The Chair has suggested that we take amendments Nos. 3, 4 and 58 together.
Social Welfare (Occupational Injuries) Bill, 1965: Committee Stage (Resumed).
Debate resumed on the following amendment:
In page 5 to add to the section the following new subsections:
"(9) Any claim for benefit and any question arising in connection with a claim for or award of benefit under this Act shall be determined in accordance with the provisions of this section by a deciding officer, a local appeal tribunal or the Occupational Injuries Commissioner.
(10) A local appeal tribunal shall consist of one or more members chosen to represent employers with an equal number of members chosen to represent insured persons, and an appeals officer (who shall be chairman of the tribunal) appointed by the Minister.
(11) The Occupational Injuries Commissioner shall be a barrister or advocate of not less than ten years standing or a judge of the Circuit Court.
(12) Regulations may make provision that in such cases, as may be prescribed, one or more medical practitioners shall sit with the tribunal either as additional members or as assessors and for the appointment by the Minister of medical practitioners to act for this purpose.
(13) Panels of persons chosen to represent employers and insured persons respectively shall be constituted by the Minister for such areas as the Minister thinks fit and the members of the local appeal tribunal to be chosen to represent employers and insured persons shall be selected from those panels in the prescribed manner.
(14) Regulations may provide—
(a) for authorising an appeal tribunal consisting of two or more members to proceed with any case, with the consent of the claimant, in the absence of any member;
(b) for prescribing the procedure to be followed, the form of any document required, or the evidence to be required in connection with the consideration of claims and questions.
(15) Where a claimant or beneficiary is dissatisfied with a deciding officer's decision he may appeal to a local appeal tribunal.
(16) An appeal shall lie to the Occupational Injuries Commissioner at the instance of a trade union of which the claimant or beneficiary was a member at the time of the relevant accident.
(17) Save as is provided under this section claims shall be decided in the manner prescribed under the Social Welfare Acts.
We were discussing the question of an appeals tribunal or an appeals mechanism of some kind when we adjourned the last day. Now, the Minister has been at pains in both Houses to put forward the contention that the absence of an appeals tribunal or an appeals mechanism, outside the Department of Social Welfare, is something which is innocuous and does no harm, and moreover had the support of the minority report of the Commission and the trade union representatives in particular. For example, in the Dáil, as reported at column 1080, volume 220 of the Official Report he said:
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.
He went on to say:
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' viewpoints 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 injured population——
I am not quite sure what is meant by "the injured population".
That makes it better. It goes on:
——since it was introduced in 1952.
When the Minister came into the Seanad he told us something similar. As reported in volume 61, at column 611 of the Official Report, he said:
I am entitled to refer to the view expressed in the Minority Report of the Commission which studied this matter and which consisted to a large extent of workers' representatives. They were of the opinion, as they said in paragraph 17 of the Report, that the administration of the social insurance scheme recommended by them would be by the same machinery as in the case of other social welfare benefits by way of deciding officers and appeals officers.
He went on to say:
While, as I said, the minority of the Commission stated in their report that this system had worked quite satisfactorily, they did in the scheme which they eventually submitted make provision for local appeals tribunals. However, in view of what they have said, it appears to me that what they had in mind was that assessors such as are connected with unemployment benefit appeals might be appointed to assist appeals officers and there is already provision whereby that can be done.
It is quite clear from this, and indeed from the debate we had here on Committee Stage on the last day, that the Minister was purporting to convince both Houses of the Oireachtas that the Minority Report of the commission was against any appeal outside the Department of Social Welfare, except for the possibility of a provision for local appeals tribunals.
I had occasion in this debate to take the Minister up on an equally misleading statement which he made about the Majority Report. As reported at column 292, volume 219, of the Official Report he said:
I should say that the difficulties in arriving at an equitable determination of earnings under the existing workmen's compensation scheme led the majority of the commission to recommend flat rate benefits instead.
That was precisely the opposite to the truth, as the Minister himself admitted later in this House when he said, as reported at volume 61, column 339 of the Official Report:
What I intended to say was that there was this difficulty in arriving at pre-accident earnings which led the Commission to seriously consider it but they did, in fact, recommend wage relationship.
The Minister, therefore, did not read the Majority Report—at least, he told us he read it twice and I do not doubt his word, but he did not take it in, any more than he took in the Minority Report, if he tells the Dáil and the Seanad that the Minority Report recommended in favour of limiting appeals to the Department of Social Welfare or to local appeals tribunals, and that the Minority Report was against appeals to a judge of the Circuit Court, or whatever the appropriate court might be. This, of course, is simply not true despite the Minister's repeated statements in the Dáil and Seanad. It is the precise opposite to the truth. He told us he read the report twice but he did not take it in, because he attributed to the Minority Report precisely the opposite view to the view they expressed which they went to the trouble to print in capital letters in the middle of the page to make sure that the Minister and people like him would see it.
Paragraph 20 of the Minority Report states:
We recommend, therefore, that the existing system of workmen's compensation be abolished and replaced by the Social Insurance Occupational Injuries Scheme set out in Annexe 1 to Appendix XIII of this report....
That is the recommendation of the Minority Report, not an obiter dictum taken out of context by the Minister and attributed to the Minority Report when, in fact, their view is the exact opposite. When we turn to Annexe 1 to Appendix XIII of the report we find that it is stated in paragraph 15:
Determination of Claims.—All claims to benefit will in the first instance be dealt with by an Insurance Officer of the Department of Social Welfare on an application by or on behalf of a workman, or, in fatal cases, by or on behalf of the workman's dependant(s). Should the Insurance Officer decide against the claim, the claimant will have a right of appeal to the Local Appeal Tribunal.
The Minister implied in his speech that that was the only appeal which the trade union members of the Minority Report sought. The paragraph continues:
This Tribunal will consist of one or more members chosen to represent employers with an equal number of members chosen to represent insured persons and a Chairman appointed by the Minister for Social Welfare.
So far, so good. Apparently the Minister did not read on to the next sentence or perhaps the capital letters were too big for him to take them in. It is stated in capital letters:
APPEALS WILL LIE FROM THE DECISION OF THE LOCAL TRIBUNAL TO A JUDGE OF THE CIRCUIT COURT SITTING AS A COMMISSIONER.
It is completely unsatisfactory for a Minister to come to both Houses and make misleading statements. He says that he wants to reject the Majority Report and to take the Minority Report. Fair enough. But in fact he wants to reject both reports. He should tell the Dáil and Seanad truthfully and openly what he thinks about any commission, any trade union, or anything else. He said that the minority of the commission were in favour of this type of machinery, that the system was flexible and had worked to the complete satisfaction of the insured population.
For the Minister to quote this remark out of context without reading on and telling the Houses what was recommended, and to give the Houses a misleading impression—because all Deputies and Senators might not read through the 357 pages of the report —is below the minimum standard of ministerial integrity which we expect in this House and in the other House.
The members of the commission, both the majority and the minority, are entitled to better treatment than this, together with perfunctory thanks which the Minister gave them. His assurance that he read the report twice rings hollow when he says the Majority Report recommended in favour of flat rate benefits when they specifically recommended the opposite, and when he says that the minority rejected an appeal to a Circuit Court judge when they specifically made that recommendation.
How can we rely on anything the Minister tells us when he will misquote for his own purpose what the Minority and the Majority reports have stated? I think that the House must seriously consider its position in this matter. We have here this question of an appeal which is supported by the majority of the Commission, who want the existing system retained. It is supported by the minority who want it abolished, it is supported by an official of the Minister's own Department who signed the Minority Report, by the Trade Union Congress which supported the Minority Report, and it is supported by two members of his own front bench. On the Second Stage Senator E. Ryan and Senator O'Kennedy both told the Minister that he ought to have an appeal to the courts. The Minister has accused me of arrogance. Fair enough, but now the Minister in his arrogance believes that he knows better than the Minority or the Majority, the Trade Union Congress, his own official and his own front bench, and will go against the lot of them to prevent a workman having an appeal to the court. The Minister ought at this stage to realise that in all that he has said in this House he has failed to make any case for such an attempt to take away the elementary rights of the workman. We are entitled to require from him that he should give further consideration to this matter.
In the light of what has been said, the Minister ought to tell us at this stage that he admits he is in error, perhaps a genuine error—he may not have read the scheme attached to the report, or having read it may have forgotten it or somebody may not have been competent to interpret it. He may have some excuse of that kind, but whatever the reason the Minister should at this stage withdraw from the position he has got himself into and admit that this matter should be further considered.
I ask him to give further consideration to this and to tell us at least that he will consider it further and having read the reports of the Commission more fully and considered the recommendations, he will come back to us on the Report Stage and give a considered view that he does not appear to have had so far, giving it the deep consideration it should have got. It has never been considered adequately because both Houses were misled, inadvertently or otherwise, about the recommendations of the Commission.
I hope that the Minister will tell us that he has made a genuine mistake, which could happen to anyone, and that he is prepared to reconsider the position and come back on the Report Stage with a reasonable amendment to meet the wishes of both the Majority and the Minority reports, of the Trade Union Congress, of his own Department as expressed by the Departmental official, of every official and of members of his own front bench who spoke in the Second Reading debate.
