Last night when I moved the adjournment, I had been dealing with two fundamental changes in the procedure in connection with workmen's compensation which it is proposed to effect by this measure. I had dealt with most of what I wished to say on the first topic, namely, the transfer of the liability of the employer from his pocket to the pocket of the taxpayers. There are just a few remarks I wish to make to supplement those observations.
I fail to see why the taxpayer should have to discharge the duties of big firms like Guinness's, Jacobs, Plunder and Pollock or any other industrialists throughout the country. Certainly what the Minister has stated has not convinced me of the necessity, or even the desirability, of effecting that transfer. I would again emphasise the fact that the Minister's Department are not in any way qualified to do what will be a very difficult task which will require very much more specialised civil servants than he has available at the present time.
That leads me to the second point I want to develop a little further on the duties that will fall upon the Department and its personnel, consequent upon the taking away of the rights of the workman which it is proposed to effect by this measure. At the present time and for many years past, a workman injured in the course of his employment had the right to go to court. We all know the history or an outline of what has happened during that period. That is relevant in connection with the remarks of the Minister when he said it causes controversy and bad will between employer and worker to have to go to court.
Whatever may have been the development of the legal relationship between employer and worker in the past, I pointed out yesterday, and I repeat, that there are comparatively few cases that come before the courts of this country arising out of disputes between employer and workman. They are dealt with expeditiously and cheaply and no workman has ever been deprived of resort to the courts to get justice because he has not had sufficient money. Solicitors and counsel have always been ready to give their services free, if necessary. These cases are so well groomed and the procedure is so well known that they can go through the courts in a very short space of time: cases dealing with workmen's compensation, whether they be in connection with the determination of liability or whether that liability having been determined by the court, they arise in the course of the years in connection with questions as to whether the workman is fit for work, whether he is fit for light work or whether he is completely incapacitated. All these matters are dealt with very expeditiously by people who know their job and who are able to do it in a manner satisfactory to both parties.
It seems to me astounding that these rights are to be taken away from the workman, because under this Bill there is no resort to the courts. The Minister stated that in certain respects there is an appeal from the appeals officer, who exists at the present time under the Social Welfare code, to the High Court on a question of law. That is only the question of insurability and nothing else, and the one thing that is unlikely to give any difficulty under the present Bill is the question of insurability, as to whether a man is entitled to be insured or not. That can go to the High Court, but what cannot go to the High Court or any other court is the vital questions as his rights, such vital questions as whether the accident of which he complains arose out of and in the course of his employment. Inexperienced, untrained people will decide that very difficult issue. The law books are full of cases from 1906 in connection with such matters. It does not often happen that there is a dispute as to whether an accident arose in the course of employment or not, but if it does, any junior counsel down the country, in this city or anywhere else will know the legal principles to apply. He is trained in that and it can be done very cheaply and expeditiously.
I emphasise that it is a very bad principle to deprive the workman of his right to resort to the courts. That is what is being done here and I do not see why it is being done. I am not speaking on behalf of my confreres because they may lose a bit of business here; they will take it up somewhere else. Although it may be said in a sneering way about my profession or the profession of solicitors, that is not the reason. The reason is that workmen are going to be deprived of the rights they should have. I would not like to have any right of mine decided by any civil servant if I could possibly avoid it, because he is not trained for that.
I should like to draw the attention of Deputies to the provisions of this Bill which, if it passes into law, will determine the scope of the duties of and the matters which will have to be determined by the civil servants in the course of investigating these cases. There is no provision anywhere for the workman to come in and make his case. At the very beginning in the definition section, it is merely stated that the basis of this code in future will be the social welfare code. I see no justification at all for making workmen's compensation part of the social welfare code.
