The Chair suggests that amendments Nos. 18, 19, 20 and 23 be taken together.
Social Welfare (Occupational Injuries) Bill, 1965: Committee Stage (Resumed).
SECTION 9.
I move amendment No. 18:
In subsection (7), page 12, lines 9 and 11, to delete "eighteen" and substitute "seventeen".
This has to do with the age at which people would qualify for higher rates of benefit, and the Labour Party feel that the age at which these people should qualify for the higher rate of benefit is 17. That is the purpose of these amendments.
This was raised before. The Labour Party are seeking for parity with the British scheme. We have the age for the reduced rate as under 18, the same as it is in other social welfare benefits. I think that is the obvious thing to do. In fact, these amendments go somewhat further than seeking parity with Great Britain because in Great Britain the rate of disablement pension payable to persons under the age of 17 is 67/6d. Here the request is that the age should be reduced to 17 years and the rate would be 77/6d. The principle is that 18 years is the age that applies generally in social welfare schemes and I propose to retain it in this Bill.
With regard to amendment No. 23, Table II, providing reduced rates only to persons between the ages of 17 and 18 years and under the age of 17 years, this would have the effect of removing the existing provision for reduced rates for certain married women over the age of 18 years without dependants. If this amendment were accepted the result would be that no rate of benefit would be provided for such women. In any case, the main request is to reduce the age from 18 years to 17 years and I am not prepared to do that because 18 is the age in the social welfare schemes generally.
Amendment, by leave, withdrawn.
Amendments Nos. 19 and 20 not moved.
Amendment No. 21 has been discussed already with amendment No. 10.
Amendment No. 21 not moved.
I move amendment No. 22:
In subsection (8), page 12, to substitute the following figures for the figures in Table I, under the heading "Weekly rate”:
"135/-
121½/-
108/-
94½/-
81/-
67½/-
54/-
40½/-
27/-".
This amendment seeks to increase the benefits provided here and to bring them up to the same level as that which obtains in Northern Ireland and Great Britain. The feeling is that the benefits are not good enough. I dealt with the comparisons here and in Northern Ireland on the Second Stage. We think, in fact, that the Minister will have enough money to pay the higher benefits and it is because of that that we are moving this amendment. We seek to have the benefits improved up to the higher level.
This is similar to other amendments that were proposed and as I explained the benefits proposed in the Bill correspond to those that were suggested by the Minority Report of the Commission, adjusted for increases in the cost of living that have taken place here since then. The point was made that there are higher rates payable in Great Britain but to complete the picture it should be pointed out that the average weekly earnings are also greater in Great Britain and that, in fact, the rate proposed here is a higher percentage of the average earnings here than is available in Great Britain. The average earnings of the male industrial worker here are 70 per cent of the average in Great Britain. If the same proportion was to be applied here the rate of injury benefit would be 94/6d. We are, in fact, proposing to give 115/-.
When you take into account, in addition to that, the fact that the workman here pays nothing, that the contribution is solely by the employer, whereas in Great Britain the worker contributes five-twelfths of the cost, we are not doing badly here at all. In any case, as I say, both sections of the Commission had roughly similar ideas as to the amount the economy can reasonably be expected to provide for this social service. I am roughly working within those limits.
The trade unions apparently will have to do more to try to improve the general margin of wages. Apparently they are at a comparatively low level in this country despite what might be said by some of the Minister's colleagues. I suppose we will have to get on with the job. It is a matter for another day.
Amendment, by leave, withdrawn.
Amendment No. 23 has been disposed of.
Amendment No. 23 not moved.
Amendment No. 24 has been disposed of. It was taken with amendment No. 15.
Amendment No. 24 not moved.
I move amendment No. 25:
In page 13, to delete subsection (10). The point here is that there seems to be some limitation on the right of appeal in those cases. It says here:
An appeal shall not lie against a provisional assessment of the extent of disablement before the expiration of two years from the date of the first assessment of the extent of disablement in the case, nor where the period taken into account by the assessment falls wholly within those two years.
This seems to be quite inappropriate. There should be no limitation on the right of appeal of an injured workman in such a case. There does not exist any such limitation and as far as I know a workman can go to court at any time to have the amount of compensation varied. I should like to hear the Minister on this particular point.
This, of course, refers only to provisional assessments and the circumstances in which provisional assessments will be made are set out in subsection (5) of section 9. This should only be considered in conjunction with those circumstances in which provisional assessment will be made. I should, first of all, point out that a provisional assessment for a period of two years is very unlikely to be made. That period was put in as the absolute limit for which it would be expected that a provisional assessment might be made.
As I have said, the circumstances in which those assessments are made are set out in subsection (5) of section 9. Those circumstances require that there will be a possibility of either predictable or unpredictable changes in the workman's condition at the time of examination. The period to be covered by the provisional assessment would be limited to the period before a change is considered possible. It is at all times understood that the provisional assessment will be followed by a further assessment so it seems clear that a provisional assessment is proper only in a case where there is uncertainty as to the general course of the workman's condition, which has not yet become stabilised, and where a final assessment is not possible but in every such case a final assessment, which shall of course be subject to appeal, must eventually be made.
A similar scheme to this, which we have already adverted to, has been in operation for some time in Great Britain and Northern Ireland. In a recent assessment of the scheme it was shown that when a case came for review after provisional assessment the result almost always was termination of the benefit, its continuation at the same rate or its confirmation for life. The general pattern was that the claimant either recovered completely or that his condition stabilised and it was only in very rare cases that there was any deterioration of his condition. In a case where there is likely to be any deterioration, the case can always be revised at the request of the workman concerned by submitting medical evidence to the effect that his condition has deteriorated. The assessment will then be reviewed. This was considered on the Committee Stage in the Dáil and I am convinced that the provision made here is, in fact, adequate to cover all the circumstances that might arise. The assessment can be reviewed at any time on the submission of evidence that the workman's condition has deteriorated.
In this debate I am beginning to feel like the gentleman who reached for his gun when the word "culture" was mentioned. I am beginning to reach for my gun when I hear the words "Britain and Northern Ireland" fall from the Minister's mouth.
Shame on him and I thought he was an Irish Irelander.
The Minister says a workman can submit his case again and be reheard but, in fact, the wording of the section is that an appeal shall not lie against a provisional assessment of the extent of disablement before the expiration of two years... What the Minister is trying to suggest is that he can appeal but the claim can only be submitted to the person who first made the provisional assessment. The workman cannot appeal to anybody else and he can only ask out of charity that the original decision be reviewed by the person who made the original decision. He has no right of appeal. The subsection proposes to take any right he has. At the moment he can go to the court at any time and have his compensation position varied. Nothing in what the Minister has said about Britain and Northern Ireland will protect the worker against a provisional assessment which may have been an error.
Subsection (5) (a) says that a provisional assessment shall be made taking into account such shorter period only as seems reasonable having regard to his condition and the possibility aforesaid. The Minister spoke about changes in the workman's condition. The very unsatisfactory position the Minister speaks for makes a provisional assessment necessary for the purpose of giving grounds to the workman to appeal if it transpires his condition differs from that on which he was originally assessed. The Minister says the workman might have the right to go back again, out of charity, but if the man who made the assessment is obdurate—we have all met people of that kind in this House who are unwilling to change their original decision even when that decision was shown to have been wrong—where is the workman left? He cannot go back for two years. What is the purpose of legislating against the worker in that way? If the Minister says the fund must be protected against abuse, let him show the danger of this abuse and we may listen to him. He says: "The workman's condition will not change so we will fix him proper and make sure he has no right of appeal for two years". Perhaps I have misunderstood the Minister. If I have got it wrong I shall give the Minister a chance to put me right.
There is no question of adducing the British scheme as an alibi, as the Senator well knows. I do not know whether there is any point in referring to it again——
The words keep escaping the Minister's lips.
They do not. It should be helpful to the Senator to approach this in a reasonable way and with that purpose I have adverted to what has been the experience in Great Britain and Northern Ireland.
Why only in Britain?
