened? The labour exchange has become a strictly accounting institution concerned only with making sure that nobody gets unemployment benefit or unemployment assistance. That is the principal and primary function of our labour exchange today and that has been underlined in the NIEC Report and in the report on manpower policy. It has been pointed out how an institution brought in for a purpose has developed over the years a narrow outlook and become simply a section of the accountant's department of the Department of Social Welfare. The same thing will happen here unless there is an independent tribunal to ensure that the rights of the individual are sacrosanct and will be looked to before any consideration of the solvency or otherwise of the fund.
At present the employer who reengages an employee who suffered injury in the course of his occupation embarks upon a hazardous activity if he dismisses the worker at a subsequent date because the worker is likely to resume his claim against the employer in respect of workmen's compensation. The result is that any disabled person or any person injured in the course of his work becomes almost a permanent employee. He can get into a more privileged position than he had before he was injured. In future, however, there will not be that fear on the employer if he dismisses an injured workman because there will be no claim against him. There will be no insurance company obliging him to take back the worker in order to protect the company and a situation may well develop in which the worker is injured; he receives workmen's compensation; he is taken back by his employer; he is dismissed and the Department decides then that he is not unfit. What redress has the worker then? He has a case. He cannot go to an independent tribunal. This kind of case is part and parcel of the industrial and commercial life of the country and, unless you provide an independent tribunal, the worker will be at the mercy of the employer in a way in which he is not at the present time. Some protection could be given for the individual if you had an outside tribunal.
The Minister said that the machinery at present of a deciding officer and an appeals officer is flexible. I do not know whether the Minister's opinion of flexibility will be shared by people who have been unsuccessful in bringing their appeals before this gentleman but one's experience leads one to believe that rigidity is the significant element of these institutions and not flexibility.
I missed the Minister's reference to the provision for the appointment of assessors and I should be grateful if the Minister would refer to it again but, from what the Minister says, the practice apparently is not to appoint assessors. I do not know how often assessors have been appointed but I should like to know in what proportion of cases in which people express dissatisfaction assessors have been appointed. The invariable reply to a Deputy if he makes representations on behalf of a person unsuccessful before an appeals officer is that there is no further tribunal, that the matter is closed.
The Minister would lead one to believe now that assessors may be appointed. I suppose the position is that the assessors must be appointed before and not after the appeals officer makes his decision. Again, who determines whether or not assessors will be appointed? Can the applicant insist? If there were a system of free arbitration in which people would either have to agree upon an arbitrator or else have the arbitrator appointed by an independent tribunal, that would be all right. Here, again, it is apparently the, shall we say, prosecutor in the dispute who decides whether or not there is going to be an outside assessor. Quite clearly that is unfair. Unless both parties can insist upon an assessor neither party should have the right. It would be better to have this outside tribunal to which Deputy Fitzpatrick refers in his amendment.
Again, the Minister suggests that there would be no further disputes in future, or room for dispute, on whether or not injury has arisen out of or in the course of employment. I should love to think that that is so. The fact is there is a great deal of case law which has determined this in the past and all that has gone to colour the report of the Commission which sat on this and has also influenced the legislation, but in future we will not have any system of case law. We will not have anything except the secret files of the Department of Social Welfare to give us a history of what is happening, to give any account of the disputes, to give any recital of the differences which have arisen in the interpretation of this Bill. Again, that is clearly unfair. If we are to be socially progressive we should have the fullest possible information about the manner in which our social schemes are working. We are not going to have that information. It will be on the files of the Department, unseen by anyone except the Minister, his deciding officers and appeals officers, but never made available to the trade unions or the legal profession, or to people who might be able to assist the worker.
If we had an appeals tribunal, we might not have its findings published, and in fact Deputy Fitzpatrick provides that the proceedings be conducted in chambers so as to reduce formality and reduce their cost, but at least the people who are assisting workers in making claims would have some experience and knowledge of what was happening and would be able to assist other claimants in the furtherance of their claims. In denying the right of people to prosecute their claims at an independent tribunal the Minister is preventing society and the country from keeping abreast of developments in industrial accidents and in the interpretation of the law. All that is going to work to the great disadvantage of the people the Minister seeks to help in this legislation. We in Fine Gael want to urge him, even though he is not prepared to accept this to-night, although perhaps later on he will, to listen to what we in these benches have said and also to what Deputy Tully has said and perhaps provide for some independent system of assessing claims later on.