I should like to recall the history of this matter for Deputies so that they can get it into perspective. The workmen's compensation and employers' liability legislation started very early on and arose because of a judge-made law that an employer was not liable for the acts or negligence of his workmen. One of these learned gentlemen expressed horror that he should be made liable for the action of his footman causing injury to an underservant in the kitchen and from that gentleman's horror arose the matter of common employment which we in this legislature abolished. For more than a century the doctrine of common employment, which had its origin in the way I have indicated, brought about the necessity for workmen's compensation and employers' liability codes. There was never a question of a social service code at all.
There was a residue of matters left for which the employer was responsible in spite of the common employment situation which imposed liabilities on employers. We have got rid of the doctrine of common employment and workmen can now sue at common law for the negligence of their fellow-servants or of their employers, but still we have the residue of workmen's compensation which in nearly all cases does not give sufficient to an injured workman who, therefore, if he can, will go to common law which, in spite of workmen's compensation, will be available to him under this Bill.
It is proposed to take this matter away from the courts but it is still proposed to leave, and properly so, the workers' right to use common law. This right, however, has been eaten into by this Bill. Such cases are not easy to bring to fruition in courts: they are difficult cases to handle and Deputies who understand that will know the character of such cases. I got the impression at one stage that the judiciary were trying to kill common law action by workmen after the common employment doctrine had been abrogated by the Legislature.
At all events, we now find that civil servants, untrained, without any knowledge of this code at all, without any knowledge of the problems that have been met with in day-to-day administration of the workmen's compensation code in reference to workmen's rights, have first of all to ascertain what is an occupational injury under subsection (2). There, the basic rights of the workman are set forth and provide that every person employed in insurable occupational injuries employment shall be insured under the Act against personal injuries by accident arising out of or in the course of his employment. That is the workman's right. It is not to get compensation for injury: he has to prove and establish—and the Minister so stated in his opening speech—and the onus of proof is on him, that the accident arose out of and in the course of his employment. Then you go to section 29 to find out what that means, who is to do it and how it is to be done. There you find the duty imposed on the officials of the Department set forth in great detail and complex language. It provides that where, in relation to any claim for occupational injuries benefit, it is decided that the relevant action was or was not an occupational accident, an expressed declaration of that fact shall be made and recorded and, subject to the provisions of subsection (3) of this section, a claimant shall be entitled to have the question whether the relevant accident was an occupational accident decided, notwithstanding that his claim is disallowed on other grounds. That is not very clear as it stands and you must go to subsection (5) to find out what is meant. You will find there that an occupational accident takes place if:
(a) it arises out of and in the course of his employment,
(b) that employment is insurable (occupational injuries) employment, and
(c) payment of occupational injuries benefit is not precluded because the accident happened while he was outside the State.
You have several decisions there to be made. The accident must arise out of and in the course of his employment. The employment must be insurable occupational injuries employment. Who is to decide that? It is to be decided by civil servants who have no legal qualification. I should not like to have any of my rights decided in that way. I think—I raised it in the House before—that there should be some appeal from the decision under the social welfare code other than the very limited appeal there is on the question of insurability. If there was ever a judicial power conferred on non-judicial persons this is one if not more. Civil servants, untrained, are to decide very serious matters in the absence of court procedure, in the absence of any power given to the workman to have his case met or made.
There is nothing in that section to entitle a workman to go in and get his case made. I do not care whether he gets a solicitor, counsel or a trade union official, but here he cannot bring anyone in anywhere. The proposition put to him is: "You are or you are not in insurable employment". That is a most difficult, complex, judicial determination that may be determined and fixed in the absence of the workman. That is absolutely unjustifiable and as far as I am concerned, as long as this Bill is before the House, it will receive my uncompromising opposition and I hope it will ultimately dawn on the Government and on those supporting this part of the Bill that it is unjust and unfair and probably unconstitutional.
I have recited some of the judicial things these civil servants, untrained, have to do. Then you come along and find they have further matters to decide. In subsection (3) of section 3 they have to decide what is a contract of service. Lawyers know the difference between a contract of service and a contract for service. I should like to know if the Departmental officials in this case have the remotest notion of how these matters are to be determined, of how the workmen's rights are to be determined, not by anything put up on his behalf but by a determining official in the Department.