Of course, if Senator FitzGerald does not wish to listen that is all right. He may not be interested in it. The experience there has been that the most usual thing is for an improvement to take place rather than a deterioration in these cases and, of course, there is no question of depriving a person of his right of appeal for two years. It would be in very exceptional cases that a provisional assessment would be made for anything approaching a period as long as two years. The more normal thing would be for quite a short period and an appeal would not be appropriate there. It can already be reviewed on the production of evidence to the effect that the workman's condition has deteriorated. I can see no reason why there should be any need for an appeals procedure in addition to that. It will be normal to review this type of case frequently because the fact of the assessment being provisional indicates that change is possible. The thing that will normally happen on review will be that the workman's condition will be found to have improved rather than deteriorated.
The Minister has not, in fact, given any reason for having this two year provision. He has given two reasons for not having it—one that the man's condition is uncertain and, two, that the provisional assessment will rarely extend to two years. That being the case, why does the Minister want to take away a right for two years if the provisional assessment is for a shorter period? The Minister made a number of other points which are irrelevant but he has given no reason for taking away the workman's right of appeal. He has cast doubts on the importance of the situation created by the subsection but has not at any time shown why this should be done. He may think the rights of the workman are not very important, that if the period is 18 months or a year that is all right— that the workman can ask to have his position reviewed but that he can have no right of appeal. I do not think that, and there are other people in the House who do not think so. Unless the Minister gives a reason, I do not think we can possibly accept a subsection of this kind. If there is a reason for introducing the subsection, the Minister should give it. If there is not, he should withdraw it. The point is not how important or how little difference the subsection will make. The point is that the Minister should tell us what it is doing there. Why is it so important that the Minister wants to hang on to it? Other than the fact that it is done in England he has given us no reason.
That reason was not given. My only reference to Britain was to refer to the experience there in such cases. The reason why there is no need for an appeal and why it would be an unnecessary complication is that these cases are subject to practically continuous review and there is no need for an appeal in addition to this review which will normally take place.
The Minister is simply saying that there are no other answers, that the situation might not be very serious. He has given us no reason for taking away the right of appeal. To say the workman's case will be reviewed by some Deciding Officer regularly and that we should leave it to chance is quite unacceptable when the Minister has given no single reason for removing the right of appeal. He has denied he gave the reason that it is being done in Britain. Therefore, he has given us no reason beyond the use of the word "complication". I do not think we can possibly accept this subsection when the Minister has no reason whatever for introducing it.
I do not quite follow or understand what is being said by the Minister in this debate. First of all, we had a long discussion about abolishing the right of appeal to the courts. We have now, in this Bill, abolished the right of appeal of a workman who is injured to the Supreme Court which he had under existing law. Then we are told by the Minister: "That may be all right in old times but now we are interlocking this particular code of occupational injuries benefit with the social welfare code and we are going to provide the same kind of appeal for workmen as is provided in the Social Welfare Acts."
Now we find that under section 9, subsection (10) we are not even going to give them the benefit of that limited appeal under the Social Welfare Acts for a period of two years, where there is a provisional assessment. I think I am right in saying that that is the position but I am beginning to wonder where it will all end up. The Minister says that these cases will be reviewed from time to time. They will be reviewed in that impersonal way so beloved of the Minister—to which he has referred—which is contained in page 203 of the Commission's Report on Workmen's Compensation. The review will be a very impersonal one and I should like the Minister to indicate to us what kind of evidence the Deciding Officer will have when he reviews one of these cases.
The Minister said that in a lot of these cases the workman will improve. I think it is because there is doubt as to the prognosis in the particular case that the provisional assessment will be made. Will the Minister say for one minute that in the case of neurasthenia which is not at all uncommon in the case of workmen, that will improve with time. In fact, it does not; it worsens with time but if the workman is tied to a particular assessment as to the amount of his disability he cannot, or anybody acting on his behalf if he is a neurasthenic, have any appeal for a period of two years if a provisional assessment has been made in his case.
I am beginning to wonder whether or not we are legislating against the workmen in this particular section rather than what we were led to believe we were doing—legislating for the workmen and for their benefit. The House should remember, when we are talking about deciding officers, we are talking about the Assistant Principal Officer or the Higher Executive Officer sitting in the Department of Social Welfare. We are talking about people in the lowest clerical grade recruited to the Civil Service. That is who the deciding officers will be and the rights of a workman, his family and dependants will be determined by a clerical officer in the Department of Social Welfare. That is what the Minister for Social Welfare is offering injured workmen, instead of the right of appeal to the Circuit Court and thereafter, if the workman and his legal advisers thought well of it, to the Supreme Court. Even that limited form of appeal will not now be available to him for a period of two years. Mind you, in the Civil Service they have great notions about time. Some people say time means nothing to them. But they have this kind of a thing—they have temporary appointments made, and the temporary appointments of some civil servants last from the age of, maybe, 33 to 65, when they retire; they are temporary over a whole period of 30 years. That is a fact, it is not fancy; that is happening today and has happened before.
We have provisional assessments and the provisional assessments, as far as I can see, can continue to be a run of provisional assessments because if you look at paragraph (a), subsection (5) of section 9 you will find:
a provisional assessment shall be made, taking into account such shorter period only as seems reasonable having regard to his condition and the possibility aforesaid, and
paragraph (b) says:
on the next assessment, the period to be taken into account shall begin with the end of the period taken into account by the provisional assessment.
So that one can see a man being provisionally assessed for a period of 18 months and then he comes up at the end of 18 months and is re-assessed. Of course, we all know the grave doubts and anxieties that beset civil servants' minds and the indecision with which they are plagued. I can quite easily see that at the end of 18 months a workman would come up—there may be doctors' certificates, I do not know what kind of evidence will be available in cases of that kind; the Minister has not told us—but there may be medical certificates and the Deciding Officer may say: "I do not know, we will let it go for another 12 months and see how he fares at the end of that time." The workman may come up again at the end of 12 months and one medical report may say: "This man has made some slight progress and, perhaps, in another short while, if he responds to the treatment we have recently given him, he may be expected to make a substantial improvement". Of course, the workman goes back, his case is postponed for another year and you have another provisional assessment. You can have provisional assessments going on, I do not know for what period. That is as far as I read paragraph (b) of subsection (5) of section 9. During that period it seems to me, while there is a provisional assessment, an appeal shall not lie against that assessment under subsection (10) of section 9.
If that is the kind of way we want to treat our workmen, the House should be quite clear that that is what we are enacting in the legislation. If my interpretation of that is correct, I do not think there is a single person in this House who thinks for a single moment that that is favourable legislation for the workmen. I think the Minister should allow this amendment.
I have listened to the Minister particularly carefully but if he has a case for continuing this section in the Bill, I do not think he has made it very clearly, to me anyway. I am wondering whether or not he would like to look at this again, and have regard to the point made by Senator O'Quigley that you could have continuing temporary assessments or provisional assessments, which I do not think the Minister has in mind anyway, but it does seem under the Bill, as it now stands, that you could have that situation. It would certainly be a grave injustice that the worker could not have an appeal, in those circumstances, and have it decided.
I do not know about clerical officers in the Civil Service. I am sure they can make up their minds as well as anybody else but we are all inclined, as human beings, to avoid making up our minds if the matter is not decisive and here you could have a conflict of evidence when making a provisional assessment. If you are going to have a situation that this would be a continuing process, then it would be quite wrong that the worker would be deprived of his right or debarred from making an appeal. I am wondering whether or not the Minister would like to think about it between now and Report Stage.
The Minister referred to a "continuous" review. I wonder if he could explain to me what would be the value of a continuous review in cases like these where the right of appeal is taken away, or can the Deciding Officer— the man who perhaps fixed the assessment—take any action to alter the provisional assessment in the interval rather than hang on for two years?
The Deciding Officer, will, of course, be acting on medical opinion. If there is any deterioration within the period of the provisional assessment, the workman himself may ask for a review of his case and that is written——
Has he a right to a review?