Amendment put and declared lost.
Section 30 agreed to.
SECTION 31.
Amendment No. 94 not moved.
(Cavan): I move amendment No. 95:
In subsection (1), page 25 to delete paragraph (d).
Section 31 in general provides disqualification for injury benefit or disability benefit and the suspension of proceedings. It is the section which provides that a workman must submit to a medical examination, undergo certain treatment, and all that sort of thing. I have no great objection to that, but we see in paragraph (d) that the Minister may by regulation direct the injured workman "to observe any prescribed rules of behaviour". That is going a little too far. I do not know what might be included in that. The Minister might want a workman to go for a walk every day, or is it intended that if a workman was fond of a drink and the Minister thought that he took one too many that he could then suspend the workman's benefit? That is going very far in endeavouring to prescribe how an insured person shall live, shall spend his time and, I suppose, what he shall eat and certainly what he shall drink.
These may be taken as extreme cases but I will content myself with saying that I am not satisfied with a provision which enables the Minister to direct a workman to observe set rules of behaviour which the Minister shall prescribe. Certainly these are rules which would want to be laid on the Table of the House, although I do not think there is any such provision in the Bill but I have put down an amendment to say that they should be laid before the House. I shall not go any further with my argument at the moment but I should like the Minister to tell the House what he really has in mind by this paragraph.
I take it that this subsection is simply a repeat of the regulations in the existing Social Welfare Act where the rules of behaviour referred to are that a man shall not engage in work and so on? Is that the type of thing the Minister is referring to, or is this a departure, because if it is it should be spelled out?
It is that type of regulation which applies to disability benefit or unemployment benefit at the moment except of course in the case of people who were awarded disablement benefit but were not incapable of work. The rules prescribing that a person would not work would not be applicable in a case such as that. As Deputies know, a person may be in receipt of disablement benefit at the maximum rate and still be able to work and actually working.
Will the Minister give us examples of what he means by rules of behaviour?
A person might be required to present himself for medical inspection in the case of a provisional assessment.
Is that not provided for in paragraph (b)?
Yes, or a medical examination.
What are the rules of behaviour which it is considered there should be?
The rules of behaviour generally for a person assessed as being incapable of work would be roughly the same as for disability benefit at the moment, but for a person not incapable of work they would be a considerably watered down version of this.
Could the Minister give us an idea of what they are?
(Cavan): If Deputy Tully would go through this section with me, I think he would find that there is something more in it than meets the eye, and something more than what the Minister says. Paragraph (a) says that the workman is to submit himself from time to time for a medical examination for the purpose of determining the effect of the accident, and so on. That is quite reasonable. Paragraph (b) says that he is to submit himself from time to time to appropriate medical treatment for the relevant injury or loss of faculty. That is quite reasonable too. He should co-operate in trying to get better by submitting himself to the proper medical treatment. Paragraph (c) says he must “attend at such places and times as may be required for the purposes of the said medical examination or treatment.” Paragraphs (a) and (b) could be described as provisions for treating him and (c) is a provision which compels him to submit himself for medical examination to see if he has recovered, but then paragraph (d) reads: “to observe any prescribed rules of behaviour”. Certainly any ordinary person reading these four paragraphs would have to relate paragraph (d) to paragraphs (a), (b) and (c). If the Minister could assure me that that was a paragraph that would only ensure that a man is not working and “drawing”, as they say in the country, at the same time, I could understand it, but in the context in which it is there, it means no such thing. I would ask the Minister to tell us whether this is a transplant from the English Act and, if it is, if he has studied it carefully and if he knows exactly what is intended to be covered by the regulations it is intended to make under paragraph (d). The House is entitled to know that.