Then, in the next section, there is a question of the casual nature of the employment to be determined. The question of whether the workman comes within the code at all may turn on a decision on this very difficult question. Subsection (4) deals with the occupations that are not subject to the social security code and says that, certain things being taken into consideration, the workman was or was not engaged in employment of a casual nature. That is a difficult thing. In the last month I have had a very difficult case of a workman whom I was advising, voluntarily, may I say, on the question of the liability of the employer. The first thing that had to be decided was whether it was casual employment and the second was whether it was about the employer's business. That is a very difficult matter.
May I say, incidentally, that I do not know what provisions of this Bill deal with casual work. One always has to watch, when insuring under the present code against liability for workmen's compensation in respect of casual workers and one must be absolutely sure the policy covers casual workers. The principal instance that arises is the worker who comes to clean the windows. Is he a casual worker or under a contract of service within the meaning of sections I have already referred to? I do not know what provision is made in this Bill for casual workers except to say that they are not within the scope of the Bill if they are working about the employer's house. If they are not doing that, or other work of a domestic character, do they or do they not come within this Bill? I do not know. What shall we do then? Under the code as it stands, you insure against liability for casual workers; if you do not, you are a fool. Under this Bill, do we pay 2/1 and 1/6, or both, and also leave ourselves open to liability not covered in this Bill for workers of a casual nature?
Why are casual workers excluded? I do not know. They may be caught within the general scope of the measure but at any rate these are matters of a very difficult legal character on which the rights of persons will depend and they will be decided, not after hearing arguments and consideration of all the facts put forward by both sides, but by the decision—the opinion—of one person with no liability to give any reasons for the decision. As I have pointed out repeatedly, an opinion like this is not worth anything except to the extent of the validity of the reasons on which it is based. One may be told the accident did not occur in the course of one's employment but one is not given any reasons for that. One will not be able to put one's own reasons forward. But it is a very convenient thing for a body that has to determine the rights of other persons not to have to give any reasons or arguments on which its opinions are based. Once you do that, you are open to attack and the less you say the better.
There are some more things I must deal with. Section 4 (1) says:
An accident arising in the course of an injured person's employment shall be deemed for the purposes of the Acts, in the absence of evidence to the contrary, also to have arisen out of that employment.
Somebody must decide what is "evidence to the contrary" and that is a very difficult point. We have at present in the definition of what is an occupational injury giving rise to compensation that it must arise in the course of the employment but here it says also that it can be deemed to have arisen out of the employment, unless there is evidence to the contrary. Somebody may give evidence to the contrary and the worker may know nothing about it. The decision will be made in his absence. He does not get an opportunity of hearing it. That is a very serious matter because this is not the sort of thing that should be determined other than by a court or some person with judicial knowledge.
The next subsection deals with a series of incidents which would give rise to a claim for compensation. This is the case where there is a question of what is called larking or negligence or misconduct by another person or by the insured person being struck by lightning, and where the insured person does not directly or indirectly induce or contribute to the happening of the accident by his conduct outside the employment and so on. It would take any judge, even an experienced one, to determine the facts on that section but the workman will not be given a chance. I referred last night to the duty that will be in the official mind above all else to protect this Fund.
I had experience of this myself in connection with unemployment insurance. Officials will be bound to consider all matters in that way. This serious matter of whether an insured person did not directly or indirectly contribute to the accident is to be decided and the rights of the employee will be decided in his absence and certainly without giving him a full opportunity to make his case. He will know the decision and will be told. "You can appeal if you like." He will get the same treatment again on appeal unless there is some resort to the court.
There are other matters of this kind all through the Bill. The Minister has power to make regulations of a most extraordinary kind almost to the extent of changing the Bill. I do not know where we are going in regard to bureaucracy. There was much discussion here about bureaucracy in regard to the budgetry proposals but we shall get in regard to so-called bureaucracy exactly what we want here. If we do not want bureaucracy we have the remedy in our own hands; if we want it, there is no use in complaining about the results later when we do not take steps to stop it.