Yes, it is provided for in section 46 of the Social Welfare Act, 1952 that a Deciding Officer may, at any time and from time to time, review any decision of a Deciding Officer if the decision were erroneous in the light of new evidence or there has been a change of circumstances, i.e. if there is a submission of evidence to show that his condition has deteriorated or that the provisional assessment was made erroneously.
They are two extraordinary events, one or other of which must happen.
Either he submits evidence to show that the provisional assessment was erroneous or else that his condition had deteriorated. Those are the only two conceivable reasons on which the assessment should be changed. It seems to me to be practically the same thing as an appeal and, in effect, I think it will be more in the workman's favour than to revoke this and instead substitute the right, as Senators call it, of an appeal against a thing——
Who suggested removing that?
——which of its very nature is a temporary thing and which has to be finally decided at some stage.
Who suggested removing the right to look for an appeal? I do not recall any Senators saying that. The only suggestion made was that the Minister should remove the provision that the right of appeal should be blocked. How the Minister can say, and how he has the face to tell this House, that inserting a clause to take away the workman's right of appeal improves the workman's position, I cannot understand. The Minister does not seem to be talking any sense here today.
There does not seem to be much use in talking about it.
It is always the marginal case that gives rise to the difficulty. In the clear case where workmen's compensation was payable under the existing code, it was always paid. It was the marginal case where an accident arose in the course of employment that the small number of cases reached the stage where they went to the Circuit Court and thereafter a still smaller number went to the Supreme Court. What we are concerned with is the marginal case where doubt exists.
As the Minister says, a workman will have the right to review, the right being based on his being able to show that the assessment was erroneous. Let us look at the practical way that works. He has to show to the Deciding Officer who has already made the provisional assessment that he was erroneous. In other words, if the Minister concedes, he is entitled to appeal to a Deciding Officer against the Deciding Officer's erronoueous decision. Is it human, or is it in accordance with human nature, or in the experience of the Members of this House, to say that a man who has made a decision and who has been told "you were wrong in that" to admit he was wrong?
A few Ministers could anyway.
How many of us admit we are wrong? When it is manifest we are slow to do it? The Deciding Officer will not admit and put on paper, or put on a file in a Government Department a note to the effect that he will institute a review of the workman's case because the previous decision was erroneous. I have considerable experience of civil servants and of the caution with which they surround themselves and, mind you, the instinct of self-preservation is enormously strong in all of us but nowhere more so than in people of that kind. The Minister is saying that the right of review by a workman depends on whether or not the Deciding Officer will write on the file: "Early decision erroneous; let this case be reviewed".
So, we are making the appeal. Now the Minister is offering the workmen of this country, if they happen to fall into the category where a provisional assessment is made, an appeal to a man who has already made an erroneous decision. That is the first ground he is giving—the right of review. I do not believe there is a single Member in this House who believes that that is worth anything to the workman. The next ground is that if the condition has worsened, then the case will be reviewed. If the condition has worsened ought the workman then not be clearly entitled to appeal, not merely to have it reviewed by the man who has already formed an opinion about it? It is demanding too much of human nature to ask the man who has already formed an opinion about a workman to review his decision on the basis of some evidence. I do not know what the nature of the evidence will be, will it be a medical officer's certificate, will it be a lengthy medical report? If it is the case of a workman who has, say, lost two of his fingers and has a certain disability as to the extent of his grip, how will the assessment be reviewed? At one stage the grip may be only 30 per cent of what it should be. The next medical report may indicate that the grip is 40 per cent of what it should be or that it is only 25 per cent of what it should be. Will the assessment be reviewed on the basis that there is a deterioration from 30 per cent grip to a 25 per cent grip because, perhaps, arthritis has intervened in the meantime or the man is subject to rheumatism and his grip is not as good as it used to be?
Would that constitute evidence of deterioration to precipitate the Deciding Officer into a review of the case. The whole thing seems to me hopelessly weighted against any action being taken in favour of the workman. If a workman is able to establish any of these things, that his condition has worsened, that by reason of some further medical report, the first assessment of his medical officer was not right or that there was some ambiguity in his medical report or the Deciding Officer misinterpreted it, it seems to be perfectly fair to say that he should be entitled to the miserable form of appeal we provide in this Act to an Appeals Officer. I hope the House will share that view with me.
Will the Minister look at this between now and Report Stage? I do not see the point in its being passed by a majority.
This is an essential part of the Bill if it is to work at all. If the provision is left a provisional assessment will only be given where a man's condition is likely to change and where it would not be possible to predict what would be the eventual outcome of whatever treatment he is undergoing. In circumstances such as this an appeal would generally show an improvement rather than a disimprovement.
That is an assumption.
How does the Minister make that statement?
These are the circumstances in which a provisional assessment would be given. I have already explained that the production of medical evidence that was not available at the time the provisional assessment was made would be cause for reopening the case. I have looked into this thoroughly and I am convinced that in this condition of uncertainty what is provided would be to the workman's advantage. I looked into it closely between the Commitee Stage and the Report Stage in the Dáil and I do not propose to change it.
How can the Minister in commonsense say that any appeal would normally show an improvement in the workman's condition, not a worsening of his condition? How could he think that if the workman gives evidence that his condition has deteriorated that the evidence is normally held to show that he has got better?
It is only in conditions such as that that an assessment would be made. I think that the only object of Senator FitzGerald and Senator O'Quigley is to try to make this Bill unworkable.
How then does the Minister propose to deal with the case of a neurasthenic?
If there is medical evidence of deterioration the assessment will be reviewed. This is only a provisional assessment.
Does not an awful lot depend in the case of a neurasthenic on the impression he will make on somebody who has to decide his case? He cannot decide whether a person is a genuine neurasthenic or a counterfeit neurasthenic by anything written down on paper. That cannot be done. If a person's neurasthenic condition is worsening no Deciding Officer and no Appeals Officer is in any position to assess the degree of neurasthenia or the genuineness of it. I am sorry that Senator Alton is not here to back me up on this, but in my experience no Appeals Officer or Deciding Officer will be able to decide that on the basis of what is written on paper. It is absolutely essential that the man should be seen. The man will not be seen by the Deciding Officer and he may not be seen by the Appeals Officer. This is one case in which an appeal is vitally necessary, even this miserable form of appeal which the Minister is providing.
Senator O'Quigley seems not to understand the manner of appeal. These things will be decided on the basis of medical evidence, and if there is fresh medical evidence produced which was not available when the provisional assessment was made, then the case will be revised on the basis of that medical evidence.
Medical evidence is only half the story when it comes to psychiatric ailments. The Deciding Officer will never be able to make a proper assessment or review a decision on anything written on paper. If he wants to form a genuine impression of the condition of a workman who is a neurasthenic and decide whether the degree of neurasthenia is deteriorating or increasing, that can only be done by having a look at the person. The Deciding Officer can never see the person because that is not the way the Deciding Officers operate. They only operate on paper. At least the Appeals Officer can bring in the person and see him and make up his own mind. That is one of the disadvantages involved in this new system.
The case being made now seems to be that the Deciding Officer should decide the case himself without medical evidence.
The Minister knows very well that I did not say anything of the kind. I said that he is only deciding upon half the evidence, because medical evidence is only half evidence when you are dealing with a neurasthenic.
It seems to me that there is no great sincerity about all this. Senator O'Quigley is asking in effect if the Appeals Officer will be in any position to make a decision in regard to a psychiatric case. Will a circuit judge be in any better position? Neither Senator O'Quigley nor Senator FitzGerald, when this discussion began, was even aware that there was a right of review in the principal Act. They only discovered that from the Minister. Their whole case was based on the supposition that there was no right of review.
The right of review means nothing.
I have not based any case on whether or not there is a right of review. I never raised that as being the issue. The issue is whether there should be a right of appeal to somebody else. I should like the Minister to explain what he meant by saying that an appeal by a workman on the grounds of an improvement in his condition would normally lead to a decision that his condition had improved. This throws a most extraordinary light on how the Department of Social Welfare works, whether or not the Minister is aware of it, that if a workman has the nerve to appeal the decision will normally be against him.