Not forgetting the opinions expressed from this side of the House.
The least persuasive thing might be that the Fine Gael Party should support it, but he might even take that into consideration, too. I hope that he will consider it seriously in the light of this possibly genuine mistake, review his position and come back on the Report Stage with an amendment that will meet the case that has been so well made from both sides of the House. This is very much a case of having second thoughts and is an instance of where the Seanad can fulfil a useful function in drawing the attention of the Minister to something which has been overlooked in the other House and which needs further consideration. If this House has a function, it is in a case like this where both sides appeal to the Minister to reconsider something which, whether through a misunderstanding or possibly an error, has led the Minister to fall into the position of giving an assurance to both Houses not in accordance with the facts, perhaps through inadequately reading the Minority Report.
It would not be appropriate for me to inquire into what happened at meetings of the Fianna Fáil Party when this was considered, but I think this is a matter which members of that Party would want to consider as to whether they were told what the Minority Report said or whether once again a misunderstanding occurred there and they were misinformed and may perhaps have taken a decision contrary to the facts. If so, this is a further reason for the Minister reconsidering the matter even for the benefit of his own supporters. I appeal to him to do so and to admit that there is an error which requires further consideration.
Senator FitzGerald has referred to my attitude on the Second Stage of this Bill. He has quoted authorities to support his own viewpoint. I must say that I was never under the impression that we were being misled by what the Minister said. Senator FitzGerald may have gone far beyond the bounds of what he was entitled to say, but on the evidence the Minister put before us here certainly I was not misled in the House or at any meeting of the Fianna Fáil Party.
Having said so much, I feel obliged to say that I still feel that the opinions I expressed on the Second Stage of this Bill are ones I would still readily commend to the House. I say this with some reluctance. I have heard the Minister repeat here on occasions that he cannot find himself in a position to accept any of the amendments that have been put down by the Labour Party or by the Fine Gael Party. To be quite brief, I do feel quite sincerely that it is in the interests of workmen that there should be an appeal from the decision of a deciding officer or an appeals officer to the court. I feel that this particularly applies in cases where one might be asked to consider whether or not the accident arose out of or in the course of the employment. The Minister has made the point here—I think it is a reasonably valid one—that this is an extension of the social welfare code and that to that extent the machinery already in use under this code should cover this extension. I would agree with him except in so far as the consideration of a workman's claim is going to involve an issue which I feel could never have arisen under the existing social welfare code, that is, whether or not the accident arose out of or in the course of the employment.
In so far as that new element is introduced in the Bill, while I would accept with some reluctance that the existing machinery can deal with every other aspect of this both as to medical considerations and other matters, I feel that when the question arises of considering whether or not the workman is entitled to benefit because the accident arose in the course of his employment, that is something that if it is decided in the first instance by an appeals officer or a deciding officer I would press the Minister to consider strongly that an appeal should lie to a tribunal or to the court. In this case the court would appear to be the more appropriate body.
I have looked up the amendments of both Senator Miss Davidson and Senator Murphy and of the Fine Gael Party. Taking the amendment in the names of Senator FitzGerald and O'Quigley first, their amendment would appear to go more or less along the same lines as I suggest with this exception, that their amendment says that "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 payable under this Act." I would go with them in the first instance, that an appeal should lie in respect of entitlement to, in so far as the question that would be considered there is whether or not there was an accident arising out of or in the course of the employment, but I do not think it is quite necessary that an Appeal Tribunal or a judge as the case might be would have to consider the amount. This is a matter that the deciding officer or Appeals Officer in the first instance could readily decide on. I would imagine that any dispute that would arise would not arise as to the amount. This would be determined at an early stage, but the other matter could arise.
I do not quite follow the procedure which Senator Miss Davidson and Senator Murphy would suggest, but I think again that they suggest that there should be an appeal from an Appeals Officer or a deciding officer. To that extent I would suggest that the original basis would meet the needs of the case. I would urge the Minister to reconsider that aspect of the matter.
Business suspended at 6 p.m. and resumed at 7.30 p.m.
I had just concluded on this matter. As I say, I hope the suggestion I made might find itself commendable to the Minister. If he were prepared to consider it it might meet in a large measure the major content of the amendments put down by Senators Garret FitzGerald and O'Quigley and Senators Murphy and Miss Davidson.
I was hoping the Minister might give some indication as to what his mind is with regard to the matters raised by Senator Garret FitzGerald and Senator O'Kennedy on those particular amendments. I must say on the occasion on which we were last debating those particular amendments in the Seanad I was somewhat taken aback to find that the Appeals Officer sat with assessors who are also appointed from time to time by the Minister. When Senator Honan was speaking I thought that he was talking about the old age pensions committees and that in fact he had never sat on the appeals tribunal as an assessor under section 44 of the Social Welfare Act, 1952.
I find it somewhat alarming to think that we have really got to the position in which you have persons adjudicating on things who are not civil servants but who may, in fact, be politicians. I say this, with all respect to Senator Honan, for whom I have the liveliest feelings of respect but I think it is undesirable that the entitlement of a citizen of this State should be decided by a tribunal which can be composed of the politicians of one party. I do not say that has happened but certainly it can happen. We all know in small towns in rural Ireland the way party political organisations work, that the political views of most people are known. We also know that if people make representations to their party politicians that those eventually find their way to the appropriate quarter, whether Ministers, Deputies or Senators. I say this without any regard to what Senator Honan has said.
I am merely talking about principle here. It is a very bad principle that the entitlement of a workman to compensation under this Bill should be determined by a tribunal presided over by a civil servant who is a servant of the Minister, who acts under the Minister, who depends for his future promotion on the Minister and on the impression he creates on the Minister. In fact, he is a person who has no real independence. The authority of the Appeals Officer is further reduced by having the assessors appointed by the Minister. Those people can be solely members of a political party. That, to my mind, is not an independent tribunal. I thought it was a bad enough situation that the appeal should be to an Appeals Officer who was the anonymous, faceless civil servant nominated by the Minister for Social Welfare to be an Appeals Officer but when you add to that that an Appeals Officer may be watched over by the unscrupulous politician who is on the board as an assessor. I think we have got to the stage where we are open to all classes of political corruption. That is a hopeless substitute for the sturdy independence of the Circuit Court judges, who up to now have tried the small number of cases, let it be said again, where employers have not paid their employees the workmen's compensation they were entitled to. It is a very shoddy substitute to offer in the form of an Appeals Officer with assessors.
There is nothing to compensate and no substitute provided in this Bill for the right of appeal which a workman has under the present workmen's compensation code to the Supreme Court. Let there be no mistake whatever about it and let the Members of this House enact this Bill in the full knowledge of what they are doing. They are removing the right of appeal, the right of a workman who has been injured and who may appear to some people to be a malingerer, who may seem to have workmen's compensationitis but who has often turned out in the passage of time to have had a very genuine complaint. We have all seen that kind of thing. A workman's right will be determined by an Appeals Officer appointed by the Minister for Social Welfare.
That is what we are substituting for the Circuit Court and for the ultimate appeal to the Supreme Court. The Minister for Social Welfare obviously does not think very highly of the right of appeal, the particular right of appeal provided under the present social welfare legislation.
I have here two documents, one "A Guide to the Social Services", published in 1963, 12th edition. The second is a genuine Department of Social Welfare publication, 1966, bang up to date, entitled "A Summary of Social Insurance and Assistance Services." I have looked through the index in the first document—"A Guide to the Social Services". You will not find any right of appeal provided in that or any mention in it that under the social welfare code a person is entitled to sickness benefit, or widows' and orphans' pensions, or that he has the right of appeal to an Appeals Officer. That is not provided in this document. The Minister for Social Welfare may well say that that document is not published under the aegis of his Department. It is one of those anonymous productions dated November 1963 and is published by the Stationery Office, but who prepared it is not disclosed in the publication. The Minister may say that he has no responsibility for that.
We turn to the other document produced, evidently, by the Department of Social Welfare. There is nothing in this document indicating that a person who disputes the decision of a deciding officer under the social welfare code has a right of appeal.
I am bound to ask why is it that in those two publications these legal rights are not set out for the intended beneficiaries under the social welfare code. Why is that? I have come to the conclusion, and I infer from all that has been said here in the Minister's statement in regard to the recommendations of the persons who signed the minority report, that the Minister for Social Welfare is not fully alive to the serious implications involved for workmen and others who are using the right of appeal under this Bill.
A right of appeal, to my mind, is extremely important and I do not think any citizen should have to go through the rigmorole of going to Deputies and Senators and getting them to make representations on a matter which he, setting out the full facts, is entitled to have argued directly to an appeals tribunal. They will not find in these documents that they have that statutory right under the social welfare code. The fact is that it is not highlighted. It is the ultimate thing that matters to the people who are refused a particular benefit under the social welfare code and the fact that that is not highlighted fills me with alarm. It is absolutely essential that there should be a right of appeal under this Bill and that that appeal should be to a person who is completely independent of the Minister for Social Welfare, or the Department of Social Welfare and Deputies and Senators of all Parties, and who will decide on the facts as presented to him sitting on a tribunal.