I fear that it is sought under these regulations to insist that a man will observe such rigid regulations as may be prescribed in order to compel him to get well, that he will live a model life, that he will do what he is told, and that if he wobbles a bit to one side —I do not mean as a result of visiting the "local" but if he does not carry out to the letter the prescriptions given to him—his benefit will be cut off. I am convinced that whatever the Minister's intention is, the people who framed this section and who put paragraph (d) after paragraphs (a), (b) and (c), had something like that in mind.
It would be the same type of rules of behaviour as are there already for disability benefit.
(Cavan): Could the Minister say what they are?
Such as that he will obey the instructions of the doctor in attending, and answer any reasonable inquiries by the Minister or his officers relating to his claim, and, one that may refer to the type of thing Deputy Fitzpatrick mentioned, that he shall refrain from behaviour which is likely to retard his recovery, but to interpret that in the way Deputy Fitzpatrick interpreted it would be unreasonable. Then there are rules in regard to not doing work except work of a certain light nature, but they, as I say, would apply only in the case where disability benefit or unemployability supplement was payable in addition to disablement benefit.
(Cavan): Are these regulations ever enforced? Is the provision which says he shall not do anything to retard recovery ever enforced?
I do not know. I have never had the question raised with me.
I know a case where the sickness visitor found a man digging his own garden. It was ruled that this was retarding his recovery——
It depends on what he was suffering from.
——and his benefit was cut off for a period because of that. Would the Minister say if there was anything in the rules of behaviour about absence from home?
Without leaving word? Yes, the person is required, in the case of disability benefit, to leave word as to where he may be found.
Supposing a man is suffering from an injury such as a broken arm and goes to a football match in Croke Park, or even Dollymount Park——
Does the Deputy mean Dalymount Park?
The Minister would be more aware of that than I. I am afraid I would be suspended.
There would be nothing to prevent him doing that, but presumably the sickness visitor would not be likely to visit him on an occasion such as that. Under the rules of behaviour for disability benefit, he is expected to leave word, but there is nothing to prevent——
If he is going to Dalymount, it could be an ordinary working day, and if the sickness visitor calls in the afternoon and he is missing——
The visitor is supposed to be able to contact him or know where he is, although he would not find him in Dalymount.
(Cavan): Supposing he were a follower of the national code and was sneaking off to Dalymount and left that information, would it be passed on to the vigilance committee?
This year it does not make any difference.
Is there any objection to writing the detailed regulations to which the Minister referred into the Act? If they are respectable, if they are fair, if they have been found in practice not to lead to any injustice, why not put them into the Act, or has it been found necessary, from time to time, as people devise ways and means around them, to add to them? I am not one of those people who think that Acts must be made so dull that one cannot put in little things like that dealing with human behaviour. Our elders in other generations did not find it necessary to exclude things of a personal and domestic nature from legislation. Under an Act of 1842 it is an offence to beat a rug after a certain hour——
Only a rug?
It is an offence to carry a privy through the public streets. It is also an offence to move furniture at night-time, after darkness. These Acts were not faulty Acts because they spelled out these things. I would prefer to see the limits of the Minister's power spelled out here rather than put in something which allows him to prescribe that people must follow certain rules of behaviour. I have in mind a man who has now gone to a better world and who could have been the mythical man who walked the crooked mile because of arthritis which set in and which rendered him incapable of following his normal occupation. I can say I know no better house decorator, since he was able to work in his own time, in his own way. Now because of these prescribed rules which required him to say where he was I suspect the poor man had to have white lies recorded from time to time. I only hope he has not had to spend too much time on the halfway mark in the next world as a result, but his doctor recommended that this man should do that kind of work. He regarded this as the kind of thing necessary to stop the man locking altogether and becoming absolutely incapable. I know that one must assume that Ministers will act reasonably and that the officers of the Minister will act reasonably, but I have the greatest reserve in giving to the Minister the power he seeks here. It is not good enough to say: "We did it in the past and it has not been abused, and therefore we should not try to mend our hands." I believe there is a great deal of merit in Deputy Fitzpatrick's amendment.