He did not say anything of the sort.
That is what the Minister said, and the record will show it.
(Interruptions.)
Question put: "That the words proposed to be deleted stand part of the section".
The Committee divided: Tá, 24; Níl, 13.
Tá
- Ahern, Liam.
- Boland, Gerald.
- Brennan, John J.
- Browne, Seán.
- Cole, John C.
- Eachthéirn, Cáit Uí.
- Egan, Kieran P.
- Farrell, Joseph.
- Fitzsimons, Patrick.
- Flanagan, Thomas P.
- Honan, Dermot P.
- McGlinchey, Bernard.
- McGowan, Patrick.
- Martin, James J.
- Nash, John Joseph.
- Ó Donnabháin, Seán.
- O'Kennedy, Michael.
- Ormonde, John.
- Ryan, Eoin.
- Ryan, James.
- Ryan, Patrick W.
- Ryan, William.
- Teehan, Patrick J.
- Yeats, Michael.
Níl
- Conlan, John F.
- Davidson, Mary F.
- FitzGerald, Garret M.D.
- Fitzgerald, John.
- McDonald, Charles.
- McHugh, Vincent.
- McQuillan, Jack.
- Malone, Patrick.
- Mannion, John.
- Murphy, Dominick F.
- O'Quigley, John B.
- O'Sullivan, Denis J.
- Rooney, Éamon.
Tellers: Tá, Senators Browne and Farrell; Níl, Senators McDonald and Malone.
Question declared carried.
Section 9 agreed to.
SECTION 10.
I move amendment No. 26:
In subsection (1), line 2, to delete "forty shillings" and substitute "fifty shillings".
I suppose I had better make it clear to the Seanad that I do not believe it is possible to support a wife on 50/-, because that is what we are attempting to provide in this amendment. At least we are saying it is better than 40/-, which apparently is the Minister's experience in this respect. We are not dealing now with relativity with wages in Great Britain, but with the provision which must be made for the dependent wife of an injured workman. Even though it may upset certain people we must make the point that in Northern Ireland they do provide for an additional £2 10s in respect of a dependent wife. Here we are proposing to provide £2. Any of us who have experience of travelling around the 32 Counties will agree that the cost of living is lower in Northern Ireland than it is here. The cost of food, clothing, housing generally, is lower in Northern Ireland than it is here. It is reasonable for us to press in this amendment that the provision to be made for a dependent wife should be higher than 40/-, and what we are suggesting is 50/-. I hope the Minister can accept this amendment which we regard as of very great importance.
This is the same thing again. We are providing the rates for dependants which are provided in other social insurance schemes. The rate is 40/- for an adult dependant, 13/-for each of the first two children, and 8/- for each other child.
That is all very fine, but I do not think that in itself it is sufficient bar against making this provision for a dependent wife. This will be financed apart from the social welfare Fund. A degree of State subsidisation is involved. It will be financed through the employers, and we think that with the level of the stamp we will easily be able to provide this extra benefit for a dependent wife. We cannot accept that simply because £2 is the amount provided for a dependent wife in other social welfare benefits, that is necessarily a bar to providing £2 10s in this case.
I know it would be much better if we could provide even more than the 50/-, but we have to come to some decision related to what it has been found possible to do in other social insurance schemes here. We would all like to provide more, but this is as much as it is feasible to ask us to provide. This refers only to the injury benefit which is available for the first 26 weeks of incapacity. If the workman continues to be incapable of work after that first period he will qualify for disablement benefit and, in addition, either an unemployability supplement or disability benefit. While his position, financially, may not be particularly comfortable, still it will be a lot better than under any other social insurance scheme. We have done reasonably well in regard to this, taking our general circumstances into account.
It is all right to say that this applies only for 26 weeks. Most workers earning £10, £12 and £13 in the city would find the loss of a week's pay or even a day's pay a very great disaster. I am sure the Minister knows they are simply at the pin of their collars. It is not true to say that it is not a great hardship to say to a person who has been injured that after 26 weeks this benefit will change, that he might do better and that in the meantime he is all right. This is a case where a man is injured at his work and it is not asking too much that in providing for his wife, this benefit should be 50/- instead of 40/-.
Could the Minister indicate what is the relationship between ordinary disability benefit payable, say, to a married man and the benefit that will be obtained in the first instance by an injured workman? What are the two sums?
The personal rate of injury benefit is 115/- and the personal disability benefit is 52/6d.
Are we not in this attempting to improve the position of the weekly income as compared with the weekly income of a person who is getting other disability benefits?
That is being done already.
That is in the Bill. It seems a very poor argument to say that the amounts provided in section 10 are in accord with what is provided under other social welfare schemes and, therefore, we are not to increase them. I would have thought it desirable that benefits of all kinds should be improving. We are, in fact, increasing, under this Bill, the amount of compensation that the workman will get as compared with the present maximum of £4 10s. It is no argument to say that because the benefit payable to the wife under the existing social welfare schemes is 40/- then it must be 40/-, too, under the Occupational Injuries Bill. It would be desirable that it would be increased pari passu with the increased amount in the occupational injuries benefit to the same extent as it has been increased under the disability benefit of the Social Welfare Acts.
Question put: "That the words proposed to be deleted stand part of the section."
The Committee divided: Tá, 24; Níl, 13.
Tá
- Ahern, Liam.
- Boland, Gerald.
- Brennan, John J.
- Browne, Seán.
- Cole, John C.
- Eachthéirn, Cáit Uí.
- Egan, Kieran P.
- Farrell, Joseph.
- Fitzsimons, Patrick.
- Flanagan, Thomas P.
- Honan, Dermot P.
- McGlinchey, Bernard.
- McGowan, Patrick.
- Martin, James J.
- Nash, John Joseph.
- Ó Donnabháin, Seán.
- O'Kennedy, Michael.
- Ormonde, John.
- Ryan, Eoin.
- Ryan, James.
- Ryan, Patrick W.
- Ryan, William.
- Teehan, Patrick J.
- Yeats, Michael.
Níl
- Conlan, John F.
- Davidson, Mary F.
- FitzGerald, Garret M.D.
- Fitzgerald, John.
- McDonald, Charles.
- McHugh, Vincent.
- McQuillan, Jack.
- Malone, Patrick.
- Mannion, John.
- Murphy, Dominick F.
- O'Quigley, John B.
- O'Sullivan, Denis J.
- Rooney, Éamon.
Tellers: Tá, Senators Browne and Farrell; Níl, Senators J. Fitzgerald and Murphy.
Question declared carried.
Question proposed: "That section 10 stand part of the Bill".
Apparently the dependants contemplated in this section are a wife, where the husband is a workman, a husband who is incapacitated and where the wife is the injured party, and a workman who is a single man or a widower and is maintaining wholly or mainly a female person over the age of 16 years having the care of one or more than one child who normally resides with him. That is all right as far as it goes but it occurs to me that you could have a case of an adult female or male who would be hopelessly incapacitated because of physical injury or mental handicap from earning a living and who would be a dependant of the workman. I wonder if the Minister has made provision elsewhere in the Bill to provide for that kind of adult, whether male or female. It seems to me that such a person is as much a dependant of a workman as any of the other categories mentioned in the section.
There is no provision for such a dependant. It is the same as is normal in other social welfare schemes.
Am I right in thinking that even in existing social welfare legislation there are cases of adult persons of less than 21 years of age not entitled to disability benefit though they are quite clearly unable to earn a living themselves and who to all intents and purposes are in the same position as a child of ten who would be a dependant of an injured workman? Is there that kind of lacuna? Such persons, until they qualify for benefit under ordinary social welfare legislation, should be catered for here in the same way as the other categories mentioned in the section.
There is no provision for them in this Bill or in the other social insurance schemes. The only provision in such cases is the disabled persons maintenance allowance which, as Senators know, is based on a means test which at present applies to the family rather than the individual.