I should like to refresh Senators' memories, without repetition, on the point I made earlier that this Bill creates no problems for lawyers—that it will increase their incomes. I do not argue from the standpoint of a representative of a body who will lose money by the enactment of the Bill and for that reason I wish to make it perfectly clear that Senator FitzGerald and myself in the amendment have suggested that this form of appeal will be the least possible expensive type of appeal.
Members of the House will recollect that in the Succession Bill, which we debated at considerable length, we made provision for appeals to the courts and we had the assurance of the Minister for Justice that appeals in chambers were the most expeditious and least costly. In paragraph (c) of the amendment we provide that appeals shall be held in chambers and shall not be subject to further appeal or to any other tribunal, court or person. We are transferring to this section a provision of the Succession Bill involving the kind of appeal the Minister for Justice described as the least expensive and the most expeditious.
I cannot see why, in the light of the complicated provisions to which I have referred and to which Senator O'Kennedy referred, it can be argued that the workman, whose well-being and welfare should be the dominant consideration in a matter of this kind, the amendment cannot be accepted. From my experience, I have no doubt that it is essential in the interest of workmen that there should be an appeal to an independent appeals tribunal presided over by some judicial person. The Minister can take his choice—district justice or Supreme Court judge. We must have the independence with which these members of the Judiciary are endowed and with which they can act.
That is the important thing from the point of view of the workman. The Minister for Local Government made a general confession here this afternoon and I make not a general confession but a confession that at the time I drafted and submitted this amendment with Senator FitzGerald I was not aware there was a provision in the Minority Report containing a recommendation of the Irish Congress of Trade Unions that there should be an appeal from the decision of a local tribunal to a judge of the Circuit Court sitting as a commissioner. On the Second Stage I said that eminent Fianna Fáil solicitors in the country had asked: "How in God's name did the trade unions allow the Bill to go through"? The Trade Union Congress emphasised that the interests of workmen would be best served by a final appeal to a judge of the Circuit Court, sitting as a commissioner. That, in substance—it is a coincidence because I was not aware of that recommendation at the time—has been translated into our amendment. We cannot all be wrong. The Minister's front bench cannot be wrong, the Irish Congress of Trade Unions cannot be wrong, the minority report cannot be wrong and all the Senators on this side cannot be wrong and only the Minister right.
On Senator O'Quigley's comments on these appeals boards, I should like to make it clear that I was not appointed by the Minister. The Minister and his Department asked the Ennis Chamber of Commerce to suggest three names of people who would be prepared to act on the boards. I understand the Minister made a similar request to the labour bodies in Ennis. I was called in infrequently, other members being called in turn. The Minister accepted my name as one of the three sent in by the Ennis Chamber of Commerce. We do not sit as assessors. We act to hold a watching brief on behalf of persons whose appeals are being considered. It is expected of us that we see the Appeals Officer goes about his business in an impartial way so that justice is done to the appellants. I should like to be clear on that point—I was not appointed by the Minister. My name was suggested by the Ennis Chamber of Commerce and I do not consider myself as being on the board as an assessor.
I think that is the only function—as an assessor. I do not think that alters the situation in any way.
The criticisms of the appeals system which is proposed in this Bill seem to me to rely to a large extent on the fact that Appeals Officers will not be qualified lawyers.
That is not the position.
A Chathaoirligh, I ask you to ensure that I am allowed to speak without interruption as were Senators O'Quigley, FitzGerald and others. I sat and did not interrupt. The interpretation I place on what has been said is that because these people will not have legal qualifications they will not be able to view the matter properly. It was unworthily suggested that because they are civil servants they will be subject to some pressure from the Minister. That suggestion is contemptible. The Minister will not have any interest in trying to ensure that workers will not get the compensation to which they are entitled. If that were my approach, if my interest were not in trying to ensure that the maximum amount possible was provided for injured workmen out of employers' contributions, I would have taken the easy way out and accepted the figure submitted by the majority report—a maximum of £7 a week compensation.
In 1960.
This was submitted to me in 1962.
The figure was arrived at in 1960.
It was submitted to me in 1962. I could have accepted that but because I was anxious that the maximum possible compensation would be obtainable by injured workmen I opted for the scheme which would enable the much more substantial benefits being provided in the Bill to be paid. Senator Miss Davidson pointed out that under the present social welfare Acts Appeals Officers far from being antagonistic to workmen, are helpful to them. A number of other Senators agreed with that view.
I think I am entitled to say, therefore, that there is every reason to believe that the approach of the Appeals Officers will be to try to see that a just decision is arrived at. I completely reject these allegations that they will be actuated by a desire to save the fund at all costs, just as I reject the allegation that the Minister will have any such interest in doing that and that his interest in protecting the fund will be so strong as to make him exert this pressure by way of withholding promotion from Appeals Officers who behave in a just way. The fact of the matter is these Appeals Officers will be experts on this subject, with a comprehensive and specialist knowledge of social welfare matters generally and, unlike judges, who are quite likely to have only a cursory personal knowledge of social welfare matters and whose decisions will depend, to a large extent, on the manner in which the case is presented to them, the approach of the Appeals Officer will be to try to get at the facts and not to sit in judgment on a contest between two sides.
I must emphasise also that, unlike the present system of which some Senators are so enamoured, under the system I propose, there will be nobody there for the specific purpose of trying to break the claimant's case down. Compensation will no longer be a question of the liability of the employer, against which he will normally insure with a private insurance company, so there will be nobody then with a vested interest in trying to deprive the injured workman of compensation. There will be nobody there who will be paid to use his skill and legal training to try to see that compensation will not, in fact, be paid. The aim of Appeals Officers and, indeed, of Deciding Officers also will be purely and simply to ascertain the facts. They will be as much concerned to see that the benefit is paid if it is due as they will be to see that it is not paid if it is not due. There will be no question of taking advantage of any weakness in the pleading of the case on behalf of the appellant, but the Appeals Officers and Deciding Officers will seek after facts which may appear not to be adequately presented to them.
It is justifiable for me to say also that disputes will hinge mainly on the question of incapacity or degree of incapacity. The Accident Offices Association on page 34 of the Report, paragraph 100, informs the Commission that the cases involving dispute, under the existing Acts, almost invariably rested on the question of incapacity. Under the existing system these matters have to be decided by judges who themselves are not qualified to decide these matters but who have to decide on the evidence of experts acting for the two parties in the dispute. While Senators argue that an appeal from one civil servant to another is in fact, no appeal, the same thing can be said in regard to an appeal from one court to another. Despite the infallibility which Senators are attempting to attach to decisions made by judges, we have the fact that there are many cases of reversals of decisions given in a lower court, so I cannot see how it can be argued that a workman is more likely to get a favourable decision from the courts than from these Appeals Officers and Deciding Officers which I propose, who will be experts on the subject with which they are dealing and will not have any personal interest in ensuring that compensation will not be paid. It should be accepted then that they will be at least equally competent to deal with these matters, particularly since they will be specialists in these matters.
I want to make a reference to something in the Majority Report and, in case there should be a further misunderstanding about it, I might as well emphasise at the start that this is something which is stated in the Majority Report not as the definite opinion of the Majority. Where arguments were being given about systems of adjudication it said:
....it can be argued that the ordinary courts are already overburdened with work, that there are normally no legal costs in administrative proceedings where the litigant is usually represented by a trade union official, and that matters which involve a public service are best administered by specialists in that service.
It is true that, having adverted to that argument, the majority did not, in fact, accept it. They went on to recommend the continuance of the present system but the minority, which as I said included the workers' representatives, did opt for such a system and it is admitted that that argument is there. Unlike the majority of the Commission, I believe that is the more correct view to take of the matter.
What did the minority opt for?
I shall come to that and I shall quote the minority's opinion.
The Minister would make a very good lawyer. He is arguing a bad case very well.
It is my opinion that it is preferable from the workers point of view that these matters should be decided by people who are specialists in the particular field, particularly when, as I have shown and as I think should be obvious to anybody, they will not, in fact, have any interest in seeing that compensation is not paid and when their only approach will be to see that justice is done.
There is an assumption by some Senators here that the reference of a dispute to a court will automatically ensure that the person obtains his rights. I do not think that is automatic at all. Senators who are members of the legal profession appear to have this genuine belief that anybody who has been to the courts to obtain what he believes to be his rights is satisfied with whatever verdict he receives.
Most workmen got favourable verdicts from the courts; that is the point.
But most Members of this House who are not members of the legal profession will have the opinion that adverse decisions are not made any more acceptable to the people who receive them merely because of the fact that they were obtained in court, and probably at some cost to the person concerned. It is true to say that the obtaining of one's rights through court procedure depends to a large degree on the skill, knowledge and degree of zealousness on the part of the legal team which is appearing for the person concerned.
I could quote a decision where a claim to workmen's compensation was dismissed because neither the court nor counsel acting for the claimant was aware of the law applying to the particular case in question. It was the case of an Irish seaman on a British ship, and it was only when the claimant's solicitor——
Would the Minister give the reference?
I can tell the Senator that this was a question which was raised with me on a number of occasions by Deputy Kyne in the Dáil. If the Senator wants the particular case I can get it for him.
