Dáil Éireann díospóireacht -
Tuesday, 5 Apr 1949

Vol. 114 No. 15

Adjournment Debate—Workmen's Compensation.

Mr. J. Lynch

On Thursday last, 31st March, I asked the Minister for Social Welfare the following Parliamentary Question:—

"To ask the Minister for Social Welfare whether he is aware that the Workmen's Compensation (Amendment) Act, 1948, has caused much disappointment in its operation in so far as many recipients of workmen's compensation have failed to derive any benefit by way of increased compensation, under the Act; and, if so, what action he proposes in the matter."

The Minister replied by saying that a few cases had been brought to his notice and then he went on—quite irrelevantly, in my submission—to say that Section 7 of the 1948 Act extended existing legislation in the matter of giving the court power to increase or diminish the weekly payments to injured workmen, on it being proved, amongst other things, that there was a fluctuation in wages. In order to put the Minister on the right track, I instanced three cases in which the 1948 Act did not benefit recipients of compensation at all or only to a limited extent.

The first case was one where workmen were in receipt of pre-accident earnings of 50/- or less. These people received no added benefit under the 1948 Act. The second case was of people who were in receipt of compensation based on partial incapacity. These people were not benefited either under the 1948 Act. The third case was of people whose earnings ranged between 50/- and £3-6-8. These people benefited only to a limited extent under the 1948 Act. In reply to that question, the Minister—again apparently failing to see my point—referred me to Section 7 of the 1948 Act. I may point out here, a Leas-Chinn Comhairle, that under Section 25 of the 1934 Act, if a workman on going to court could prove that there was a fluctuation in the rate of wages that he was receiving at the time of his accident, on fulfilling certain other conditions he had a right to get from the court an Order increasing his compensation. This applied to adults or infant employees. The employer had a corresponding right to reduce the compensation in the event of a fluctuation in wages by way of decrease.

However, the interpretation of the courts on those sections was that, unless there was a prior Order of the court giving the workmen compensation or unless he was receiving it under an agreement registered in the court, Section 25 of the 1934 Act did not apply; so in the new Act of 1948, Section 7 was introduced to overcome this defect. It provided that, even where people were receiving compensation without an Order of the court or without a registered agreement, they could go before the court and, on proving that their wages had increased by a certain amount, the court could increase their compensation.

In reply to my Supplementary Question, the Minister again referred to that particular section. In order to get the Minister's mind off that Section 7, I instanced cases again where persons in receipt of compensation could not get relief. These were cases of people whose pre-accident earnings were 50/- or less and who in the meantime could not prove to the satisfaction of the court that the rate of wages in their particular grade of employment had increased to an extent sufficient to meet either Section 25 of the 1934 Act or Section 7 of the new Act. Even though Section 7 could in no way apply to such cases, the Minister again pinned his faith to this particular section and side-stepped the issue I put before him. I say that he deliberately side-stepped the issue, either in order to boost his own Act, failing to see its difficulties, or because he failed to see the point I was raising. I am strengthened in that idea because, in the course of his reply to my first Supplementary Question, he used the following words:—

"The Deputy apparently does not realise the potentialities of Section 7 of the 1948 Act, and, if he gets some legal advice, he will find that these people can recover a greater rate of compensation than he or some of those for whom he speaks appear to realise."

Minister for Social Welfare (Mr. Norton)

Would the Deputy permit me to interrupt him at this stage? Might I take this opportunity of saying that, when I made that reply on the last day, I made it completely unaware of the Deputy's professional qualifications and in so far as the reply purported to be even in the remotest degree a reflection on his professional qualifications, I withdraw any such unintended reflection. I assure the Deputy that, when I was speaking on the last day, being unaware of his professional qualifications, I thought it well to deal with the matter from a non-technical point of view, my legal advisers having assured me that the section has the meaning which I said it had. I would like to assure the Deputy that nothing was further from my mind than to reflect on his professional qualifications. I want to assure him that I had no such thought in my mind and I would ask him to accept that.

Mr. J. Lynch

I can assure the Minister that I accept that explanation unreservedly. However, I want to maintain that, when the Minister kept referring to Section 7, he did not deal with the points I raised. Apart from that, the main purpose of my raising this particular question on the Adjournment was to ask the Minister if he now realises that his remarks in regard to Section 7 in no way applied to the cases I have instanced. The first case was where a person whose pre-accident weekly earnings were 50/- or less and who could not prove to the satisfaction of the court that there was an increase in his wages to the extent that would satisfy the court to make an order increasing his compensation. Many of those cases exist and I can instance some of them.