If there was a widow looking after an adult who is a mongoloid, or mentally or physically handicapped to the extent of being unable to earn a living, the family income may be such as to disentitle that handicapped adult from a disabled persons allowance. Once the person becomes incapacitated by reason of an accident, the whole rigmarole of applying to the Department and of having an investigation must begin and it adds another burden to the insured person to have to fight the whole way for an allowance for the mentally handicapped dependant. I suggest the Minister consider introducing an amendment to cater for such cases. These unfortunate people can do nothing to help themselves and I do not think it is good enough that the legislature should pass them over.
I do not deny there is great scope for improvement in social welfare in this country as there is in other countries but I do not think this is the way to start it. It should be dealt with, when possible, in a general way. The disabled persons maintenance allowance comes under the Department of Health, not the Department of Social Welfare. The Minister for Health has announced in his White Paper his intention to base this in the future on a means test on the individual himself rather than on the family. That appears to be the best that can be done at the moment at any rate.
Question put and agreed to.
SECTION 11.
The Chair suggests that amendments Nos. 27, 28, 29, 42, 43, 44, 45 and 46 be taken together.
I move amendment No. 27:
In subsection (1), line 22, to delete "thirteen shillings" and substitute "twenty-two shillings and sixpence".
It is very difficult to take such a large group of amendments together. In fact, they all deal with the case of children and the argument used by Senator Murphy in regard to the previous amendment holds here even more so because the amounts are very small and as the number of children goes up the amounts get smaller. There is no possibility of sharing any surplus from the first child who gets a little bit more than the others. The whole set of amendments aims at parity with the Northern Ireland and British schemes. It really does not matter what we are looking for so long as we seek to raise the amounts of money involved because, having regard to present money values, these amounts are simply ridiculous and go nowhere, except to keep children in starvation.
We regret that the Minister is not prepared to accept the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 28:
In subsection (1), lines 22 to 26, to delete all words from and including "a child" in line 22 to the end of the subsection and substitute "each child qualified for the purpose of this Act".
This is the same principle as that contained in Senator Miss Davidson's amendment, except that Senator Miss Davidson's amendment is a trifle more generous than the one I have moved. It seems to me that we have been getting away all the time from differentiating between the second and other children in social welfare legislation. Under the Children's Allowances Act, no child allowance was payable in respect of the first two children. Then we got away from that and we paid a child allowance in respect of the second child. I think we now pay a smaller allowance in respect of the first child under the Children's Allowances Act. That seems to be the policy of the legislature—differentiating between the first two children. It seems to me that, even as matters stand, in fact, under the Children's Allowances Acts, the allowance in respect of the first two children is always smaller than in respect of the subsequent children. But, here we are reversing the situation by paying 13/-in respect of:
...a child qualified for the purposes of this Act or each of two children so qualified who normally resides or reside with the beneficiary and, in addition, where there are more than two such children, by eight shillings in respect of each such child in excess of two.
It is quite clear to anybody who goes into a grocery shop in modern times that the amount of food you will get for 8/- would fit in your pocket; it is not even an armful. I am constantly surprised when I do these ordinary household messages at the cost of a loaf of bread, the price of butter—4/4 per lb, with another 3d to come. To say that you can feed a child, a boy, of 15 or 16 years, on 8/- or 13/- a week is quite ludicrous. We must have regard especially to the fact that people may be on an income of £14, £15 or £16 a week and then they find themselves slashed to occupational injuries benefit. To provide them only with these moderate increases seems to me to be leaving out of account altogether what is involved in the running of an ordinary house at the present time.
Of course, the Minister, I know, will reply: "We would like to do all of this; we would like to increase these benefits, and all the rest of it" but if we are introducing a workmen's compensation code in substitution for something which is unsuitable we ought to make a really genuine effort to put into this Bill some of the things which all of us have felt for a long time ought to have been done under the old Workmen's Compensation Acts. Merely to give benefit at the rate of 13/- and 8/-; 34/- a week or 42/- a week, that is 10/6 each for four children who may be 15 years of age still going to school with healthy appetites is, to my mind, not making a proper effort.
It may well be that the Minister could also say that to do this would increase disproportionately the contribution to be paid. I do not know what the view of the workmen would be but I am rather inclined to think that if we were to go the distance of providing a really generous code of workmen's compensation it might well be, even on an optional or voluntary basis, that there are quite a large number of workmen in the community who might be prepared to pay a small contribution in order to get the larger benefits. I do not know what would be the up-to-date view on that in trade union circles. Senator Murphy would know more about that than I. If that were the case, then I think that if we do not do it in this Bill, the Minister should certainly ascertain the opinion of people in trade union circles on this kind of thing and bring in a kind of Social Welfare (Occupational Injuries) Bill which would be of real benefit to injured workmen and their families and not compel, as often happens, workmen to return to work long before they are properly fitted for it because they cannot look at the starving faces of their children and the harrowed look on their wives' faces trying to make ends meet on workmen's benefit.
The principle in this series of amendments is very important. I would again appeal to the Minister to look at the position sympathetically here. I made the point on Second Reading that the trade unions, naturally—many of them deal with workers on both sides of the Border—are inclined to look at the benefits and make comparisons. I was pointing out that, on the adult rate here, we were starting off a £1 a week lower than in Northern Ireland. The Minister, maybe, has a point in saying that the wage levels here, unfortunately, are lower than in Northern Ireland and Great Britain. I was showing that the more the responsibility of the worker, the worse his position was in relation to a corresponding worker in Northern Ireland. If he was married, he would be 30/- a week worse off; if he had one child he would be 39/6d a week worse off and so on up to the stage where he had six children and, at which stage, he would be £3 6s 6d a week worse off in relation to occupational injuries benefit than his counterpart in Northern Ireland.
I do not mind again repeating that, in my view, the cost of living is much higher here—especially in regard to feeding children, buying milk, butter, bread and so on—than in Northern Ireland. This is a very serious problem. If we are making a change here in regard to industrial injuries, I think we should try to be as generous as we can and provide proper benefits. If the Minister has not been able to do it in the adult range I would ask him to look at the question of provision for the children. I do not know what the possible cost of this would be but I do suggest that it would prove an impossible burden on the fund of the injured worker who is married and the injured worker with six children. We should strain to the utmost to provide for these people. It is not the fault of the worker if in the course of his work he meets with an accident. He has suffered as a result of the injury but surely it is rubbing salt into the wound if his wife and children suffer also and the more children he has the greater the suffering will be.
I appeal strongly to the Minister to look at this again to see if he can improve the benefits of the children of workers affected by this Bill.
First of all, on a point of detail I should like to point out here, again, that the amendments put down by Senators Murphy and Miss Davidson are, in fact, proposing something more than parity with the British scheme.
Give us parity and we will settle for it.
The British scheme provides 22/6d for the first child, whereas the amendments here would provide that rate for the first two children. It is all right for Senators to say that the amounts of increase provided for children are ridiculous but it is not a true picture to say that we give 13/-to support the child. You just cannot consider these amounts in isolation. It is a fact that in employment the married worker is given no more than the single worker. We might as well say then that the married man has nothing to support his wife on. The fact is that married people and their families just cannot have the same way of life as the single man.
This addition of 13/- in respect of the first two children must be taken in conjunction with the other amounts provided. In the case of injury benefit it is 115/- for the person himself with an increase of 40/- for the wife and 13/- for each of the first two children and 8/- for each other child. If after the injury benefit period is over the person is still incapable of work there is an additional 52/6d, so that for the person who suffers severe disablement and is incapable of work and who has one child, the total amount payable would be £11 0s 6d. During the injury benefit period it is true that would be only £8 8s. If he has two children when he comes on to disablement benefit and is still incapable of work, the amount would be £11 13s 6d and if he has four children it would be £12 9s 6d. During the injury period the extra 52/6 would not be payable.
These amounts are not sufficient, in most cases anyway, to fully compensate for the loss of income, but they are fairly reasonable provisions and certainly a lot better than have been available and a lot better than was recommended by the Majority of the Commission which did not recommend any increase at all in respect of the dependants whether adult or child dependants. It is true to say that the disparity in the total amount available to a worker in Great Britain and here increases with the number of children but I do not think it is true to say that the loss of the standard of living suffered by the workman increases in proportion to the number of children, which is what I understand Senator Murphy to imply.