I should be interested to find out the facts.
It was only when the claimant's solicitor was unofficially informed by my Department—after these Dáil questions by Deputy Kyne and arising out of these Dáil questions —as to the errors which were made by the court that he was able to initiate an appeal to the Supreme Court. If it were not for the fact that the employer had not completed the formalities which were required by the Circuit Court ruling, the time for an appeal would have expired and he would have had no redress whatsoever. It was purely and simply because of the fact that the existence of a reciprocal agreement in this matter was not brought to the notice of the court. I have said it was because the court was not aware of it. I do not know. Perhaps the judge was aware of this fact but did not feel entitled to advert to it because his attention was not drawn to it in court. I do not know, but I do know it was because it was not adverted to in the court that this seaman was deprived of his compensation for a considerable time. He eventually succeeded in obtaining it, after appeal to the Supreme Court, only because of the fact that my Department brought the matter to the notice of the solicitor and because the formalities had not been completed by the employer. That type of case would not arise under the system I propose, because the Deciding Officers and Appeals Officers will have expert knowledge of the subject with which they are dealing.
Senator Miss Davidson felt that notwithstanding the responsible attitude of the Appeals Officers they would not be capable of taking a wide view of the case of a workman who had been injured. She said it could happen that an injury suffered might not in itself be serious but the Appeals Officer would not be in a position to realise what the ensuing years might bring to the injured party. In circumstances such as this a decision on appeal, whether decided by an Appeals Officer or anyone else, must largely depend on the medical evidence. This medical evidence will be available in the fullest measure to the Appeals Officers. I do not think it can be reasonably argued that Appeals Officers, who may be assisted by assessors if the need arises, are any less qualified to decide on the medical evidence than a person with legal qualifications assisted by representatives of the employer and the worker as envisaged in this amendment which is before us at present. These Appeals Officers have considerable experience of this type of thing.
A further important matter to remember in this connection is that under this scheme, unlike the present workmen's compensation system where liability may be terminated once and for all by a lump sum, a case, in so far as the degree of incapacity is concerned, is never finally closed. The workman can reopen his claim, or seek an increase in the rate of payment awarded to him, if his health deteriorates as a result of the accident.
References which I made to the views expressed by the Minority of the Commission were first of all brushed aside as of no value by Fine Gael Senators, and later it was claimed that they did not, in fact, express these views at all.
The minority.
I do not accept Senator FitzGerald's interpretation of the Minority Report. The statements I quoted were clear and explicit——
And misleading.
——and obviously they were considered statements by the Minority of the Commission. It seems to me to be dear that having made these statements of their opinions, it was not fully appreciated that a replica of the British scheme which they eventually recommended did not in all its details conform with the social welfare system we have here.
Not only did they recognise that but they put the bits which were different in capitals to draw attention to the differences.
The Minister must be allowed to speak without interruption.
I maintain that a more reasonable interpretation is that what the minority had in mind was, as I have said already, that the Appeals Officers should be assisted by people such as assessors for whom provision is already made in the Social Welfare Acts.
Although they recommended the opposite.
I do not by any means rely entirely on the opinions of the minority but the fact that——
Changing step.
The fact that the minority included three officials representative of the workers is of some importance.
When it suits the Minister.
The Commission sat for a period of six years and there can be no question of the workers' representatives having been stampeded into expressing views which were not thoroughly considered.
In paragraph 17 of the Report, at page 203, the minority said:
A Social Insurance Occupational Injuries Scheme would have many attractive features. It would remove workmen's compensation from the atmosphere of litigation and contention, with a consequent betterment of the relationship between employer and employee. Administration would be by the same machinery as in the case of other social welfare benefits by way of Deciding Officers and Appeals Officers.
Administration.
The paragraph goes on:
This system is flexible and impersonal and has worked to the complete satisfaction of the insured population since it was introduced by the Social Welfare Act of 1952.
Administration, not adjudication and appeal.
As I said before, it is true that later on in paragraph 45, at page 215, the minority said:
Adjudication by the Courts has long been regarded by workers' representatives as one of the most undesirable features of the existing system.
Those were the considered views of the minority and they should be given some weight.
Overriding the minority recommendation.
I have already dealt with that.
The Minister ignored it.
I did not ignore it but the Senator was not listening. He was interrupting at the time.
Would the Minister read the recommendation——
Is this debate to continue by way of question and answer?
The Minister must be allowed to continue without interruption.
If the Minister asks a question, we shall answer it.
The Minister, to continue without interruption.
And without heat.
The majority did not see anything particularly objectionable in the system of adjudication on appeals which I propose, though I agree that they did not recommend this type of machinery.
They just used capital letters.
I have not got the exact quotation, but if Senator FitzGerald likes to look it up, in their dealing with the administration of a different type of scheme, a social insurance scheme of flat or graduated benefits administered by a State sponsored body, the majority considered whether the initial handling of claims should be carried out by the Department of Social Welfare, leaving to the body itself the function of dealing with appeals against decisions on claims made to the Department. They concluded with this statement:
In this connection it is suggested that the existing machinery of the Department of Social Welfare for handling disputes and appeals works smoothly and that it could undertake work of the kind mentioned in an equally satisfactory manner without the intervention of a State-sponsored body.
I am not saying that the majority recommended this system, but I do suggest that they have not got the low opinion of it which Senators here suggest that they have.
We had, of course, the statement that whatever about the workers' representatives on this Commission the practising politicians did not have the same view of the appeals machinery of the Department of Social Welfare. I quite appreciate, as a politician myself, that there are a number of politicians to whom the only satisfactory type of appeals machinery would be machinery which would uphold appeals recommended by the particular politician himself. I find that in many cases politicians are quite satisfied with appeals which are decided in favour of people on whose behalf they made representations while they are dissatisfied with those cases in which adverse decisions are given, but I do not believe that they would be any more satisfied if these adverse decisions were to be made by a judge, either in open court or in chambers, as has been suggested.
As I have pointed out already, we are entitled to assume that the vast majority of disputes arising in this connection hinge on the question of incapacity or degrees of incapacity. I feel sure that the number of cases arising from the interpretation of the clause "arising out of or in the course of the employment" will be even less in future than at present because of the widening of this definition in this Bill. However I think that it is this type of disagreement which is mainly worrying Senators, and that is, the question of the interpretation of whether or not the injury comes within the scope of that clause. While I think that these cases will be infrequent I cannot, of course, say that no such cases will arise, so I am prepared to consider between now and the Report Stage of the Bill an amendment permitting recourse to the courts on a question of law which may arise in determining whether the accident arose out of and in the course of the employment. But I remain convinced that the system proposed is adequate for the normal type of appeal and that it will be as satisfactory as any system of appeals could be.
It is good to see that we are not always wrong all the way all the time and that the Minister has now as a result of the discussion and the debate made some concession to what has been said in the course of the debate on this amendment. Anybody who looks at section 4 straight away and who looks at section 3 as to what are employments and what are accepted employments and so on must immediately see that there will be clear cases within the code and clear cases outside it, but then there will be the borderline cases where it would take quite a deal of legal knowledge, which I think the Minister would concede is necessary, to determine these things.
I remain unconvinced by anything that the Minister has said that even this measure that he proposes to concede is sufficient, because what we are talking about here is not the capacity of trained officials of the Department of Social Welfare to assess various things. What we are talking about is their independence, their absolute and utter independence of whether they take a series of decisions which may result in a particular type of situation which might or might not be displeasing to the Minister. The person who decides these things finally and creates the precedent should be entitled to do that without having any regard whatever to what the departmental or Ministerial repercussions to those decisions are going to be. This kind of independence you get from a judge or an independent tribunal, but this kind of independence you cannot be sure of getting from an Appeals Officer who may say "Well, the Minister said so and so in the course of the debate and I feel that perhaps it might not be the right thing to do. This was not what was intended", though he might come to the conclusion that that was what the law says.
I have a recollection, and I am sure the Minister will know the case, of a matter that went to the Supreme Court where one of the Minister's Appeals Officers, when he was dealing with the case before him, instead of deciding on the evidence before him produced a letter from the Department of Finance and said "I have a letter here which says that you are insurable and I am bound by the letter of the Minister for Finance." Of course, the Supreme Court had a lot of things to say about that. That was an application by an Appeals Officer of his statutory responsibilities and duties, and that is the kind of thing that one is always likely to find where you have a civil servant who has not got that breadth of view and wide experience of members of the Judiciary, who are one day dealing with criminals and the next day with people on the Chancery side, and the next with people who are disputing a right of way, and with all the knowledge of human nature in all its varieties coming before them, upon oath. They are well able to decide who is genuine and who is not. That is the great advantage of the judge of the Supreme Court or the Circuit Court, and, indeed, of our juries where you have 12 men in the ordinary course making up their minds on what is the likelihood of the situation.
