I first became aware of the major difficulties facing share fishermen under the social welfare code almost four years ago. It was the storms of December 1989 — fishermen in Kilmore Quay were particularly affected — which underlined the chaos under the social welfare system as it applied to fishermen. Those December storms left dozens of share fishermen and skippers without work for many weeks. Indeed, only a few of these managed with great difficulty to establish their entitlements to unemployment assistance. None was entitled to receive unemployment benefit.
Following the judgment in the McLoughlin case in 1986, in which it was determined that share fishermen were self-employed from the point of view of the Revenue Commissioners, the assumption was that since they were self-employed for tax purposes they were also self-employed for social welfare purposes,. No one would have believed that the State would treat the one person differently under two codes, but that is what transpired. It was not until 1992, when the Department of Social Welfare took a case against Griffiths, that it was determined that share fishermen were self-employed for the purposes of social welfare. I am not sure why the Department of Social Welfare was so obstinate. I would have thought that the judgment in the McLoughlin case would have been sufficient for all Government Departments, because people cannot be treated differently under different codes. In any event it trundled on until 1992 when, as I said, it was determined that share fishermen could not be treated as employers any longer, that they were partners, co-adventurers.
This decision does not rest lightly on the shoulders of many share fishermen. Notwithstanding the judgment handed down, they still do not accept that they are self-employed in the true sense of the word as it applies to shopkeepers, farmers or any other individual who runs his own business. As Deputy Coughlan and others have said, they have no control over when they work, who hires or fires them, or even the wages or salary they receive. Their only asset is their labour which they can sell to the skipper or boat owner, who need not be the same person. How then can we accept and treat them as if they were self-employed?
I would like to put on record the views of the Kilmore Quay share fishermen's action group. They have expressed their views extremely well and it is clear that they are both frustrated and angry. I quote from their submission:
We the share fishermen have always seen ourselves as employees of the fishing industry and we feel that decisions made by the courts, which may have been swayed by a distortion of facts regarding our employment, were very discriminatory indeed against a most vulnerable section of the fishing industry.
The loss of Class A benefits in many cases caused severe hardship for those concerned. Proper information concerning their employment status was not forthcoming, and many people found themselves in a state of "LIMBO" regarding their position.
Many official documents regarding their employment were not forthcoming and in many cases have not yet reached the hands of those concerned, because of indifference on the part of their employers. In short the transition period as regards PRSI for share fishermen took place behind the backs of those concerned. In many cases share fishermen were not aware of their disputed status until years after contributions had ceased to be paid on their behalf by the deceiving tactics of some employers. This is totally unacceptable.
Many share fishermen in Kilmore Quay were unaware of their change of status under the various codes until the tragedies of December 1989 when they could no longer go to work. The letter continues:
We the action group for share fishermen would like to state categorically here and now the IFO do not represent us, or our interests, within the industry. On the contrary they misrepresent us on many issues, without any mandate whatsoever from the share fishermen involved.
We the action group for share fishermen would not see the Department of Social Welfare as a "buffer" between the IFO and share fishermen, but on the contrary would treat this as an opportunity to create a cordial relationship between the Department and ourselves, which would give us access to discuss matters which affect share fishermen within your Department.
I am quoting from a letter to the Minister, so "Department" refers to the Department of Social Welfare. I can only speak for the share fishermen in County Wexford. They do not feel that the IFO represents their interests, but that it represents the case of skippers. They feel the need of a representative organisation for ordinary fishermen. It is over to them on that; and if they want help or assistance I am sure we will all be available. Let me continue with the letter:
The pivotal point of the argument concerning the status of share fishermen as regards PRSI seems to hinge on the Ruling of the High Court as defined by Justice Blayney in the Griffiths case 1992 when he decreed (that because of the nature of remuneration granted to share fishermen, their status as employees was in doubt, and in fact they were partners in the fishing venture, and would be classed as such for insurance purposes).
We the share fishermen would seriously question this ruling in light of the fact that distortion regarding that aspect of our employment, and many more aspects of our employment, may have swayed Judge Blayney in his decision as regards the employment status of share fisherman.
We the action group would not see the pivotal point of the argument regarding the status of the share fishermen as how we receive remuneration, but rather on the issue of who determines the availability of work, who determines the amount of remuneration received for work, in short who determines when they shall work, how they shall work, and how much they will be allowed to earn.
The following points I hope would go a long way in establishing that fact:
The share fisherman does not receive a share of the profits as such, but a payment which is solely determined by the boat owner without any input on the part of the share fisherman, which the owner sees fit as just reward for services requested by him during the course of that venture. This is far removed from a partnership.
Without receipts regarding total earnings and also total expenditure incurred during the transaction, the share fisherman must assume that the payment he receives from the owner concerned must be a wage for services rendered, and should be seen to be just that.
(2) The share fisherman has no input whatsoever into determining what course the venture undertaken by the boat shall take, e.g., the boat owner shall determine without any interference on the part of the share fisherman.
(a) When the boat shall leave to commence the venture.
(b) What time the share fisherman must report for duty.
(c) How short, or how long, a time the venture shall last.
(d) What type of fishing gear is to be used.
(e) What type of fishing is undertaken.
(f) When the share fisherman is relieved from his duties.
(g) What direction the proceeds of that venture shall take as regards sale, etc.
In short, the only input into the venture on the part of the share fisherman is that of his labour which he carries out as requested by the boat owner for which he receives payment. This input is far removed from that which a partner in the venture would hope to enjoy.
(3) The boat owner exercises the right to dismiss
(a) the share fisherman from his place of work.