In the case of casual dockers, these people had very unreliable rates of wages—some weeks they earned a lot of money and other weeks practically nothing. These people could not say that the rates of wages applicable to their particular grade of employment had increased. There are several cases within my own personal knowledge, even though the Minister said that only a few cases had come to his notice. I can give names and addresses of certain people who have come to me, keenly disappointed about the operation of the new Act, in so far as that is concerned.

The second case in which people received no benefit is that where the recipient of compensation is receiving it on the basis of partial incapacity. The partial incapacity is assessed on the difference between the worker's pre-accident earnings and what he would be able to earn in some suitable grade of employment in his partially incapacitated condition. The percentage varies as between 80 per cent. if over £1 and 75 per cent. if less than £1. The Minister must realise that there are people who, having to live on 37/6 a week and having to provide, possibly, for families, cannot maintain those families on the paltry compensation of 37/6 a week. In many cases, some of those people undertake parttime work that they are able to do and so supplement their earnings. As a result of that, their compensation is automatically decreased. These people make no attempt at malingering but, on the contrary, in order to help their families and possibly improve their prospects of getting over their particular affliction, undertake work and for that reason are not entitled to any increased benefits under the new Act.

The other people whose pre-accident earnings were more than 50/- per week and less than £3 6s. 8d. per week, which latter figure is the minimum pre-accident wage which would entitle a person to 50/- per week, are not in the same state of hardship as these people to whom I have referred. Nevertheless, I am not advocating that compensation should be raised to such a figure as would promote malingering— that compensation should be raised either to the level of pre-accident earnings or to a level in excess of it, because that would promote malingering and any recipient of compensation might well say to himself: "Why should I try to get better when I can get more money than I would have if I were earning wages?" I feel, however, that some provision should have been made for these people whose wages were 50/- or less and who could not possibly prove a subsequent increase in wages.

An Leas-Cheann Comhairle

I appreciate the Deputy's difficulty in trying to raise this matter, but the Chair is in a difficulty, too. I cannot see how the Deputy can discuss the Act per se because the Act is law and we cannot discuss an Act on the Adjournment. The Minister is not responsible for the administration of the Act—it is the courts which are responsible for the administration of the Act and the courts are not subject to discussion here. I have allowed the Deputy a good deal of latitude, I think——

Mr. Lynch

I appreciate that.

An Leas-Cheann Comhairle

——and while I appreciate his difficulty and sympathise to a great extent with him, I must say that I do not think he can go much further into the matter.

Mr. Lynch

Up to a few minutes ago, I was simply stating the question and answer as they took place on Thursday last. I realise that I am not entitled to criticise or advocate legislation, but what I want to make clear is that the Minister in his reply did not answer the questions I put to him.

An Leas-Cheann Comhairle

If that is what the Deputy wants to discuss, that has already been said.

Mr. Lynch

If I can get the Minister to realise now—I may not have put my case as strongly as I would have wished —that Section 7, which he told me on Thursday, met the cases I put to him does not do so and that the people I have mentioned are in no way provided for by way of increase under the new Act, I shall be satisfied, having made my point.

Minister for Social Welfare (Mr. Norton)

I think Deputy Lynch is endeavouring to import into this matter an enormity and a gravity which it really has not got and which he must know himself, on reflection, it has not got. It seems to me that he is striving after political effect more than endeavouring to expose whatever weaknesses he pretends to discover in the recent Workmen's Compensation (Amendment) Act. Let me tell the Deputy what we did in that Act. The Deputy talked about the paltry compensation of 37/6 per week. I felt that it was so paltry that I was not going to leave it at 37/6 per week. From 1934 to 1943, it was 30/- per week, which was still more paltry than 37/6, and from 1943 to 1948, it was at the paltry level of 37/6 per week, as the Deputy has properly described it. Just before last Christmas, I introduced a Bill the effect of which was to raise the ceiling from 37/6 to 50/- per week. In other words, as between 1934 and 1948, injured workmen had their compensation increased from 30/- to 37/6 a week, an increase of 25 per cent., and the Bill I introduced last December gave them an increase not of 25 per cent. but of 66 per cent.

Mr. Moran

Not if the £ is worth only 10/-.

Mr. Norton

Who brought it down to 10/-? Are we not lucky to have a £ at all after Fianna Fáil had been in office? Deputy Kissane admitted that it had gone down to that extent, and, in a few more years, it would not have been worth anything.

Mr. McGrath

On a point of order, is the Minister replying to what Deputy Lynch has put forward? Is he not discussing the whole Act?