The Minister thinks that one swallow makes a summer and tells us of the court case—I am very glad he did—where Deputy Kyne brought to his attention that perhaps one junior Minister and inexperienced judge — I would love to know the names—overlooked a particular convention. That is uncommon, let it be said straight away, and the fact that that kind of thing happens does not invalidate in the slightest degree all the arguments made here in favour of an independent tribunal. Equally I could say that some of the Minister's Appeals Officers are rogues and knaves, because I know of a case where an Appeals Officer decided two cases in Mayo — the solicitor who told me this was not a member of the Fine Gael Party— against two appellants on medical evidence that he had never heard. He heard neither of the two doctors on behalf of the fellows who were making the appeal. It was the same solicitor who asked me why we and the trade unions were letting this Act through. That was wrong. I say that the Appeals Officers in the Department of Social Welfare are unfit for the purpose. That does not mean that the Appeals Officers are in dereliction of their duty as the Minister tries to suggest the courts have been incompetent and unqualified because he portrays one case out of thousands.
The truth of the matter is that many workmen's compensation cases were decided, I am glad to say, in favour of the workmen because judges took the broader view from their knowledge not alone of workmen's compensation cases but of a wide variety of cases which come before them from time to time. I know the Department of Social Welfare have people with different kinds of complaints and they are treated in that impersonal way. It has been said that the system is inflexible and impersonal and has worked to the complete satisfaction of the injured population since it was introduced. They will get that all right. They will just be a name on the top of a form with a specified injury and that will be all.
I am not prepared to entrust the wellbeing and the livelihood of any workman in this country finally to the determination of a person in that category. Indeed, in a publication of the Minister, of 1960, with regard to social welfare injuries, it says, on page 28, that the Circuit Court is the sole authority for determining disputes. That is not the fact. The Supreme Court is the authority for finally determining them and the Circuit Court could not, therefore, be said to be the sole authority. Although the Minister says he will introduce an amendment to enable determination as to whether a man was injured arising out of, or in the course of his employment, I do not feel the slightest bit happier for the half loaf he is giving. There are some people who are neurosthenic and some people will say that they should work. There are those who feel that those people should not get compensation but the courts have come to the aid of those people and said that neurosthenia is as much a disease as a stiff knee. They are given compensation. I am quite sure that such people who have to appeal to an appeals officer appointed by the Minister will not fare as well under this code as they did under the workmen's compensation code which we are repealing under this Bill.
We all accept that judges in any court, even the Supreme Court, are not infallible but at least the workman has always a good hearing in regard to this. He goes into the Circuit Court and his case is presented under a judge. If it is thrown out he goes off to the Supreme Court. If it is thrown out there at least he has the feeling that he has got a good hearing and that those people have been perfectly independent in the exercise of their functions. He can never feel the same way as long as his injury, imaginary or otherwise, comes before an Appeals Officer appointed by the Minister, with or without assessors.
I have listened to the debate on this amendment. I have listened very carefully to the Minister. I am afraid we are rapidly getting into an argument or conflict between the officials of the Department, the Appeals Officers, the lawyers and the judges. We should not judge it on this basis at all. I am quite prepared to accept the good faith and integrity of the people dealing with this in the Department. I said so when speaking on the Second Reading. Our difficulty here is that this is a scheme which will be administered by the Department. The first judgment will be made by the Department. If the person is not satisfied with that he goes to another person in the Department. We in the trade union movement and the Labour Party do not think that is quite good enough. We look at the position and see that here is a drastic change in this part of our social welfare system. We are bringing our principle into line with that which obtains in Great Britain and Northern Ireland.
The system in operation in Great Britain and Northern Ireland is in agreement and co-operation with the trade unions. The situation there is largely as laid down in our amendment. That is the purpose of our amendment. We cannot quite see the reason for the Minister's objection to this amendment. We are bringing the law generally into line with the position in Great Britain and Northern Ireland and I would, therefore, appeal to the Minister to look again at this matter. I could not withdraw the amendment on the basis of the very limited promise the Minister has made up to now, that is simply to allow an appeal to a court of law on the interpretation, if I understand the Minister rightly, of whether an accident arises out of, or in the course of the employment. That is rather too narrow a course for this problem. I do not want to start another debate. I hope the Minister will tell us that he will look again at this and that he will go a little further, between now and Report Stage.
I would ask the Minister to have a second look at this matter, not because I think that any particularly wrong decision would be given under the system envisaged by him but because I think it is particularly difficult to show to individuals and to the public that a somewhat wrong decision may not have been taken. I want to see that not only will justice be done but it should be clearly shown that justice has been done. I am afraid that particular point would hardly be met under the system envisaged by the Minister. A civil servant is persona non grata in this matter. We may as well be straight about this. I have no quarrel at all with the Department of Social Welfare or with the Minister. I find all of them most reasonable but I very often have great difficulty in proving to the public that these officials happen to be right, and it is there I should like to take up the matter.
Workers have a legal right to go into the courts and I wonder whether it would be judicious or proper at all to take these rights away from them. That is what is being done. We cannot deny the fact that no matter what type of deciding machinery the Minister will set up these people will still have a right in Common Law to go to the courts. If there is great conflict of opinion in connection with the two decisions in this matter then the Minister's decision begins to fall down.
The only reason I intervened in this debate at all is that I meet so many social welfare cases that I should like personally to be in a position when a decision is given to stand up and give a clear indication as to the rectitude of that decision. If a decision is not given and brought out in the open, it is difficult to get the public to accept it. I do not believe for one moment that any civil servant would be biased one way or the other against an injured workman. I have no reason in the world to believe that any civil servant would be so biased and that goes from the Deciding Officer upwards. The unfortunate thing is that these decisions are given in extraordinarily strange language and the public have to have it interpreted for them. They are given this but we often find from the type of Civil Service jargon in which these decisions are couched that ten different hob lawyers can find that ten different decisions have been given. That is a very important point and a very important matter.
While I am nine-tenths of the way, probably a little bit more, with the Minister it is just to get that matter cleared that I speak at all. No matter whether a decision in the open court is right or wrong the public have to accept it and the Minister cannot be blamed for it. Unfortunately, when a decision is given by an official of the Minister, who is a completely free agent and in 99 cases out of 100 the more competent because he is an expert in this field, his decision will be questioned and the court's decision will not.
I think, therefore, that there should be some extra latitude given in connection with this matter and I would ask the Minister to have a second look at it. I do not believe that it will have any real practical effect but it will have an effect on the public mind. People often believe that proper medical evidence is not given in these cases, that a lot of it is heresay or is by way of certificates and there is no sworn evidence in these cases. It may be that a doctor would have to come along who did not know anything about the case except just what he got from a cursory examination of the individual. I think the Minister should go further on the road and if he just goes far enough to make his decision acceptable to the public I am prepared to accept the type of tribunal he wishes.
I should like to reply to one point the Minister made. He endeavoured to justify the extent to which he misled the Dáil and the Seanad in this matter rather than to apologise for it. That is a pity. His justification was extraordinarily unconvincing. He repeated quotations of a highly selective character, an obiter dictum as the Minority Report and purported to put forward the thesis that these remarks, taken out of context and quoted selectively, overrode the clear specific conditions of the Minority Report. The Minority Report of any commission contains arguments and discussion, points made for and against and then it comes down to recommend something.
I have never before heard anyone, Minister or otherwise, suggest that the recommendations of a commission are overridden by remarks of a casual character made elsewhere and carefully selected by the person quoting them, that they take precedence and that you could completely ignore what the commission recommended. The fact is that the commission clearly recommended this appeal. They state specifically "We recommend, therefore". It is in italics. When they come to finish a discussion they give their recommendations in italics. They have discussed the matter and they state what it is they recommend should be done:
We recommend, therefore, that the existing system of workmen's compensation be abolished and replaced by the Social Insurance Occupational Injuries Scheme set out in Annexe 1 to Appendix XIII of this Report,...
There is no qualification about that. There is a qualification on the question of finance:
but financed by contributions fixed quinquennially and sufficient only to meet estimated out-goings during the following five years and create a reserve to meet casual or unexpected fluctuations from the normal during that period.
Other than that, there is no qualification and the scheme put forward is one which was devised by the Irish Congress of Trade Unions and which the majority of the Minority Report signatories modelled on the British scheme devised by the Irish trade unions but modified by the deliberate insertion in capital letters of the words:
APPEALS WILL LIE FROM THE DECISION OF THE LOCAL TRIBUNAL TO A JUDGE OF THE CIRCUIT COURT SITTING AS A COMMISSIONER.
They went to enormous trouble about this. They changed the British scheme and put it in capital letters and made sure there was no mistake made. Then they said they recommend that this scheme be adopted with one qualification only about finance. They could not have made their position clearer. That any Minister can pretend that he believes the scheme they drew up is nothing and that all that matters are selected remarks of the Minority Report as taken out of context is less than honest. I think the Minister made a mistake in this respect.
He is brazening it out still.
It is possible for all of us to make mistakes but when we do we apologise for them. But, making the mistake and trying to cover it up with a dishonest statement, ignoring the Commission's recommendations completely and taking odd phrases out of the Report, is a tactic which brings no credit on the Minister or on the Government he represents.