(b) to refuse entry to the share fisherman to his place of work — as in a "lock out".
(4) The boat owner exercises the right to withdraw remuneration to a share fisherman as soon as labour is withdrawn for whatever the reason, whether it be sickness or otherwise. This is far removed from a partnership where in most cases there would be consultation on the matter.
(5) The security enjoyed by most self-employed or partners in a business as a result of capital assets acquired during the course of their employment, is not enjoyed by share fishermen. In fact, to the contrary the only asset he has at any time is his ability to work. When his ability to work is curtailed, through no fault of his own, income needed to sustain the livelihood and welfare of himself and his family is totally eliminated. When this happens without the cover of social insurance the hardships caused to the family are very disturbing. This is unacceptable in today's society, and is socially unjust.
It is worth putting those words on the record because they express the frustration and annoyance of share fishermen, not just with their lack of insurance cover but with the judgments in the two High Court cases. As matters proceed they may have to look for personal representation in regard to their actual status.
I welcome the Bill, but it will have to be looked at closely on Committee Stage because it does not go far enough, and I will have many other queries. An additional 5 per cent in PRSI out of the wage of the share fisherman will bring to 10 per cent the contribution expected of him if he opts for this extra scheme to give him unemployment benefit and disability benefit cover, 13 weeks is not sufficient cover. Perhaps that could be rolled over a number of years — for example, 39 weeks over three years — because in some winters when there is mild weather and good fishing there might be no need for fishermen to be on shore for 13 weeks; whereas in other winters, such as this one, fishermen have been on shore for 26 or 27 weeks already. Therefore they should be able to roll over any unemployment benefit entitlement they might garner from this legislation.
It is unacceptable that they should have to wait until 1996 to come into benefit. They will not start making this payment until April of next year and will not come into benefit until 1996. In recent years many share fishermen's families have had to depend at Christmas time on the local St. Vincent de Paul Society and other charities. It is necessary to deal with the situation. These are not self-employed people in the accepted sense. I understand the technical reasons for this provision. They will be assessed a year in arrears. The method of payment has yet to be determined. However, it really is necessary that special transitional arrangements be made in the first year to bring share fishermen into benefit immediately, because they are workers in the sense that any other employee is a worker. They have no assets, they have no capital, they have no money left over from last year with which to pay this year until they come into benefit. Exceptional treatment is needed to bring share fishermen into benefit immediately once they start payment.
As amnesties are fashionable it would be only just to allow those who have been outside the social welfare code for the last few years because of the Griffiths and McLoughlin judgments to come into it immediately on the basis of an amnesty whereby there would be no investigation of their back books. Perhaps the Minister would consult with the Minister for Finance on that and avoid prolonging the agony of fishing families.
Skippers who to date have been quite happy to treat their share fishermen as employees and pay the PRSI at the Class A1 rate should make allowance in the wages they pay for the extra PRSI contribution that will now have to come from the share fishermen themselves. Otherwise the skippers will be better off while the fishermen will be worse off. Can the Minister say if skippers will be responsible for any PRSI back money which would be due as a result of the 1992 judgment? What, if anything, does the Department of Social Welfare intend to do about that? Can the Department do anything about it?
In general the Bill solves the problem that has been created. The fisherman have requested the Minister to consider the position in the UK. From April this year share fishermen in the UK had to pay only £7.75 per week for 13 weeks in arrears and this payment guaranteed them full Class A1 benefits. While the Minister has improved the position in relation to unemployment benefit and disability benefit, our share fishermen are not getting full Class A1 benefits. In the interests of competition and peripheral communities — the communities the Cohesion Fund was set up to look after — I ask the Minister to see if he can bring the position here closer to that of the UK. I am sure the Minister can take that extra step to bring the position in relation to our share fishermen into line with that of the UK position and provide them with full Class A1 benefits for a slightly lesser contribution.
The Minister mentioned other issues she would deal with on Committee Stage. I welcome the moves to insure volunteer development workers. Their insurance was overdue.
I ask the Minister to ensure that the guide to the Consolidation Act is circulated to all members of the Oireachtas. It is an idiot guide to the Social Welfare (Consolidation) Act and will be very useful in explaining different issues.
It is nearly Christmas. Every year there are crises and problems in regard to the social welfare Christmas bonus. Every year some social welfare recipients receive the bonus and others do not. I am particularly concerned about those who have been on social welfare for a long time. They may not have been on unemployment assistance for a long time. In many cases the rate of income they would have received would be lower than employment assistance. Unemployment benefit can be lower than unemployment assistance. In my constituency I know of people in receipt of long term unemployment assistance who when they became ill went on to disability benefit and found they no longer qualified for the Christmas bonus, even though they may have been out of work for a long time.
When people move from one end of the social welfare code to the other their entitlements to Christmas bonus and free fuel should be maintained and I ask the Minister to consider those in that category. I note the principle to which the Minister referred and recognise that there must be control and that recipients only a short time unemployed or in receipt of disability benefit should not be entitled to such benefits. It would be very nice to give those benefits to all recipients. Recipients who have been out of work and are in receipt of unemployment assistance and then have to go on to disability benefit should not lose their Christmas bonus or the entitlement to free fuel. Under the present system they do lose those benefits. I ask the Minister to address this matter this year.
Will the Minister indicate the present position regarding the statutory instrument he introduced in relation to the direct collection of PRSI from share fishermen in November 1989? I presume this Bill supersedes that and will be recalled or annulled or whatever happens to statutory instruments that no longer apply.