What Deputy Ryan is raising here is the whole question of making regulations rather than writing everything into the Bill. We are on section 31 now and we have come across many references to regulations that have to be made. It is fairly obvious that it would be completely impracticable to put everything into the Bill. These regulations, under subsection (5) of section 3 of the Principal Act, have to be laid before the House and can be annulled in the normal way by resolution.
Amendment, by leave, withdrawn.
(Cavan): I move amendment No. 96:
In subsection (2) page 25, line 14, to substitute "shall" for "may".
This means a man must get travelling expenses if he has to go to see a doctor. If "shall" is not put in, the Minister might order him to attend a doctor and not pay his expenses. If "shall" is there, the Minister must pay his expenses.
In the first line of subsection (1) of the section, we see: "Regulations may provide for disqualifying a person for receiving injury benefit..." The Deputy wants to go on to say that regulations under this section shall provide for payment?
(Cavan): I think that is consistent. The Minister may make regulations disqualifying a person in certain circumstances.
It seems the amendment could be interpreted to mean that these regulations in subsection (1) must be made.
(Cavan): No, I would not think so. I would read my amendment to mean that, if the previous regulations are made directing the man to go for medical examination, his expenses shall be paid.
It is intended to pay them anyway. It is just a doubt I have as to the effect of "shall" there. I must say I am inclined to think that what the Deputy says is true, that that meaning could be taken from it, but there is the other kind of view also.
(Cavan): I think, with respect, it is the only meaning that could be taken from it. The question of paying expenses does not arise until the man is ordered to go to the doctor. He cannot be ordered to go to the doctor unless the Minister makes regulations under subsection (1). When he makes the regulations and orders the man to go to the doctor, I say he shall pay his expenses.
I must say I think that is a possible reading of it, but it has been suggested the other is also possible. It is intended to make these regulations anyway and that these payments shall be made. It might be better to leave it as it is.
(Cavan): Would the Minister consider it between now and Report Stage?
I will. I will get definite advice. I have no objection to accepting it.
(Cavan): I am convinced it only arises when the other regulations are made. It would be meaningless otherwise.
I must say personally I am inclined to agree with the Deputy, but the doubt has been raised. However, I will let it go and accept the amendment.
Amendment agreed to.
Section 31, as amended, agreed to.
SECTION 32.
Amendment No. 97 not moved.
Section 32 agreed to.
Section 33 to 35, inclusive, agreed to.
SECTION 36.
I move amendment No. 98:
In subsection (3), page 26, line 36, to substitute "1/11d" for "2/1d".
This has been a bone of contention between myself and the Minister throughout the Bill. In Northern Ireland the amount required to finance occupational injuries is 1/11d, which includes Exchequer support of 20 per cent. Here the proposed amount is 2/1d. There is no public hardship allowance included in our Bill. It is included in Northern Ireland, and the Minister admitted this evening that it accounted for approximately 21 per cent of the cost of the Northern Ireland scheme. In addition, the Minister made a case, which he subsequently withdrew, that because there was a different way here of financing hospital and domiciliary treatment for accident victims, this should also be taken into consideration.
I did not withdraw that.
The Minister subsequently admitted that they would continue to be dealt with under the Health Acts——
In so far as they were covered.
——and that there would be a small amount included here. I think the Minister estimated it would be £150,000.
That is not a small amount.
It is small in proportion to what is being covered by the scheme here. For an extra £150,000, which is all that can be counted against the scheme, we are dropping the special hardship allowance granted in Northern Ireland and we are in fact adding an extra 2d to the charge. I said when we discussed this earlier, and I repeat now, that there is a catch somewhere in this Bill. There is a catch in the actuarial report which has produced those figures. To say they were rigged would be too hard, but I would say they have been manoeuvred in such a way that the Exchequer expect to gain much more out of the scheme than they propose to pay out. While saying that, I admit the Bill appears to be a very big improvement on what we have at present. The Minister cannot have it both ways. He cannot charge more than is being paid elsewhere and pay less out. That, in effect, is what he is trying to do. If there is a further explanation which the Minister has not so far given, I should like to hear it now, but, if there is not, then there is no justification either for the higher charge or, alternatively, for omitting the special hardship allowance and the increased amount which would give us parity, except in one case, with Northern Ireland.