I feel the Minister must consider the matter further. So far, nobody has had a word to say about the Minister's proposal with the single exception of Senator Honan. I do not recall anybody else on any side of the House saying anything in favour of it. The Minister has against him the majority of the Commission, the minority of the Commission and the Irish Congress of Trade Unions. He has against him the International Labour Office, Convention No. 23 of which sets out the form of administration that is desirable where you have representatives of employers and workers, possibly with a judge. He rejects the practice in six out of seven non-Communist countries. He rejects the opinion of Fine Gael, of the Labour Party, of his own front bench and of other speakers and writers. He resists all pressure to take out a feature of the scheme which nobody seems to be in favour of but himself and, possibly, Senator Honan.
I suppose other Senators will have to vote in favour of it when the time comes but if any of them are in favour of it it would be interesting to hear them. I cannot remember any case in which there was such unanimity of opinion or practice. The Minister goes against the opinions of employers, of employees, of members of his own Party and I cannot understand why he persists in this. While he has made an apparent concession, I think he should go further and make a full concession. He did not justify why he should agree to go half way but not to go the full way. He did not give any good reason for acting in this way. The fact that a decision of a Deciding Officer should be subject to appeal in one respect but not in the other has not been justified. If a Deciding Officer can make a mistake in one part of his decision surely he can make a mistake in the other half, in the matter of the amount of compensation. To say that a mistake can be made in one part and not in the other is amazing. It is the practice of virtually all other countries, it is the opinion of anybody who has written or spoken on it, that an appeal should lie without qualification. The Minister, having gone some distance, should have gone the whole way and not stand on dignity. The case has been made overwhelmingly. The Minister has no support in the stand he is taking. He should accept the fact that an honest mistake has been made—perhaps the Minority Report has been misinterpreted—as to what the Irish Congress of Trade Unions wanted. He should admit that and agree with what everybody who has spoken on it has suggested should be done—with what is being done in six out of seven non-Communist countries.
I do not know if there is any point in saying more. I have made my position clear. This thing referred to as the legal right of workmen under the present system to go into the courts could more accurately be described as the legal necessity either to engage in or threaten litigation to establish their rights. Up to now, compensation has been a direct right of the injured workman and disputes that have arisen have been between two individuals, employer and worker. That has been settled by court adjudication. The position in future will be entirely different. Persons will be paid as of right and the payments will come from a fund built up by contributions from employers. Functions of Deciding Officers and Appeals Officers will be to see that workmen get what is due to them from this fund and not to keep it from them.
Unlike employers and insurance companies under the existing system, these officers will have no personal interest in the result of claims and there is every reason to assume that they will be completely just and impartial in arriving at their decisions. I am, therefore, convinced that the system of Deciding Officers and Appeals Officers which has served us well in the past in regard to social welfare matters will be quite adequate to deal with this matter.
The concession the Minister has made with regard to allowing an appeal to the court on the point of law as to whether an accident arose out of a workman's employment goes as far as is necessary to meet the case made by Senators. I spoke in favour of this Bill on the Second Reading and I cannot say that anything I have heard today has changed my mind on the general principle. The strict question of whether the injury arose out of employment could raise questions undoubtedly that could usefully be decided in a court and I am glad the Minister has agreed to consider that question again. Once that has been dealt with, with the best will in the world I am unable to see the point made by Senators today.
The whole question of what used to be in our workmen's compensation code is being put into this social welfare system. For years past this system of Deciding Officers has dealt with blind pensions and disability pensions which raise the same issues that will come into question in the matter of compensating injured workers. The same questions—the degree of disability, the degree of blindness—have been decided for years and apparently during the years these matters have been dealt with to the general satisfaction of workers and their representatives. Under this legislation, these issues will be dealt with by the same people and once the basic question of law as to whether an accident arose out of a man's work has been taken away and where necessary dealt with by a court, it seems to me the other matters—the degree of disability and the amount of compensation—come within the same general questions of principle as are already dealt with under the system. There may be technical difficulties and I could understand if Senators were to say the whole social welfare code is wrong, that it is immoral, that it is contrary to civil liberty, but I cannot see any point in saying it is wrong in this case and not wrong in matters of disability or blindness.
We are taking away an existing right.
The proposition is that a worker may be treated unjustly, that he will never feel he has been properly treated because he has been dealt with by civil servants. People who suffer from blindness or from other disabilities or their trade unions do not feel so aggrieved. The system has worked well until now in a similar field and I cannot see that either in principle or in any way anything wrong is being done. Once the question of law that appears to have been involved has been taken away, we are back in a purely social welfare field. With the best will in the world, therefore, I think Senators are making a mountain out of a molehill. They are objecting to it in this case; they are saying that the workers are being badly treated in this case and the entire social welfare code should be changed. There is no reason at all for changing one section of it and not another.
We have to act within the provisions of the Bill.
Senator Yeats made a better case than the Minister but I still press amendment No. 3.
Amendment put.
The Committee divided: Tá, 18; Níl, 24.
Tá
- Brosnahan, Seán.
- Carton, Victor.
- Crowley, Patrick.
- Davidson, Mary F.
- FitzGerald, Garret M.D.
- Fitzgerald, John.
- Jessop, W.J.E.
- McDonald, Charles.
- McHugh, Vincent.
- McQuillan, Jack.
- Malone, Patrick.
- Murphy, Dominick F.
- O'Quigley, John B.
- O'Reilly, Patrick (Cavan).
- O'Sullivan, Denis J.
- Prendergast, Micheál A.
- Rooney, Éamon.
- Stanford, William B.
Níl
- Ahern, Liam.
- Boland, Gerald.
- Brennan, John J.
- Brown, Seán.
- Eachthéirn, Cáit Uí.
- Egan, Kieran P.
- Farrell, Joseph.
- Fitzsimons, Patrick.
- Honan, Dermot P.
- Killilea, Mark.
- Lenehan, Joseph R.
- McGlinchey, Bernard.
- McGowan, Patrick.
- Martin, James J.
- Nash, John Joseph.
- Ó Donnabháin, Seán.
- O'Kennedy, Michael.
- O'Reilly, Patrick (Longford).
- Ormonde, John.
- O'Sullivan, Ted.
- Ryan, James.
- Ryan, Patrick W.
- Ryan, William.
- Yeats, Michael.
Tellers:— Tá, Senators Murphy and McQuillan; Níl, Senators Brown and Farrell.
Amendment declared lost.
I move amendment No. 4:
In page 5, to add to the section a new subsection as follows:
"( ) (a) 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 payable under this Act.
(b) 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.
(c) Appeals under this section shall be heard in chambers and shall not be subject to further appeal to any other tribunal, court, or person."
Amendment, by leave, withdrawn.
Question proposed: "That section 1 stand part of the Bill".
Here we are enacting a new code of legislation which, I grant, is to be welded into and become part of the present social welfare code. There is one matter to which I should like to draw the attention of the Minister, and perhaps he might be able to consider it between now and Report Stage. This is a kind of legislation by reference. Subsection (8) provides:
The definition of "increase" contained in subsection (1) of section 2 of the Principal Act is hereby amended by the insertion after "or section 27" of "of this Act or under section 10..."
—and so on. I wonder whether it would be possible to take the amendments affected by this subsection and reconstitute the lot and put it in as a separate section. The same applies to paragraph (b) of subsection (8).
Here we are dealing with the whole code related to occupational injuries and I think it is desirable, whether it is the Minister for Social Welfare, or the Appeals Officers, or the Deciding Officers, that they should have in one Act all that relates to the particular case with which they are dealing. I urge the Minister to consider doing this before Report Stage in any of these cases occurring in the Bill. It would make for easier administration of the Act, and a better understanding by all concerned.
There is a definition of "increase" in section 2, subsection (1) of the Principal Act. This definition is being extended to include increases in occupational injuries benefits in respect of adult and child dependents, in respect of unemployability, constant attendance and approved hospital treatment. The existing definition refers to increases under sections 26 and 27 of the 1952 Act. Including this amendment the definition will now read: "increase" means, in relation to any benefit, an increase under section 26 or section 27 of this Act or under section 10, section 11, section 12, section 13, section 14 or section 19 of the Social Welfare (Occupational Injuries) Act, 1966. If that were all put together it would be as clear as it could be.
It is a bit unfortunate.
It is an amendment of the existing Act.
I can see that.
Question put and agreed to.
SECTION 2.
An Leas-Chathaoirleach
The Chair suggests that amendments Nos. 5, 6 and 64 be taken together.
They are all related amendments. I move amendment No. 5:
In subsection (1), line 47, to delete "caused" and substitute "diagnosed".
Under the section a person who is injured after the appointed day will be entitled to compensation under this Act. Subsection (1) provides:
Subject to the provisions of the Acts, every person, irrespective of age, who, on or after the appointed day, is employed in insurable (occupational injuries) employment shall be insured under the Acts against personal injury caused on or after the appointed day by accident arising out of and in the course of such employment.
An injury may be caused before the appointed day, but it may not be diagnosed until after the Act comes into operation. In that case a person who has sustained an injury will be entitled to benefit only under the existing workmen's compensation Acts. Take the case of a man who is found to be suffering from an injury which was caused before this Bill comes into operation but which is not diagnosed until afterwards. The amendment seeks to give him the same benefits as if the injury were, in fact, caused after the Social Welfare (Occupational Injuries) Act came into operation. There are cases, and there will be cases, where an injury may have occurred as far back as five or six years, and it may only be lighted up by some constitutional change in the workman. There are very often cases of that kind especially in relation to back injuries.