We have most extraordinarily wide powers of regulation of all kinds in this Bill. Perhaps I should start with section 27 which deals with the prescribed notice of accidents. Notice must be given in a prescribed time and form by the person claiming insurance and if he fails to do that without good reason, he is disqualified. Could there be any greater exercise of judicial power than the power given to a person to decide these matters? The regulations will do it: The Minister will say what is this, that or the other.
There have been many cases in the court about failure to give notice of an accident and the workmen's advisers are alerted to the necessity for giving notice and where a client does not give the notice, they have to go in because frequently when a man is injured, he forgets to give notice or thinks somebody else will do it. Now it will be worse because no judge at present if he can possibly do it, unless there is grave injustice to the employer, would ever permit lack of notice to interfere with a person's rights. They may be very seriously interfered with here, because failure without good cause to give the prescribed notice will disqualify and that is going to be decided by civil servants and nobody else, and nobody may appeal from that and no reasons will be given. That is not correct. It is unjust to the workman. It is only one of the many ways in which the rights of the workman are interfered with prejudicially in this Bill. There should be resort to the courts in all these cases, which will be cheaper, more expeditious and done by people who know what they are doing.
You have the regulations in regard to the reporting of accidents by employees. I do not know what will happen to workmen if they do not do it, if they pass it up without bothering their heads. As I said last night, this Bill favours the employers. They have very little to do now. Under the regulations they are supposed to facilitate the giving of notice of accidents and all that class of thing. But all that is very easy compared with the liability of a workman who is injured. He has to give notice of the accident although there may be many people around the place looking at it at the time.
Section 31 is a section that so far has not been referred to and it requires very great consideration. Regulations made under it may disqualify a person from receiving benefit for any period not exceeding six weeks if he fails to submit himself for examination and so on or fails "to observe any prescribed rules of behaviour." How is that justified? What are the rules of behaviour that will be prescribed? He may be disqualified by these officials for six weeks, although his family may be starving, if he does not behave himself in the way the Minister says he is to.
There is no appeal. Under the present code, a man is entitled to work when he can, to do light work when he is able to do it. There is nothing to prevent him from getting his compensation or to provide that he will be disqualified if he does not conform with certain rules of behaviour. In the normal course, if he did not submit himself in the proper way for a medical examination, the court could take other medical testimony and act on that. But here he is going to be disqualified. That is new. That is not merely depriving a workman of his rights but imposing new liabilities on him that did not exist before.
In section 32 we read:
Regulations may provide for treating a person for the purposes of this Act as incapable of work as the result of an accident or injury when he would not be so treated apart from the regulations, and may also make provision—
(a) as to the days which, in the case of a person who at any time is or is to be treated as incapable of work as the result of an accident or injury, are or are not to be treated for the purpose of occupational injuries benefit as days of incapacity for work, and
(b) as to the day which, in the case of night workers and other special cases, is to be treated for the purpose of occupational injuries benefit as the day of the accident.
What is the meaning of that? It means what the civil servants say it means. When that is construed—as it probably will be—against a workman, there will be no resort to the courts.
I have gone only very casually through some of the functions that will be imposed on these inexperienced persons. The result will be to deprive workmen of existing rights or resort to the court and impose on them obligations that do not exist at present. That is not justice. It is not something we ought to do. It will be in strict accordance with bureaucracy. That is what we will get if we let them. Now is the chance to stop that. There is no reason why the workman should not have resort to the Circuit Court. It would be done there far more cheaply and quickly than it would be done under the way now proposed. As it stands, the workman has not resort to the courts other than for insurability.
