I thank the Minister for coming here this evening. I will be addressing him as Minister for Marine with overall responsibility for the welfare of fishermen. Even though I am acutely aware that some of the points I will raise will not be directly in his realm, I would ask him to contact his colleagues in Government and perhaps between himself and the Minister for Social Welfare they could rectify the anomalies I will be raising in the social welfare code as it pertains to share fishermen and indeed the income tax code as well.
Since mid-September the fishermen in Wexford have enjoyed no income at all. I accept they are probably no different from the skippers and deck hands and share fishermen generally throughout our coastline. For the purpose of being in order here this evening I have been asked to confine my contribution to the problems of the Wexford fishermen, but I reckon it is a national problem. Because of weather conditions mainly the share of the catch that has been available for the deck hands, for the share fishermen generally, has been nominal and there has been virtually no income in most cases to be shared out once the expenses have been deducted from landings for deck hands particularly.
Because of the situation share fishermen find themselves in they are not eligible for any social welfare support, benefit or assistance of any kind. As they do not come under the relevant codes they are also deprived of any supplementary welfare assistance from the health boards. Along the coast in Wexford with the concentration in Kilmore Quay there are dozens of families at the moment that are hungry and going without the essentials of life. They are trying to keep children at school, they have no medical cards — I do not have to reiterate that at this stage — they are trying to look after the basic needs of their families and are now facing into a very, very bleak Christmas. Their opinion is that the Minister has abandoned them. They do not distinguish between the terms of reference of the Minister for Social Welfare, the Minister for the Marine and the Minister for Finance. You are the Minister of State at the Department of the Marine, you represent the Minister for the Marine, and they look to the Department of the Marine, Roinn na Mara, to resolve what has been a chronic problem for some time now in relation to fishermen all around our coast.
A high degree of confusion exists at the moment and has for some time with regard to whether or not share fishermen are compulsorily insurable as employees for social welfare purposes. In 1986 there was a High Court judgment, the Director of Public Prosecutions v. McLoughlin, and that judgment held that share fishermen were self-employed, that they were co-adventurers, that they were partners. The Department of Social Welfare treats share fishermen as employees and states specifically under the Social Welfare Act that they are not self-employed. In fact, if they contribute to the PRSI code on a self-employed basis they will refund those payments. Consequently the fishermen and their families are falling between two stools. They have no insurance of any kind at the moment despite the fact that the law of the land is that everyone has to be insured. The tragedy of this case is that it has gone on for so long. There are hiccups in all systems, in all codes, from time to time but the inertia and the apparent lack of will to resolve the problem is what has brought this to a crisis.
Last year we had storms which caused a lot of damage around our coast and there were months on end when fishermen could not put to sea. But for the goodwill of co-ops who lent credit and local grocery stores who lent on the goodwill of the families concerned and of their sympathy and knowledge of the families concerned many familes would have been starving. I do not exaggerate. They can go nowhere bar to St. Vincent De Paul for help if it gets that bad and yet this State apparently cannot resolve the dilemma between the income tax code and the social welfare code given the present income crisis because of the weather we have had. I appeal to the Minister and to his colleagues in Government to immediately turn their attention to resolving the matter.
I think, and I am open to correction on this, that the first step must be a judicial review and to get an opinion whether the High Court judgment in 1966 referred to PAYE and PRSI and not just to the tax element, the PAYE element, as the Department of Social Welfare are insisting it did. There is a difference of opinion between different administrations in this State and as a result families starve and social welfare officers around the country and county clinics have to refuse support to families on the breadline. The Minister does not want that to happen and I do not want it to happen. It was never the intention of any Government in this country that this should be the situation and yet it continues unresolved.
The judgment in 1986 concerned itself with the principles involved in defining the status of share fishermen and was given in the context of PAYE-PRSI deductions. Following the judgment the IFO asked the Department of Social Welfare for its view on the matter. I know the Minister is familiar with this situation. The Department referred the matter to the Attorney General who took over one and a half years to reply. That needs an explanation in itself. In the meantime several skippers had opted out of the system of collecting PAYE and PRSI from their deck hands because no clarification was forthcoming. So the skippers had opted out on the basis that their deck hands were no longer employees. The eventual reply from the Department of Social Welfare based on the Attorney General's advice was to the effect that PRSI applies to all cases whether collected through the PAYE-PRSI system or not. Subsequently the IFO met the Department of Social Welfare for a general discussion on the matter. The Department insisted that as far as they were concerned share fishermen are considered to be employees for social welfare purposes irrespective of their status for other purposes. The IFO pointed out that independent legal opinion differed substantially on this point based on the High Court judgment. The Department of Social Welfare emphasise that they are only concerned with implementing the social welfare legislation and to that end they intended setting up a direct collection system with each owner. It was not concerned with the fishermen's status for other purposes and in the view of the Department of Social Welfare a person could be self-employed for tax while being an employee for social welfare purposes — self-employed under the income tax code and an employee under the social welfare code. I ask the Minister, how can any Government stand over such interpretation of the different codes? In the meantime the fishermen's families starve while we push the matter backwards and forwards between the Departments.