I have known the case of a person who was working on the railway and fell. He got TB and he was in hospital for five or six years. This was in the old days when TB was not as readily cured as it is nowadays. It was found that the TB from which he suffered was caused by the injury which lighted up the latent TB that was in him. That was the medical evidence. That case went to the Supreme Court, if my recollection is correct, and it was found that he was entitled to workmen's compensation, and he got back pay for the five or six years. I think that case was Quinn and CIE.
There have been other cases in my experience of men injured as far back as 1959 and their cases coming on in 1965. An injury took place but did not manifest itself in incapacity to work until many years later. I think we should benefit that kind of case. We should give them the benefit of this Bill. We all agree that the provisions of this Bill will be much more beneficial in terms of cash and other compensation that will be available, than what is available under the present unamended workmen's compensation code. Therefore, I urge the House and the Minister to accept this amendment, and to give the benefit of this Bill to persons with injuries diagnosed subsequent to its coming into operation, even though the injury was caused before the coming into operation of the Act, and latent until after the passing of the Bill.
The difficulty here arises largely because of the fact that a lot of things are being done by regulation rather than being included specifically in the Bill. If Senator O'Quigley will look at section 23, subsection (4), he will find that "provision may be made by regulations for determining the time at which a person is to be treated for the purposes of the Acts as having developed any disease or injury prescribed for the purposes of this section, and the circumstances in which any such disease or injury is, where the person in question has previously suffered therefrom, to be treated as having recrudesced or as having been contracted or received afresh."
It is intended that regulations will be made providing that an injury or disease will be deemed to have been caused on the first day of incapacity from the injury or disease. I think that that will cover the type of case which Senator O'Quigley has in mind. On the other hand, if it is a recrudescence of an incapacity from some injury or disease that occurred before the coming into operation of this Act, then it is only right and fair that it should fall to be dealt with under the Workmen's Compensation Act, because the employer will have already incurred liability in respect of this particular injury. I do not think, in fact, that the Senators who put down this amendment intended that liability should be taken over by this fund in such circumstances. The intention is, as I said, to make regulations providing that the injury will be deemed to have been caused on the date on which incapacity is first established.
I am somewhat re-assured to hear that there is this provision in subsection (4) of section 23. I am wondering whether or not the Minister has power under the subsection. I would have thought that that dealt with injuries that had occurred previously and not recrudescence of a disease or any injury, and only for that kind of disease. What I am inclined to think is that in subsection (4) we are dealing with the kind of case where a person suffers from dermatitis that clears up and is free of it for three or four years and then perhaps engages again in the kind of employment or uses the substance which causes a recrudescence of dermatitis. That could be said to be an old injury. One could take a case of arthritis, where progressive arthritis incapacitates the workman. I am wondering what his position will be if he has taken a lump sum under the Workmen's Compensation Act in full and final compensation for his injury, and then when the money is perhaps invested or spent, will he be entitled, if his arthritis bothers him to the extent that he is completely incapacitated from work, to get compensation under subsection (4) of section 23 of this Bill?
I am afraid he would not. If the liability for the injury has been fully determined by the acceptance of a lump sum under the Workmen's Compensation Act, then he would not be eligible for compensation under this Act for incapacity arising out of the same injury; but if he developed incapacity after the Act comes into operation, and even if it was quite clear that this incapacity arose from some injury or disease suffered or contracted before the coming into operation of this Act, his case would fall to be dealt with under this Act. I could not reasonably be asked to establish liability to pay benefit under this Act for something which was already covered by the Workmen's Compensation Act and for which liability had already been established against the employer on whom the liability rested at the time the injury was contracted.
Amendment, by leave, withdrawn.
Question proposed: "That section 2 stand part of the Bill."
Would the Minister say what subsection (3) is intended to cover?
It is designed to prevent civil servants who are covered by the Bill from having a double right to benefit under the Bill and superannuation payments in respect of the injury as well.
Would the Minister say whether this applies to temporary staff, unestablished staff, who get an allowance or a gratuity, or whether it will apply to all civil servants who are from the point of view of income within the code? Could the Minister indicate what category is concerned, whether it is unestablished messengers and postmen and people like that?
An unestablished civil servant who is not entitled to superannuation?
Yes.
I do not think so. I do not want to be too definite but I think it only applies to civil servants who are eligible for superannuation.
Some temporary civil servants are entitled to gratuities, I understand. It seems to me that this wipes out the right of a civil servant entitled in the ordinary course to superannuation, pension, and lump sum on retirement. I do not think that that is what would be intended, but if it is limited to the type of person unestablished who would only be entitled to a lump sum or some small amount on retirement——
Who would be entitled to a lump sum? Where a person is entitled to a lump sum or a pension under the superannuation code it is obvious that he cannot get both. If he is also covered by occupational injuries insurance this provides that the gratuity or allowance under the superannuation code will not be payable.
I could understand it if it said that he should not be paid both, but that is not what this section appears to say. Supposing a man were entitled to, say £6 occupational injuries insurance, and if he retired he was entitled to £9 pension, subsection (3) seems to me to say that if he is getting occupational injuries insurance he will not get the £9 superannuation allowance. That is to say, it reads to me that if he got it one way he cannot get it another. In other words, this is the usual provision in legislation which provides for double payments.
I shall have to clear that up for the Senator before Report Stage. I think it refers to section 1 of the Superannuation Acts and not to full superannuation. I will clear it up before Report Stage.
Question put and agreed to.
SECTION 3
Question proposed: "That section 3 stand part of the Bill".
There are a number of things which are somewhat puzzling to me. Perhaps I might deal with them one by one. We refer to Part I of the First Schedule of the Social Welfare Act, 1952, for the purpose of determining what is insurable employment. That includes a variety of employment. It refers to employment in the State under any contract of service, written or oral, employment as master or a member of the crew of any ship registered in the State, employment in the civil service of the Government— I think that has been amended—employment as a member of the Defence Forces, employment under any local or other public authority and a number of other categories of employment.
In Part II of the First Schedule of the 1952 Act there are certain employments which are not insurable employments under the Social Welfare Act. It seems that in subsection (3) we are adding to Part II certain employments which will not be entitled to insurance under this new Occupational Injuries Act. I must say when I read the Bill first, not having the Social Welfare Act before me, it seemed to me that what we were doing in regard to Part II of the First Schedule was bringing in all those people mentioned in (a), (b), (c) and (d) under the ambit of the Occupational Injuries code of insurance. I found, to my astonishment, after looking it up, that Part II contains the employments which are excepted from insurable employment under the Social Welfare Act so that the net result of it is that the persons mentioned in (a), (b), (c) and (d) will not be entitled to occupational injuries insurance under this Act.
Perhaps the Minister might be able to clarify the position as regards members of the Defence Forces. I suppose occupational injuries there could be said to be the norm of the employment for which they would be entitled to pension under the Pensions Act. I do not know what is the position of a soldier who is attached to a transport division and who is injured while repairing a truck. Should he not be entitled to occupational injuries insurance or does he get better treatment in the form of injuries insurance under the army code of regulation or whatever Pensions Act applies to him? Could the Minister give us some information on that?
I now come to employment as a member of the crew of a fishing vessel where the employed person is wholly remunerated by a share in the profits or the gross earnings of the working of the vessel. That seems to me to exclude anybody who owns a boat, which is perhaps financed by An Bord Iascaigh Mhara. If they share in the profit, if it is only a small one, it may be less than what might be the wages of persons in the boat, they will not be entitled to any occupational injuries. I do not quite follow why they should be excluded. The next category of people we are excluding are people employed otherwise than under any contract of service or apprenticeship. I do not know what category of people are particularly involved in that?
Subsection (d) refers to employment under any local or other public authority in the execution of any contract for services. It seems to me if you employ a medical doctor as a house surgeon in a hospital that would be a contract for services. If a local county council employs him at £10 or £15 a week that is a contract for services. There would be a different kind of contract for nurses. I do not know whether they would come into that category or not. Perhaps the Minister would clarify that. At any rate if a medical doctor, a student just out of his training, or while still in his seventh year, just before he is qualified, is employed in the hospital and is only earning £15 or £16 a week it seems to me that if he gets injured he will not be entitled to occupational injuries insurance but if the matron of the hospital, who would be earning much more than he is, was injured she would be entitled to occupational injuries insurance. It seems to me that if you are employed in a hospital and are injured then you should be entitled to occupational injuries insurance. The disability in both cases might be exactly the same. It might be a broken leg. I do not see why one person should be entitled to occupational injuries insurance and the other not.
With regard to members of the Defence Forces the position is that there is provision for pensions for soldiers who are injured in the course of their duties. I am not in a position to say whether in all cases this is better than what would be provided under this Bill. I presume it is something comparable at any rate and they are not covered by workmen's compensation at present. In view of the fact that this provision for them is there there did not seem to be any point in bringing them under this Bill now.