In his report to the Commission on Workmen's Compensation, the actuary estimated that the annual contribution income for a scheme on a funded basis similar to the industrial injuries scheme in Northern Ireland would be £1.9 million. This scheme in general terms is similar to that scheme, similar to the scheme that was costed by the actuary, but there are a number of variations from the minority scheme as costed by the actuary. In the first place, the main benefit rates are about 18 per cent higher than those recommended by the commission. Injury and disablement benefit are to be paid at the same rate to women as to men, although it was recommended in the minority report that the women's rate should be only two-thirds of the men's rate.
Has the Minister any estimate of what the 18 per cent would represent in money?
I shall come to that. It represents £250,000. Then there is the question of the women's rates. Under the Bill, they are the same as men's, although the minority scheme recommended two-thirds.
What is that?
That is £170,000 extra. There is the cost of medical care which, although it was recommended in the minority scheme, was not costed by the actuary. That is £150,000. Then there is an increase of £10,000 in respect of increased rates of dependants' allowances which are being provided in the Bill. As against that, there is a decrease for the omission of the special hardship allowance of £400,000.
If it is 21 per cent——
21 per cent on £1,900,000.
You have added a considerable amount there.
No. The estimated cost of the actuary was £1.9 million. I do not know that the assessment of the special hardship allowance is exactly 21 per cent but it is very close to it: I think it must have been assessed at 21 per cent. In addition to that, we have the cost of disability benefit. That is estimated to cost in the region of £400,000 a year. Therefore, the overall amount required to be met by contributions is roughly £2.5 million. That is an additional expenditure over what was estimated by the actuary for the minority scheme of £600,000 and, in order to cover that, 5.5 pence were added to the contribution for men and 5.4 pence to the contribution for women, bringing the total weekly contribution to 2/1d for men and 1/6d for women. There are in fact a number of differences between the scheme as proposed and that recommended by the minority, which was similar to the Northern Ireland one.
What was the minority report costing—5.5 pence for men?
No, that is the addition.
Yes; it is all right.
The cost was 1/- and 7.5 pence for men and 1/- and .6 of one penny for women—which, of course, would have had to be rounded up, I take it, but that was the actual cost. We have to get another £600,000.
Time will prove whether the Minister's figures are right.
Whether the actuary or Deputy James Tully is right.
Exactly; I suppose we have to leave it at that.
Amendment, by leave, withdrawn.
Question proposed: "That section 36 stand part of the Bill".
(Cavan): We find it difficult to agree that there should be a flat rate contribution of 2/1d in respect of men and 1/6d in respect of women irrespective of the type of work that is being done. This particularly applies to men. The employer of a clerical worker has to pay 2/1d in respect of what is a comparatively harmless occupation and the employer of a man on woodworking machinery or in a quarry also has to pay only 2/1d. Like the case of the sliding scale for compensation in respect of injuries bearing a relationship to the amount of wages being earned at the time of the accident, we think this contribution here should bear some relation to the type of work being done. The Minister says that that would be difficult to work out but I think it would be more accurate.
This is not a question of difficulty so much as a question of principle. What Deputy Fitzpatrick is asking is to get back to the principle of risk rating, which applies at the moment. There are two points of view. One is that it is good. On the other hand, the whole principle of social insurance is the principle of spreading the risk over the whole field. Taking it all in all, I think that this is a good idea. If we are to have risk-rated contributions, some of the most important industries in the country, including agriculture, would have to pay a much higher premium than they will have to pay under this social insurance system. I think that this whole principle of spreading the risk is one that is justified and is in the best interests of the economy as a whole. In fact, some very important industries have found it impossible to get insurance at all for this risk under the present system. I think one of the main benefits of the Bill is that that is being done away with.
The Minister should stress that common law risk is not at all included——
No.