The total amount of benefit payable to him does come nearer to his former income according to the number of children, so that, in fact, the more children a man has the less is his total loss of income as a result of going on to this benefit.
With regard to the cost, we cannot just take all these amendments proposing increases in isolation. It is all right for Senators to say: "Accept this one and accept that one." The total estimated extra cost of these amendments put down by the two Labour Senators would be in the region of £750,000, which would require an extra 6d on the stamp for each worker. It was generally agreed by both the Minority and the Majority of the Commission what the total amount was that it was reasonable to impose on industry generally for this insurance and I am working roughly within that amount. To adopt the higher rate suggested here would entail an extra expenditure of £750,000.
Has the Minister made any inquiry to ascertain what the reaction of workers would be to paying an extra 6d per week, in order to get these benefits? It might well be that if they paid an extra 6d, or if the State were to pay 3d and the worker 3d that would be getting somewhere towards realising a proper code for workmen's compensation. Then, afterwards, having established the precedent we could go on from that in relation to disability benefit. Has the Minister any idea as to what the reaction would be and, if not, will he probe that situation?
This has always been the liability of employers and I am not changing that. My decision was to leave the liability with the employers and neither the State nor the worker would pay any portion of it.
It is regrettable if children must go hungry because of 6d a week.
They will not go hungry.
They will not go hungry? Can the Minister guarantee that?
They have better rates of benefit than are in any other scheme.
We know that.
And a lot better than in the Report of the Majority.
We shall forget about the Commission and the Majority and Minority Reports; they have been washed out badly. I must press the amendment.
Amendment put and declared lost.
Tá go maith agus ní go h-olc.
Amendment No. 29 not moved.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill".
I have been trying to understand subsection (2). Would the Minister indicate what it means? The same thing occurred in subsection (2) of section 10.
Subsection 1 deals with these increases for children. Subsection 2 says that these increases will apply to a disablement pension the same as to an injury benefit at a time when the person in receipt of the disablement pension is either in hospital receiving treatment or entitled to unemployability supplement. The disablement pension is payable in respect of the disablement without any reference to incapacity for work. It would be payable after injury benefit has ceased. There are no conditions for dependants attached to disablement benefit as such, but if in addition to having qualified for disablement pension the workman is also permanently incapable of work, then he will receive the unemployability supplement of 52/6 in addition to the disablement pension and this provides that he will also receive in respect of dependants 40/- for an adult dependant, 13/- for each of his first two children, and 8/- for each other child.
Am I right in saying that during all the time that the man is really incapacitated from work these benefits, whether the injury benefit or the more long term benefit, these increased allowances, are payable?
Yes. The only difference is that during the injury benefit period the total amount would be in respect of a married man 115/-plus 40/- in respect of his wife, 13/-for each of his first two children and 8/- in respect of each other child.
And not the 52/6d?
Yes.
I see. I am obliged to the Minister.
Question put and agreed to.
SECTION 12.
Question proposed: "That section 12 stand part of the Bill."
Amendment No. 30 has been disposed of with section 10.
Amendment No. 30 not moved.
I move amendment No. 31:
In subsection (1) (a), line 41, to delete "forty shillings" and substitute "forty-five shillings and sixpence".
This applies to an increase in disablement pension on the ground of unemployability. It deals with the case of a beneficiary who does not collect any other supplements for children or anyone else. We consider that in such cases the amount mentioned in the Bill is much too small. We propose that the 40/- should be raised to 45/6d which we think is more reasonable.
This is the same thing, this question of increasing the rates. There is no point in considering them in isolation. The total cost of these increases is £750,000, as I have said, and I do not consider it feasible to raise that extra amount.
The Minister will pardon us for pressing these kind of amendments or putting them down, for this reason, that here we are told that this Bill is being dovetailed into the social welfare code, and if one is going to say that this is in the social welfare code, then there is good reason for giving consideration to applying the usual social welfare principle to new kinds of benefits which workers and the Government think should be provided. I am not at all sure as to whether the Minister has taken thought about this matter or consulted with representatives of the workers, that there should be some kind of provision in the code to enable people who wanted these increased benefits to opt to have them and to pay an increased contribution under the social welfare legislation. If that option were provided, there may be difficulty in making the actuarial calculations on the number of people who would take the option, but I think that the resources of social research are not exhausted in that regard, and that upon a random test it would be possible to ascertain how many would take the option. If the option were provided to have these increased benefits for an additional contribution paid by the workers volunteering for them, it would be a very worthwhile additional benefit which the worker by his own option could secure. I see that the Minister is not going to accept these amendments, but this is a matter he might well consider if he feels that workmen's compensation should be financed by industry or by employers generally. He might consider making provision in the code to enable workers who want to have additional benefits to get them by paying somewhat increased social welfare contributions.
If the workers organisations make the case that their members would be prepared to pay an extra contribution for higher benefits, I will certainly be prepared to consider it. I would also need to take into consideration whether it would be proposed to recover the extra amount from the employers or in other words whether the employers would finally pay the whole lot or not. I would be prepared to consider a proposal such as that. I have not got it.
Amendment, by leave, withdrawn.
I move amendment No. 32:
In subsection (1) (b), line 43, to delete "fifty-two shillings and sixpence" and substitute "eighty shillings".
This deals with a beneficiary who is not under 18 years and who is not a married woman. I suppose it could be a man with a dependent wife and no children.
What amendment are we on?
Acting Chairman
No. 32.
I thought they were dealt with together.
Acting Chairman
They should have been.
This is a different category of person. I assume the beneficiary could be a man with a wife to support. I do not think 40/- is in any way reasonable, not that 45/6 is very much more, but it is still a little. We also propose that everywhere 52/6 appears it should be 80/-. That is nearer to what a man could keep a wife on in circumstances where he is disabled.
This amount does not refer to a wife at all. It would be payable in the case of a single man. This is an increase in his disablement pension. If he had suffered 100 per cent disablement the rate would be 115/-, and that would be increased by 52/6 whether the man was single or married if he was permanently unable to work.
He would have 115/- as well?
If he had suffered 100 per cent disablement. If he was a married man he would have another 40/- in respect of his wife, and a further addition in respect of children, if he had children. The argument against this is the same.
We could have foretold that.
Amendment, by leave, withdrawn.
Question proposed: "That section 12 stand part of the Bill".
There is a kind of means test introduced in this section in determining whether an injured person would be entitled to an increase of 52/6. I wonder can the Minister indicate what is meant by subsection (2). It seems that if a man is earning not more than £104 a year he will be entitled to the supplement up to 52/6. I think I am right in that. If he is earning, say £100, will there have to be any scaling down of the disability benefit? That is the first thing that occurs to me.
Paragraph (b) provides:
In the foregoing paragraph the reference to earning includes a reference to receiving any remuneration or profit derived from gainful occupation.
Supposing a man's wife has a shop and he is able to sit behind the counter and be there for the purpose of watching it to see that no one comes in and steals anything. He could ring a bell and his wife would come in from the kitchen when anyone came in to be served. This might be an occupation that could be gainful. I am wondering whether in that kind of situation it will be said: "You may not be receiving money for what you are doing, but you are, in fact, engaged in a kind of occupation. We know that from investigations by social welfare officers, and we have information to that effect. If you did not do it your wife would have to pay someone else £3 a week." Will that person be drawn into the category of persons "receiving any remuneration", or must it be clearly established that the man is working for someone else and being paid something over £104 per annum? I hope it is the latter and that there will not be any difficulties of the kind I think could arise.
This £104 is not a means test. It is, in any way, a definition of incapacity to work. It enables a person who is capable of doing a small amount of work to be treated as being incapable of work for the purpose of receiving this unemployability supplement. If he is able to do a small amount of work which earns him less than £2 a week, he will be treated as if he were, in fact, incapable of work and he will be given this unemployability supplement.