Last November a new statutory instrument was published. Since then the Department of Social Welfare has been communicating with owners, with skippers, and asking them to participate in a direct collection system. This has only created further confusion. In an attempt to clarify the situation the IFO met the Department of Social Welfare in March of this year. The Department merely expressed disappointment at the slow take-up of the direct collection system. Basically the Department repeated its assertion that all share fishermen are compulsorily insurable as employees under the Social Welfare Act even if they are considered self-employed under the income tax code. The IFO pointed out that independent legal advice held a contrary view and it appeared necessary to return to the High Court for clarification on this point. The IFO stressed that the matter had to be clarified and that it would be better to do it before further complication and confusion set in. Furthermore at the time it was pointed out that even with the utmost goodwill any owner who allows himself or herself to be deemed an employer for social welfare purposes could find it difficult to change his or her status for this or other purposes in the future.
In the course of the meeting the Department of Social Welfare stated that they would not allow share fishermen to avail of the general self-employed PRSI scheme, and should anyone have slipped through they would refund any contributions made. Subsequently, the IFO asked the Minister for Social Welfare for a meeting on the matter but it would appear that Social Welfare are confusing the method of collection of contributions with the underlying principle of whether an employment relationship exists. The crux of the matter appears to be whether the Minister has the power to deem somebody an employer when no such relationship exists. Independent legal opinion is that it would be ultra vires for the Minister to purport to treat as an employer a person who is not an employer in the legal sense. It would appear that the statutory instrument of November 1989 does no more than update the collection of unemployment contributions for those share fishermen, if any, who are in an employment relationship with the owner of a particular fishing vessel. As such the SI would be valid within its scope but it would not be correct to apply it to the owner of a fishing vessel who was in the same position as Mr. McLoughlin was at the time in relation to his own crew members.
The only way this confusion can be resolved is through the Minister's office pursuing the Department of Social Welfare to seek a judicial review. The IFO have to keep the interests of the skipper in mind as well as those of the deck hands. They are slightly on the fence on this matter. I do not mean that in any derogotary sense. They have to represent diverging views as to what is the best outcome. Can I ask the Minister to confirm to this House today that as a matter of urgency, given the very difficult weather and the very difficult economies that share fishermen have been experiencing, this whole matter will be resolved by the pursuit of a judicial review of the particular case so that we will have a clear interpretation of what is involved. If it is not resolved we will have fishing families along the coast, dozens in Wexford alone — I can name six in Kilmore Quay off the top of my head — starving or begging for credit from the local commercial houses that they have had to depend on over the years. It is not justifiable that this is the way we treat what we refer to as one of our major natural resources.
The Taoiseach, and the Government, had great hopes for the development Roinn na Mara, for the development of our fishing industry. We give lip service to the importance of this natural resource but the very basic issue of the proper treatment of the men and women who are running this particular industry has been ignored and is being ignored.
I am open to be advised by the Minister as to whether there is any line, other than a judicial review, we could pursue to bring to a head this problem and have a clear definition as to what is involved. Social Welfare are working under very outdated legislation, I think it is the Social Welfare Act, 1959. They have refused to accept that the High Court ruling was relevant to the social welfare or PRSI situation of the fishermen. The High Court ruling appears to be quite clear in that it deals with PAYE and PRSI. The income tax authorities continue to treat share fishermen as self-employed and Social Welfare continue to treat them as employees. Apparently, this crazy system is acceptable. I await eagerly the Minister's proposals, fully accepting that he has no direct responsibility for either the social welfare or income tax implications of the case I have put. The Minister has responsibility for the general welfare of those involved in our most important marine industry and I appeal to him, through him to Minister Wilson and his colleagues in the Departments of Finance and Social Welfare to come up with a formula to resolve this impasse as quickly as possible.