Be that as it may, what is proposed now is entirely different from what is imposed on civil servants by the Social Welfare Acts as they stand at present. They have very much more important matters to decide and determine judicially affecting a person's rights. If you have a workman now stated by his employer to be capable of work, that can be determined by the one person who can give a judicial determination. One doctor comes in and says he is fit and another doctor says he is not. The judge determines between them or gets in a medical referee. What can happen here is that a civil servant can say: "You are capable. Go out and do it." You have to go out because the civil servant says it or your compensation is stopped. You have no right to go before a medical tribunal or anything of that kind. You must attend at some official place before an official medical man. You cannot have your own doctor who might say: "I do not agree."
That is a fundamental right taken away from the workman by this Bill. Are we going to stand for that? I would be very interested to hear some views on that matter. At present the workman can have his own doctor and can have very good specialists. I have seen some of the best specialists in the country come down to court on behalf of very humble workmen. It is not a question of insurance companies being able to pay. They can have their own choice of doctor. Under this they are told they have to go before A, B, C or D, who will have the official view and attitude. He will be there, first, to keep his job and, second, to protect the fund.
I want to say a few words on the question of damages. Section 38 deals with the matters to be taken into account in the common law proceedings brought by the workmen entitled to do so to get damages. Why should we interfere with their rights? They have the same rights in respect of negligence as any other person, if they can bring themselves within the law so far as their employers are concerned. It is true they should not have both remedies. That is provided for under the present code. If you get damages, your workmen's compensation can be deducted from the amount of damages to be given. I fail to understand why this particular provision should be put into section 38. It is a provision I really do not understand at all. I understand that, when you tell a judge and jury that the injured person is entitled to a certain amount of damages, he is in the first place entitled to get whatever loss he sustained. That is part of the primary right, but apparently it will not be done here. It is all right to say:
...there shall in assessing those damages be taken into account, against any loss of earnings or profits which has accrued or probably will accrue to the injured person from the injuries, the value of any rights which have accrued or probably will accrue...
He got compensation and credit is entitled to be taken for that as at present. But why put in the other stuff? What is meant by the jargon? It is almost impossible to know what it means. It says:
...there shall in assessing those damages be taken into account, against any loss of earnings or profits which has accrued or probably will accrue to the injured person from the injuries, the value of any rights which have accrued or probably will accrue to him therefrom.
When you come before a jury looking for damages for injuries, it is assessed once and for all on the last day when the jury come in with their verdict and the judge gives his decision. You take into account all the loss involved in income, wages, or whatever it may be. How can you ask a judge and jury to project themselves into the future? It is contrary to law, contrary to justice and another evasion of the workman's rights.
The next point is a small matter but I mention it to show the lack of consideration and the lack of knowledge on the part of those responsible for this Bill. Under the Civil Liability Act passed by this House, a right was given though it existed before that time, to dependants of a workman or of any person killed by the negligence or fault of another person to get the expenses of the funeral, debts, and that kind of thing. What do we do here? We say that, if a workman gets that under a previous section of this Bill, then something is to be done by way of not giving double payments. Under section 22 there is, apparently, a right to get a grant of £50 but that is immediately cut down by the second subsection. The first subsection says:
Death benefit by way of a grant of fifty pounds in respect of funeral expenses shall, subject to the subsequent provisions of this section, be payable in respect of the death of the deceased.
Subsection (2) says:
In any such case as may be specified by regulations, the reference to fifty pounds in subsection (1) of this section shall be construed as a reference to such amount less than fifty pounds as may be specified by the regulations for that case.
You will not get £50, in other words, "in any such case as may be specified by regulations". John Jones will get £50 but Mary Flaherty will get less, provided her name is put in regulations. Did you ever hear such nonsense? But that is what the section says.
You find then that a workman has a right to go in common law for damages and under legislation passed by this Oireachtas he has a right to get his reasonable funeral expenses not cut down to any amount. Then you say that, whatever a workman gets under this, you deduct it. That is all right, but let us see what it does. Section 38, subsection (3) provides:
Notwithstanding section 50 of the Civil Liability Act, 1961, in assessing damages in respect of a person's death under Part IV of that Act, account may be taken of any death benefit by way of grant under section 22 of this Act in respect of funeral expenses resulting from the person's death.