In regard to the question of a disabled person helping in a business run by his wife, I am afraid I cannot promise that there will not be any trouble in cases like that. If he is, in fact, operating in a shop, or working in a shop, and if the profits are more than £104 a year, he will not be treated as being incapable of work.
If it were his wife's shop and he was not getting a formal salary would he come within the section?
It would depend on what he was doing. This is the kind of thing in which I would certainly visualise disputes arising. If, as Senator O'Quigley suggested, it was a question only of sitting in the shop, occasionally during his wife's absence, and keeping watch, naturally that could not be treated as work, but if he were continuously working in the shop he would, in fact, be at work and it would depend on the amount of business done whether he would be deemed to be earning over £104 a year. Cases like that would have to be decided on an individual basis, I am afraid.
Question put and agreed to.
SECTION 13.
Acting Chairman
It is suggested that amendments Nos. 33 and 34 be taken together.
I move amendment No. 33:
In subsection (1), line 7, to delete "forty" and substitute "fifty-two".
Both these amendments cover increases in benefits. In one amendment we propose that 40/- should be increased to 52/- and in the other we propose that the maximum amount in the case of exceptionally severe disablement should be raised from 80/- to 110/-. If the disablement is exceptionally severe 80/- would not be very much so we propose it should be 110/-, in the hope that the Minister may come down generously on some of the amendments at any rate.
Here, again, we must appreciate that these allowances would be in addition to the other sums I have already mentioned. I do not think they can be considered unreasonable. A person receiving 40/- in respect of constant attendance, if the degree of disablement was 100 per cent, would also be receiving 115/- in that respect. He would, of course, be unemployable and he would be receiving 52/6 in respect of that. If he was married he would be receiving another 40/- in respect of his wife and other additions in respect of children. If he needed constant attendance, whether that was provided by a member of the family or by someone else, he would be receiving an additional 40/- or in respect of very severe disablement an additional 80/-. I think these rates are reasonable.
Amendment, by leave, withdrawn.
Amendment No. 34 not moved.
Question proposed: "That section 13 stand part of the Bill".
This is a very desirable and necessary section. I made a passing reference to it on the Second Stage. The Minister had hard things to say about us on this side of the House earlier in the debate and perhaps we might have had uncomplimentary things to say about the Minister. However, this is a case where those things should be forgotten. I want to refer to a particular case. There are probably very few cases where people are hopelessly incapacitated who have been paid compensation under the Workmen's Compensation Act and who will not, as I understand the Bill, be entitled to benefit from this particular section.
I know you cannot do everything for everybody. You cannot apply the provisions of the Act to other workmen generally because it would impose a retrospective burden on the employers. The case I have in mind is beyond all those cases. It is the case of a workman who, because of the known deficiency in the Workmen's Compensation Act, has suffered very serious and permanent disability. The truth of the matter is that he is paralysed from the waist down. His bowels are manually operated, his kidneys are functioning in the same way and he is absolutely incapacitated for any work. He is only a man of 24 or 25 years of age. Despite his incapacity he has a very good mental outlook on life.
This workman's misfortune was that the accident he met with arose in the course of his employment but the Supreme Court held that it did not arise out of his employment. The truth of the matter was—it was recognised all round—that he was proceeding from one place in his employer's premises to another. He was bringing the contents of one of those hydraulic shovels which was attached to a tractor. There are two arms to those hydraulic shovels which lift up and down and, being young, he sat in the bucket filled with sand or material which is thrown into a lorry. He sat in this particular contraption and as the machine was going through—this is being done time and time again—in some way or other the bucket tripped and he was thrown out in front of the tractor. The tractor went over his back and severed his spinal cord in the middle of his back. This left this man in the terrible condition he is in at the present time.
Section 15, subsection (2) of the Workmen's Compensation Act, 1934, states:
Where an accident results in the death or serious and permanent disablement of a workman, such accident shall for the purpose of this Act be deemed to arise out of and in the course of his employment notwithstanding the fact that such workman was at the time when such accident happened acting in contravention of any statutory or other regulations applicable to his employment or of any orders given by or on behalf of his employer, or that he was acting without instructions from his employer, if such act was done by such workman for the purpose of and in connection with his employer's trade or business.
This unfortunate man is in that kind of condition by the merest misfortune of the definition of that section. The deficiencies of this particular Act were recognised in subsection (2) of section 4 of the Bill we are debating here. This subsection states:
(2) An accident shall be treated for the purposes of the Acts, where it would not apart from this section be so treated, as arising out of an insured person's employment if—
(a) the accident arises in the course of the employment,
(b) the accident either—
(i) is caused by another person's misconduct, skylarking or negligence, or by steps taken in consequence of any such misconduct, skylarking or negligence or by the behaviour or presence of an animal (including a bird, fish or insect)...
In this particular case I mentioned the young man's accident happened through skylarking. There was nothing more to it than that. He is now in this deplorable condition and he is not entitled to a single penny workmen's compensation. The galling thing about it is that his employers are multimillionaires but they had not the decency to offer him, at any stage, and neither had the insurance company, £1 or £100.
This man has to live with his disability. It is quite clear that he is a great burden on his family. It is natural that this should be so because of the constant attention he requires. I would ask the Minister to consider amending this section to provide that where any man has met with an accident, and he comes within the provisions of this section, that he should be entitled to this disability benefit. I grant you he has no entitlement out of the fund but this is something that is done ex gratia. If the Minister is not happy in his mind about entitlement it would be correct to say that when the old age pensions were increased originally to provide that people who are insured persons would have a contributory old age pension those persons were paid out of current contributions. Possibly there should be a fund and actuarial calculations. That was done in the case of old age pensions. I am sure that the people who find themselves in the kind of situation I have mentioned would be very few. It would be a great blessing to the person I have in mind and the few other people who are in this kind of situation if something were done.
I would strongly appeal to the Minister—this has been referred to before during the Second Stage in the Dáil— to include such a person. I am quite sure that the employers would contribute to the fund and the employees, who would benefit from it, would not begrudge the small amount that would be taken out of the fund. It would be an absolutely insignificant amount but it would relieve the distress of any person who finds himself in the kind of situation I have described. It is not very often that I make an appeal to a Minister, but I would earnestly urge the Minister to do something for this type of person. I know the Minister will say he cannot make exceptions. It is right and proper when the heart dictates it and the mind does not see anything against it that we should make exceptions. The Minister will not regret making this kind of exception.
Section 24 of the Bill extends certain provisions to existing recipients of workmen's compensation. What Senator O'Quigley is asking me to do is extend the provisions of the Bill——
Only of section 13.
——to people who, in fact, were proved not to qualify for workmen's compensation. I do not know where it would end if we were to impose on this special Fund from employers' contributions the obligation of providing this constant attendance allowance for hardship cases which were found, in fact, not to be entitled to workmen's compensation. Unfortunately, there are hard cases but I am afraid it would not be possible to cover them in the Bill. I know of people paralysed as a result of playing football and there seems to be just as much reason to include them.
We are dealing with workmen injured while engaged in their employment. It is a deficiency in our social welfare system if there are people who are equally badly paralysed while playing games whose football clubs for whose benefit they exerted themselves made no provision for them. The case I have mentioned is not one of hardship but of dire necessity. The Minister could make regulations to limit the number of cases if he thinks there will be many. I am talking about cases of 100 per cent incapacity, being kept alive only by the grace of God and the skill of science.
The number of such cases is very small. The man I have mentioned was found not to be entitled to workmen's compensation. The Minister sounds like a hard-hearted lawyer, concerned only with what the law is and was. I ask him not to adopt that attitude. This is a case where the man was working but he was found to have been injured by an accident in the course of his employment but not arising out of his employment. I ask the Minister to consider between now and Report Stage cases where people have been injured either arising out of their employment or in the course of their employment but who have been found not to have been injured arising out of and in the course of their employment. There is ample precedent in the matter of contributory old age pension. In that case people are paid out of the increased contributions payable after the introduction of the Bill to provide these increased pensions.