Simply workmen's compensation, accident or injury at work, is included here. It still does not let in those people the Minister has been referring to who are finding it difficult to get insurance because many of them find the difficulty not in respect of ordinary workmen's compensation but on the question of injuries. The Minister, I am sure, is aware that recently the tendency in compensation cases has been to get the case under common law and quite a number have succeeded in doing that. I agree that spreading the risk was the proper thing to do but I would also like to point out that it is an extraordinary situation that we have very few dangerous industries, nothing comparable to the coalfields in Britain or the big industries there, nothing even comparable with the big industries in Northern Ireland, and yet our charges are higher than they would be if we did have all those things here. I do not want to revert to the previous amendment but it does appear as if the person who prepared the actuarial report did have at the back of his mind that he was dealing with the same type of risk as exists in Britain and Northern Ireland. That is where the big mistake is made. Spreading the risk was the only thing to do.
It is interesting to note that agriculture has been one of the highest risks as far as accidents are concerned and that the risk has been increasing because of numerous tractor accidents. It is difficult to reconcile that with the rate of wages paid to agricultural workers as compared with the rate paid to industrial workers.
I do not think the actuary based his costs entirely on Great Britain or Northern Ireland. He had a certain amount of statistics available to him as to the nature of claims here. I do not know. As Deputy Tully says, it is by experience that we will find out.
(Cavan): Perhaps what I am going to say now might more properly be said on the Final Stage of the Bill but it arises out of what Deputy Tully says. I thoroughly agree that it would be very wrong to give the impression that the employers are now having shifted from them over to the Department of Social Welfare their obligation to compensate their employees for accidents sustained in their employment. No such thing. As Deputy Tully says, they will still have the very onerous liability of common law liability. That is the onerous liability. That is where one sees thousands of pounds—£15,000, £20,000 and more—being awarded. The employers will still have to insure against that and I venture to suggest that the number of common law actions will increase.
I should like to pose this question to the Minister: when we had social welfare benefit properly so-called paid by his Department and when the employer was liable to pay workmen's compensation, when a workman applied for disability benefit he immediately got a long form from the Department pointing out to him his rights against his employer and inviting him to investigate and explore them to the full. As a matter of interest, I wonder now, when the social welfare and workmen's compensation liability properly so-called are being housed under the one roof, will the Department of Social Welfare send out a somewhat altered leaflet informing the workman that he may have rights at common law against his employer and inviting him to explore those to the full.
The rights at common law would not affect the worker's right to benefit under this Bill. In fact, it is the other way about. There is provision that in assessing damages at common law account must be taken of whatever benefit is available under the Occupational Injuries Bill.
(Cavan): That is not the question. I wonder will the Department advise the workman?
It will be of no interest to the Department to do so. The obtaining of damages at common law would not relieve the occupational injuries fund of any expense.
There is another snag. I am sure the Minister has adverted to it. At present if somebody meets with an accident at work he applies for compensation and very often is paid compensation even though subsequently a claim at common law is taken and sustained. That will not happen now. The Department may perhaps get cluttered up with applications as to whether a case is a common law case or a workmen's compensation case. I would ask the Minister to ensure that if that does happen great care will be taken so that the person will not be left awaiting a decision.
(Cavan): They would have to pay in occupational injuries cases.
Yes, but there could be considerable delay while the matter was being ironed out. It would be a pity to spoil things in that way.
Question put and agreed to.
SECTION 37.
Amendment No. 99, in the name of Deputy T. J. Fitzpatrick, has been ruled out of order on the ground that it involves a charge on State funds.
Where do State funds come in there, in view of the fact that there is no State subvention?
I understand that Deputy Fitzpatrick's amendment seeks to take away the power to recover ministerial expenses from the occupational injuries fund.
They still have not got it, you know.
It would, therefore, have the effect of imposing a charge on the Exchequer.
(Cavan): I wanted to give the workers the full benefit of the contribution.
Amendment No. 99 not moved.
Section 37 agreed to.
SECTION 38.
I move amendment No. 100:—
In subsection (1), page 29, line 24, to substitute "three years" for "five years".
This amendment simply proposes parity with the Northern Ireland scheme. The time in Northern Ireland is three years. Here it is proposed that it should be five years.
The reason is that there is a worker's contribution in Northern Ireland and there is none here.
The amount is more here. It does not matter who pays it.