I can quite see there could be cases of hardship with regard to people who are what are generally known as share fishermen but I cannot say how this can be avoided. They are not, strictly speaking, employees and could not very well be brought under the scope of this Bill. With regard to the case of medical students being employed in their final year the position there would be the same as anybody else. If there is a contract of service they will be covered and if there is not a contract of service they will not be covered.
In relation to medical students, as I understand the position—I do not see any of my colleagues around to support me in this—if an ambulance driver is employed with a health authority, that is a contract of service. If a carpenter is employed in the hospital, that is a contract of service. There is a distinction drawn between that in our legal system and a contract for service. If you employ a solicitor, a doctor or any professional person or an expert of any kind, then this is what is referred to as a contract for service. I do not know whether nurses fit into the first category or the second category. Are nurses employed under contract of service or contract for service?
If they fit into the first category we ought to be clear about this because we are accepting these people. This is a case in which we are pushing people out of benefit. We must be quite clear whether or not nurses are within this occupational injuries code. I want to know why we do not include physiotherapists who may be employed under contract for service, the radiographer and the pathologist, all of whom may be in receipt of the same amount of money, or less, as nurses employed under contract of service. This is a very important matter because these people are being excluded. It is a different thing where we are including these people within the scope of the Bill. There must be some significance in putting in here:
employment, which is neither wholetime as may be defined in regulations nor under contract of service,...
With respect to the share fishermen, I think when a code of legislation of this kind is being enacted we ought not take merely a departmental view of these things, and that has been going on in our legislation to the detriment of people and of industry, in a number of instances one could not mention. As I understand it, it is difficult to effect any large-scale improvement in the fishing industry. I do not see why, if that be the case, that we ought to single out share fishermen for unfavourable treatment under a code of this kind. I can quite see the Minister is not taking in farmers, or the independent window cleaner. If the window cleaner is employed by a company he is covered but one who likes to go and come as he likes is not covered. If those two window cleaners are working on opposite sides of the street and the two fall, the fellow who is employed gets insurance but the fellow who is self-employed gets nothing.
I think when we are taking the trouble to exclude people like share fishermen we ought to have some regard to the difficulties of that particular industry. In legislation of this kind to make their lot easier—there are not that many of them to affect vitally the statistical working out of the code—we ought to give them whatever benefits are going. I suggest to the Minister that there is a way of bringing in share fishermen. Under the present code the employer has to pay a fixed sum per week and I would suggest if we are going to have this scheme as part of the social welfare code we apply by analogy what is being done at the present time by way of voluntary insurance.
If you are an insured contributor under the Social Welfare Acts as you exceed the income limit, or as in the case of a single woman who gets married and is no longer insured, she can continue to be a voluntary contributor, and that brings certain benefits in widowhood. It brings the widow entitlement under the Health Acts as an insured person. Similarly, when people become voluntary contributors they pay twice the rate the ordinary contributor pays. It seems to me that if we have people like the share fisherman, or my independent window cleaner, he should be entitled to become voluntarily insured under this Act and pay twice as much, or two and a half times, or whatever you work out actuarially, and become insured under this Act. There is no point whatever in saying to one person simply because he is more independent than the next that if he gets sick that he can go and lump it.
In the case of share fishermen, and, indeed, of all persons who are normally employed, paying a voluntary contribution of whatever is the actuarial amount, taking the figure of twice the contribution payable under this Act for an employee would be a much more sensible arrangement and would not greatly interfere with the funds.
The Minister has not dealt with paragraph (c)—employment as an outworker. I do not know what that means, but I do urge the Minister, in relation to, first of all, the members of the Defence Forces, that he should make inquiry and perhaps give us some information as to what the position is in the Defence Forces. If a mechanic employed by one of the garages here in town is injured he is paid, say, £15 a week and he gets, say, £7 10s. under this Bill. If you have a mechanic in the transport division in one of our barracks who receives the same injuries I should like to be assured that the soldier mechanic receives the same occupational injuries insurance as the civilian mechanic. I do not say that in any derogatory sense but I am not convinced by the Minister's argument that the members of the Defence Forces have their own code. We all know that if teachers, civil servants, members of the Gardaí and such people are injured in the course of their employment they are paid their full salary for the first six months, then one-half for the next six months and then it terminates. But, notwithstanding the existence of these somewhat favourable conditions of employment, they are entitled to be covered by this Bill. In fact, they are within the Bill. Paragraph (3) of Part 1 of the First Schedule brings them in as civil servants in the employment of the Government.
I do not see any difference between the civil servant who has his own code and his own conditions of employment and the soldier. I do agree that if the soldier is on active service and is injured different considerations apply but the soldier who is doing the ordinary kind of routine that he does when he is not on active service should be entitled to at least as good conditions as the civil servant, or the teacher or the guard, and I should be glad if the Minister would look into that matter and see what is the amount of compensation for members of the Defence Forces if they suffer from the same kind of injuries as their fellows in civilian employment.
With regard to the question of nurses and similar people they are already insured under the Social Welfare Acts if they are employed under a contract of service. It may be taken that they are already in.
With regard to the question of share fishermen Senatory O'Quigley will read in subsection (3) (b):
employment, which is neither wholetime as may be defined in regulations nor under contract of service, as a member of the crew of a fishing vessel where the employed person is wholly remunerated by a share in the profits or the gross earnings of the working of the vessel,
In other words, people who are wholly remunerated in this way will not be excluded.
We are excluding employment which is neither wholetime nor under a contract of service.
Yes. Wholetime employment as a share fisherman will be eligible for occupational injuries benefit. That is going somewhat further than was recommended. The Majority Report recommended only that those under contract of service would be included. We are including those under contract of service and those whose employment is wholetime.
And wholly remunerated——
Not necessarily wholly remunerated. The employment excluded is employment which is neither wholetime nor under contract of service.
There is the case of a person who is wholly remunerated as a share of the profits of a fishing vessel. That employment is neither wholetime nor under contract of service.
Not wholetime. If he is not employed wholetime or under contract of service he is out. If he is employed wholetime he will be in.
Therefore, the share fisherman who is only part-time is out. That is not so bad. This brings me back to the anomaly. Here we are letting in a wholetime share fisherman and to all intents and purposes he is self-employed. But we are not allowing in other self-employed persons. Take my window cleaner. I do not know why we should do that. What we are trying to provide in the Bill, once one accepts the broad principle on which it is framed, is fair compensation for injuries that occur to people in the course of their employment while pursuing their particular occupations. The very title of the Bill mentions "occupational injuries". I do not see any logic in saying that because a person is an independent contractor, a self-employed person, he should not be entitled to compensation if he has the same family, the same responsibility. I do not know on what principle that distinction is being made. It does not seem to be very logical.
If the window cleaner is employed under contract of service he is in. On the question of voluntary insurance, Senators may take it that I am personally in favour of extending the scope of voluntary social insurance to as many people as possible, but I would not be prepared to do it in regard to a single, isolated aspect of the social insurance code. I think it would be better dealt with on a global basis, to examine the feasibility of extending whichever of the social insurance schemes would appear to be applicable to self-employed people. I am investigating the feasibility of opening some of the social insurance schemes on a voluntary basis to people other than those who are compulsorily insurable at the moment. I am investigating the feasibility of extending this new aspect of social insurance to such people but I do not want it done piecemeal.
Before leaving the section, could the Minister throw a little more light on this matter of a contract for service? This is the kind of legal concept that has given rise to difficulties. There is this question of whether a person is employed under a contract of service or a contract for service. It is the kind of thing even the most skilled Appeals Officers might not be able to decide correctly. Would the Minister indicate, if he is in a position to do so, what the position is so that we may be able to consider it for Report Stage? What categories of persons are employed under contract for service? Could the Minister give any indication of the kind of persons involved? Could he give us his interpretation?
I shall do that on Report Stage.
Then it may be too late to put an amendment down.
An Leas-Chathaoirleach
It is too late tonight. The Minister may wish to leave it until the morning.
I should like to revert to the position of share fishermen and to inquire if there is any clear definition of wholetime share fishermen. What exactly does the Minister mean when he says wholetime as against part-time? I realise fishermen have conditions of work far removed from the nine to five atmosphere, far removed from the 40-hour week. Share fishermen might appear to be included in the provisions but in practice may be excluded unless we have some definition of what is meant by full-time and part-time employment. Is it a question of so many hours of work each week? Will a similar standard to that applicable in the Civil Service and other employments apply to share fishermen? With the best intentions in the world we might be excluding fishermen who should be included.
There already is a definition in regard to insurance for unemployment benefit. Perhaps I should refer to this question of outworkers. I do not know if Senator O'Quigley has the Appendix to section 3——
Section?
The First Schedule to the Social Welfare Act, 1952.
Yes.
There is a definition there of outworker:
.... a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, or repaired, or adapted for sale in his own home or on other premises not under control or management of the person who gave out the articles or materials for the purpose of the trade or business of the last-mentioned person.
These people would not be insurable.
We are excluding those. There is just one further matter —subsection (4).
Progress reported; Committee to sit again.
The Seanad adjourned at 10.05 p.m. until 10.30 a.m. on Wednesday, 8th June, 1966.