Mr. Keyes

That is not a point of order.

An Leas-Cheann Comhairle

The Minister will reply, if not interrupted.

Mr. Norton

I want to tell Deputy McGrath the benefits of the Act. Why get so annoyed when I tell you the benefits which injured workmen are getting under the Act?

Mr. Moran

Why not deal with the weaknesses in the Act?

Mr. Norton

Why all the annoyance because I point out the benefits?

Mr. McGrath

Because you are dodging the issue.

Mr. Keyes

He cannot take it.

Mr. McGrath

He cannot say it— that is right.

Mr. Norton

Deputy Keyes pointed out that the Deputy cannot take it. Deputy McGrath dodges Deputy Keyes's remark, although complaining about dodging in another sense. The recent Act stepped up the ceiling from 37/6 to 50/- per week, an increase of 66 per cent. Is that not a substantial benefit which these people never previously got? There was nothing to prevent them getting it in 1947, 1946, 1945 or 1944—every year since 1934— but they did not get it. Why? This House was not keeping it from them— it was never asked to pass legislation to give it to them. But they got it last year and they are getting it this year and injured workmen and the unions which cater for them know only too well——

Mr. McGrath

Not the classes referred to in the question.

Mr. Norton

——the benefit the Act has been.

Captain Cowan

Leave it to an intelligent Cork Deputy.

Mr. Norton

Deputy Lynch says that where a person has a certain rate of pay, he gets no increase on 37/6. The whole basis of workmen's compensation, as Deputy Lynch knows, has been that an injured workman got three-quarters of his pay if he was injured, subject to a maximum of 37/6 per week. If three-quarters of his pay was less than 37/6, he got less than 37/6. Deputy Lynch now says that if a person has 50/- per week he gets no increase. He gets three-quarters of his pay subject to a maximum of 50/- per week, whichever is the lower. You are bound to have cases in which people will not get 50/-. The whole basis of the Act is three-quarters of your pay or 50/- per week, whichever is the lower. Take the case of the person paid £1 per week, or, in order to avoid the percentages, the difference between 75 and 80 per cent. which is a factor in the construction of the Act, take the case of a person with £2 a week. If he meets with an accident, he gets three-quarters of his pay, or 30/-. Does Deputy Lynch want to give him 50/-per week? Does he want to give an injured workman 10/- per week more than he would get if he were employed?

Mr. Lynch

Would the Minister allow me to put one question?

Mr. Norton

Certainly.

Mr. Lynch

If a man was injured about 1934, the year of the passing of the Act, whose wages were 50/-, he could not now go to court and prove that the rate of wages in his grade of employment has advanced. Does the Minister hold that his rate of compensation should not be increased while he is still totally incapacitated at the present date?

Mr. Norton

I will answer that question with the greatest of pleasure. Is the Deputy clear on one point? Under the 1934 Act and under the increased benefit made available by the Emergency Powers Order, 1943, award of compensation was raised from 30/- to 37/6 but that increase in fact was held to be not legally applicable except to compensation awarded as a result of a court order? Is he also aware of the fact that it was held in court that an injured workman receiving 30/- per week could not get the 37/6 because his 30/- in the first instance was paid by agreement with the employer and not as a result of a court order? I put Section 7 in the 1948 Act for one purpose and one deliberate purpose, to enable the injured workman to go to court. This provision was not previously available to him even in a case where his previous compensation was not settled by the court.

Mr. Lynch

Again, the Minister is not dealing with any of the points I have raised.

Mr. Norton

I have time enough to deal with them and we will deal with them all. The injured workman was entitled to go to court and if he could show the court that between the time he met with the accident, say, 1934, and the passage of the 1948 Act his wages would have increased by as much as 20 per cent., he was entitled to ask the court to recalculate his compensation on the basis of his notionally assumed increased wage. The Deputy admits that?

Mr. Lynch

We know all about that.

Mr. McGrath

We are not disputing that.

Mr. Norton

Thanks. Does anybody know of any worker who between 1934 and 1948 had not his wages increased by as much as 20 per cent.? If he does, he should identify that worker for us.

Mr. Lynch

I can give several instances.

Mr. Norton

I am not sure that the Deputy is right in his premises but I do not want to get into a legal argument with the Deputy because he has professional standing in the matter of the interpretation of this Act. I have none. But, I want to say to the Deputy that I am still a bit doubtful as to whether there is not even a remedy for the docker to whom he refers. I do not want to construe Section 7 of the Act. All I can say to the Deputy is that I have handled many such cases for constituents of mine who told me that their employers had told them that they were not entitled to any increase under Section 7 of the Act and who, when the facts were pointed out and the construction of Section 7 was brought to their notice, the employers paid compensation which, if it had been left to their own construction of Section 7, they would never have paid.