Yes, but the worker contributes a proportion of the cost in Northern Ireland. He does not contribute anything here.
What bearing has that on it? You get the money anyway.
Of course, it has a bearing. If the workers have to pay a contribution, naturally, the amount of the benefit that should be taken into account in the reduction of common law damages would be less.
Amendment, by leave, withdrawn.
Section 38 agreed to.
Section 39 and 40 agreed to.
SECTION 41.
I move amendment No. 101:
In subsection (1), page 30, to delete all words from "provided" in line 29 to "definition" in line 47.
The amendment suggests the deletion of a number of words. We have been talking about the size of the Bill being too great if other things were inserted. The words which I suggest should be deleted are entirely unnecessary. I do not know why they were inserted. This is one way in which the Bill can be reduced. The section, without those words, appears to have exactly the same meaning.
If what Deputy Tully asks were done this would be extending the type of service which would be reckonable for superannuation purposes under the Local Government (Superannuation) Act.
Very slightly.
No matter how slightly, it is not appropriate to do it under a Social Welfare Bill. It is appropriate to a Local Government Bill not to a Social Welfare Bill.
If it is referred to at all, surely it is appropriate if the Minister introduces it here?
If we left it out we would be extending the type of service which would be reckonable for superannuation.
By how much?
By more than I am entitled to.
That is cod. It is marginal.
It may be marginal but it is not within my competence
Amendment, by leave, withdrawn.
Amendments Nos. 102 and 103 not moved.
Section 41 agreed to.
NEW SECTIONS.
(Cavan): I move amendment No. 104:
Before section 42 to insert a new section as follows:
Every order and regulation made 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 the order or regulation is passed by either such House within 21 days on which that House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under the order or regulation.
This amendment proposes to make it obligatory on the Minister to lay all regulations made under this Bill before each House of the Oireachtas in the ordinary way. I understood from the Minister's remarks earlier on, that this amendment is covered by a section in the parent Act and that he is, in fact. obliged by that section in the parent Act to table all the regulations made under this Bill before each House of the Oireachtas, and if they are annulled within 21 days, they cease to be binding. If the Minister can give me an assurance that what I am seeking here is already covered, I shall withdraw the amendment.
Subsection (7) of section 1 provides that this Bill shall be construed with the Principal Act, and subsection (5) of section 3 of the Principal Act, the Social Welfare Act, 1952, reads:
Regulations (not being regulations of which a draft is required by this Act to be approved of by resolution of each House of the Oireachtas) shall be laid before each House of the Oireachtas as soon as may be after they are made and, if a resolution annulling the regulations is passed by either House within the next twenty-one days on which that House has sat after the regulations have been laid before it, the regulations shall be annulled accordingly, but without prejudice to the validity of anything previously done there-under.
(Cavan): If the Minister tells me that that is applied to this measure by subsection (7) of section 1, I am satisfied.
Amendment by leave, withdrawn.
I move amendment No. 105:
Before section 42 to insert the following new section:
42. (1) This Act may be cited as the Social Welfare (Occupational Injuries) Act, 1956, and shall be construed as one with the Social Welfare Acts, 1952 to 1965.
(2) The Social Welfare Acts, 1952 to 1965, and this Act may be cited together as the Social Welfare Acts, 1952 to 1966.
First of all I want to point out that there is a printer's error in the amendment on the Order Paper. It refers to 1956 instead of 1966. In subsection (1) of the amendment, "This Act may be cited as the Social Welfare (Occupational Injuries) Act, 1956," should obviously be "1966". When the Bill was originally introduced, it was a 1965 Bill, but now obviously it should be a 1966 Bill.
The printers were right. They thought this should have been done ten years ago, and we all thought the same.
Some of the Deputy's colleagues at that time did not think so.
Amendment agreed to.
Section 42 deleted.
Title agreed to.
Bill reported with amendments.
Report Stage?
Tuesday, 22nd February.
Report Stage ordered for Tuesday, 22nd February, 1966.
The Dáil adjourned at 10.15 p.m. until 3 p.m. on Wednesday, 9th February, 1966.