Why should the taxpayers not get the benefit of making the negligent party pay? You let off the insurance company and you make the taxpayer pay. That is what is here and that is why I point to this as showing a lack of appreciation of the problems being dealt with by this Bill. A workman is suing on his common law right against a person who is negligent and, under the law, he is entitled to get his reasonable funeral expenses, but the insurance company under this is to get the benefit of what the taxpayer pays under the Bill. Does anybody think there is rhyme or reason in that? This is an absolutely ill-considered Bill despite the lapse of three years after the recommendation in both the Majority and the Minority Reports. This is presented to us as a grand Bill, something worth waiting three years for. That is the kind of stuff we get and all the time we are taking away the rights of workmen and also imposing additional obligations.
The last point I want to deal with is the lump sum. One would think this Bill was something tremendous because it does not give any lump sum. That shows that those at the back of it know nothing about what goes on in workmen's compensation cases in the country. The fact that workmen could get something from their insurance companies which they will not be able to get under this Bill was a tremendous instrument and a valuable privilege. A very valuable right is now being taken away from them. Under the Workmen's Compensation Acts, there was provision for allowing employers to redeem the weekly payments. Some people may say that lump sums were frittered away. Some of them may have been but a great many benefited by getting a lump sum. They were able to set up in little businesses. Some of them bought farms. Some may have dissipated the lump sum but, by and large, it was a good thing and anybody who says the lump sum should be done away with is talking of something about which he knows nothing.
That was one aspect. There was another even more valuable than that. There was the workman who got compensation either by agreement with his employer or by order of the court. The compensation dragged on and there was a good deal of worry as to whether the workman was fit for light work or had recovered from his incapacity. All sorts of questions arose and the insurance company, in the phrase, wanted to get him off their books. That was a most valuable right for the workman because instead of being harassed by directions to go back and try to work, he could go to his solicitor or counsel and the latter could make a very valuable arrangement with the insurance company to buy the workman off. The workman got a lump sum. That has gone. That was a very valuable right. Any junior counsel of even a few months' standing could tell the Minister how valuable that was.
Nevertheless, the Minister comes in here and talks as if he has achieved something wonderful in doing away with this lump sum. Of course, he does not know what he is talking about. That was a very valuable right and workmen will find to their cost, when they are dealing with civil servants, that they cannot buy themselves off. That has gone. In case anybody may be under any misapprehension, no settlement could be made at the expense of the workman because the settlement had to go before the county registrar and, if necessary, the Circuit Court judge. The county registrar might object to the settlement on the ground that the workman was overborne by the insurance companies and their officials or that he was too anxious to settle in order to get some money into his hands. The county registrar could refuse to accept the settlement and he could bring it before the Circuit Court judge. That was a very valuable right. That is swept away now in a paean of praise by the Minister. He knows nothing about it.
A man who was injured in the course of his employment could sue his employer in the ordinary way at common law. He was entitled to do that under an Act passed when, I am glad to say, we were in office. It was not a question of a man electing to take compensation giving up another right. He had the right to sue the employer at common law and, if he did not succeed, he had the right to retain his compensation. It was a well-known practice in the legal profession that, when a case did not appear to be as good as it should be, or proof was somewhat difficult, one went to the other side and asked: "What will you give us?", and the value of a lump sum equivalent to the workmen's compensation was taken into account. That has gone now. That is in ease of the insurance company, again in ease of the employer. It is another instance where the Bill favours employers and is against the workman. That case of the workman is gone.
I do not know why we should be thinking that this is a wonderful Bill. So far as it increases benefits, of course it is about time it was done. So far as it affects workmen's rights, to the extent particularly that it prevents them from taking their rights and getting them adjudicated on in court or by some judicial body, I am uncompromisingly against it and will do everything I can as long as I can to see that it does not go out as not merely a menace to the workman but as a standing disgrace to the Dail.