Mr. Lynch

That is again applicable to people who have fixed rates of wages that were increased through the years. Take casual workers and handymen and people like that.

Mr. Norton

Again, it is not a matter for me to interpret Section 7. I am not too sure that these people are denied a remedy even under Section 7, if one compares their hourly rate for that class of work at the time they met with the accident with the hourly rate which they now would get for that class of work if they had not met with the accident. However, that is a matter for the courts to construe. It is not a matter for me to construe, but I am declining to believe that they are placed in the difficult position which the Deputy suggests they are in. At least, I am not going to believe it until the courts decide.

Mr. Lynch

If we agree to differ on that, will the Minister come to the partially incapacitated man?

Mr. Norton

A partially incapacitated man could get no increase under the 1943 Emergency Powers Order. If the Deputy looks up the Order, he will realise that the Order did not deal with a partially incapacitated man. Under Section 7, for the first time since 1934, I permitted a partially incapacitated man to go to the courts if he could show that his wages from the job he had in his partially incapacitated state had increased by as much as 20 per cent., and again, he was entitled under Section 7 to a remedy at court which he had not under the 1943 Act and which he had not since the 1934 Act.

Mr. Lynch

It probably had the contrary effect.

Mr. Norton

I do not think it had.

Mr. Lynch

If I had time I would prove it to you.

Captain Cowan

Would not the simple thing be to bring a couple of these cases to the Cork Circuit Court and have them decided?

Mr. Lynch

If Deputy Cowan were not so contentious in the proceedings, we would get on a lot better.

Mr. McGrath

It is all grist to the mill all the time.

Mr. Lynch

This is a matter for deliberation here.

Captain Cowan

There would not be much grist in a workman's compensation case, I can tell you.

Mr. Norton

The 1948 Act has been a good Act from the point of view of injured workmen. As a matter of fact, the provision in Section 7 enables a workman who was injured 30 years ago and who received workmen's compensation at the rate then in operation to go to the courts now, even if he made a voluntary settlement with his employer then, and say to the courts, "I met with the accident 30 years ago. I have been getting a low rate of compensation. During all that period, I never had a remedy in law. I have got one now under Section 7 of the 1948 Act. I want to show you that my wages would have gone up by at least 20 per cent. since I met with the accident and because of that fact I ask you to revise my compensation." The revision may take the form of stepping up the compensation to a ceiling of 50/- per week even though that man was not getting 30/- per week before Section 7 was introduced.

I have handled cases in the last few weeks of injured workmen who were receiving compensation as low as £1 2s. 6d. a week. Under Section 7 they can now go to the court and, having regard to the occupations which they followed when they met with the accident and the pay they would receive for that occupation to-day if they are still following it, they can have their compensation raised from 22/6 to 50/- per week. Is not an Act that does that a good Act? I suggest to Deputy Lynch that when he tots up all these cases that he has he will find that they do not occupy many reams of paper. In my Department only three or four cases have come to notice officially. In these cases we told the people concerned to go to a solicitor, to show him Section 7 of the 1948 Act and ask him to construe it, and if he feels that they have a case under this section, to go to the courts. In any of the cases I have handled I have not yet seen a solicitor so handicapped by the circumstances of any case so referred to him that he was unable to plead that the workman was entitled to an increase under Section 7 of the 1948 Act. I suggest to Deputy Lynch that he should take these cases that he has in mind to the court and give them a good airing there, relying on Section 7, and having more faith in it than it would appear he has this evening. I still have faith in it.

Mr. Lynch

Provided the necessary proofs are forthcoming.

Mr. Norton

I think the Deputy can make a good circumstantial case because he can still find out what wages the man now doing the job is getting and, so far, the court has not declined to take that as evidence. If he does that, I feel sure the future of these people will not be as bleak as he thinks it is. At all events, I suggest that he should not at this stage jettison the very valuable provision in Section 7, at least, not until the courts have come down against it. He has not tried the courts yet. That is the authority to construe the section, not I. What views I have expressed are the views of a layman, but I still think the section contains valuable safeguards for the injured workman. Deputy Lynch does not appreciate them, but he has not tested the section yet. I have tested the section in other cases which came personally to my notice, and the section has stood up to the test I imposed on it.

The Dáil adjourned at 10.30 p.m. until 3 p.m. on Wednesday, 6th April, 1949.