These are appropriate cases for social welfare but not to this Bill. The only benefit available at the moment is the disabled persons maintenance allowance in respect of which the Minister for Health intends to liberalise the means test. I cannot undertake to do what the Senator suggests in this Bill.
Question put and agreed to.
Section 14 agreed to.
NEW SECTION.
I move amendment No. 35:
Before section 15 to insert a new section as follows:—
"(1) The weekly rate of a disablement pension shall, subject to the following provisions of this section, be increased by an amount not exceeding the appropriate amount specified in the Table to this section if as the result of the relevant loss of faculty the beneficiary—
(a) is incapable and likely to remain permanently incapable of following his regular occupation; and
(b) is incapable of following employment of an equivalent standard which is suitable in his case,
or if as the result of the relevant loss of faculty the beneficiary is and has at all times since the end of the injury benefit period been incapable of following the said occupation or any such employment as aforesaid.
(2) In the foregoing subsection—
(a) the reference to a person's regular occupation shall be taken as not including any subsidiary occupation of his;
(b) the reference to employment of an equivalent standard shall be taken as not including employment other than insurable employment; and in assessing the standard of remuneration in any employment, including a person's regular occupation, regard shall be had to his reasonable prospects of advancement.
(3) For the purposes of this section, a person's regular occupation shall be treated as extending to and including employment in the capacities to which the persons in that occupation (or a class or description of them to which he belonged at the time of the relevant injury) are in the normal course advanced, and to which, if he had continued to follow that occupation without having suffered the relevant loss of faculty, he would have had at least the normal prospects of advancement; and so long as he is as a result of the relevant loss of faculty deprived in whole or in part of those prospects, he shall be treated as incapable of following that occupation.
(4) Regulations may for the purposes of this section provide that a person shall be treated as capable of following an occupation of employment merely because of his working thereat during a period of trial or for purposes of rehabilitation or training or in other prescribed circumstances.
(5) An unemployability supplement and an increase of pension under this section shall not be payable for the same period.
(6) Subject to the last foregoing subsection, an increase of pension under this section shall be payable for such period as may be determined at the time it is granted, but may be renewed from time to time, and the amount of the increase shall be determined by reference to the beneficiary's probable standard of remuneration during the period for which it is granted in the insurable employments, if any, which are suitable in his case and which he is likely to be capable of following as compared with that in his regular occupation within the meaning of subsection (1) of this section.
(7) Regulations may make as respects a disablement gratuity provision corresponding to that made by this section as respects a disablement pension, and may include provision for payment of a pension in lieu of a gratuity.
|
TABLE |
|
|
Maximum increase under section 15 of weekly rate of disablement pension in cases of special hardship. |
£2 14s. 0d. or the amount (if any) by which the weekly rate of the pension falls short of £6 15s. 0d., whichever is the less.” |
This proposed new section is designed to give an addition to the disablement pensions in cases where, as a result of injury, a man suffers loss of wages due to his inability to follow his normal occupation or to a lowering of his pay rate because of loss of skill. This benefit is obtainable in Northern Ireland. It is regarded as a kind of way out or safety valve in cases of special hardship. It gives more latitude to the body paying the benefit—in our case the Minister. The average degree of disablement in Britain and Northern Ireland is 30 per cent. That the disablement benefits even in Britain and Northern Ireland are too low is emphasided by the fact that special hardship allowances accounted for one-third of the total expenditure on disablement benefits in 1960. In Northern Ireland, 2,570 disablement pensions and 1,614 special hardship allowances were in payment. In other words, 60 per cent of the pensions were supplemented by the special hardship allowance.
It was a deliberate decision not to bring in this special hardship allowance. First of all, I should point out that the special hardship allowance is applicable only where the percentage disablement is less than 100 per cent and it applies only in the case of a person incapable and likely to remain permanently incapable of following his regular occupation and incapable of suitable work of an equivalent standard or if he is continuously unfit for his regular or equivalent occupation from the time his injury benefit ends. The maximum allowance in addition to the disablement pension may not exceed the weekly rate of disablement pension at the 100 per cent rate.
Within that limit, the rate of the special hardship allowance is the difference between the standard of remuneration in the beneficiary's regular occupation and that in any suitable occupation which he is able to follow. The total amount may not exceed the amount of the disablement pension. In this connection the regular occupation is regarded as including the level of employment to which the person would have in the normal course advanced, and the standard of remuneration is assessed on his reasonable prospects of such advancement.
Numerous difficult matters have to be decided which give rise to interminable disputes. As I have said, an essential feature of the scheme is that the allowance plus the disablement pension could not exceed the maximum rate of pension. The result is that people suffering from grave disabilities receive little or no benefit from this provision. In fact this special hardship supplement is of particular value only to those who have suffered relatively small degrees of disablement. Another objection is that persons with limited amounts of disablement who are able to resume employment with some reduction in earnings, would be compensated both for the loss of faculty and for the loss of earnings, whereas the person who suffered a severe disablement would be compensated for the loss of faculty only but would receive no compensation for loss of earnings, if he were able to return to work at a lower rate of remuneration than his normal wage.
There is also the question that the amount of this allowance would be reduced if a person's earning capacity should increase at any time following his loss of faculty; as a result, the allowance would be a disincentive to the workman's effort to rehabilitate himself. That has been the experience where it is in operation. The administration of this special hardship allowance would be costly and would give rise to considerable and interminable disputes. I should also like to point out, again, that while we have not included this special hardship allowance in the scheme, if the recipient of a disablement benefit is incapable of work, he gets disability benefit or unemployability supplement in addition to his disablement benefit, so I think the provision we have made is adequate and this would not be a desirable feature in the scheme.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 36, 37 and 38 have been disposed of with earlier amendments.
Amendments Nos. 36 to 38, inclusive, not moved.
Sections 15 and 16 agreed to.
SECTION 17.
Acting Chairman
Amendment No. 39 has been disposed of with an earlier amendment.
Amendment No. 39 not moved.
Question proposed: "That section 17 stand part of the Bill".
On section 17, is it not clear that if a widow is entitled to a widow's contributory pension she would also be entitled to workman's compensation pension?
No. The overlapping benefit regulations would rule that out.
What would the widow's pension be? It would not be 95/-, I take it, at the present time?
The widow's contributory pension is 52/6.
I wonder why that should be so because if the workman is entitled to workmen's compensation by virtue of this statute and, at the same time, if during his lifetime he pays his social welfare contribution to entitle his widow to a widow's and orphans' pension, why should not the widow of a workman be entitled to what her husband has obtained for her by paying his contribution over the years?
Take the case of a public servant who is entitled to superannuation—a civil servant is entitled to superannuation allowance. If he applies part of that, under the Allocation of Pensions Act, to his widow, I rather think that the widow would be entitled to that, because the husband has bought that benefit by allocating, in advance, part of his pension and I am quite certain that the widow would also be entitled to a widow's contributory pension. If that is the case, I do not know why there should be a distinction here, because it seems to me that where a workman has, in fact, bought the benefit for his widow, she should be entitled to it and should not be deprived of it merely because she is entitled to something else.
They both arise out of the death of the husband but these overlapping benefit regulations are a feature of social insurance. It is because it is so arranged that a person cannot get two benefits to cover the same need that it is possible to provide them at the rate of contribution which is imposed.
I can see that, with respect, but here is a pension which has been provided under the Workmen's Compensation Act, quite divorced from the existing social welfare code. It is being paid in entirely by the employer's contribution and that is the benefit which the workman's widow would be entitled to even if he was not a person who was insurable under the Social Welfare Acts.
My point is, if the workman, during his lifetime, has paid for a contributory widow's pension, I do not see why the fact that his employer is going to pay a widow's pension via this occupational injuries Fund should deprive him of his benefit to a widow's pension made over a period of maybe 30 to 35 years. It seems to me to be very inequitable.
This is not, in fact, divorced from the social welfare code but it is a fact that there is a separate fund created to which only employers contribute. It is not by any means divorced from the social welfare code. It is becoming part of the social welfare code now and it is a fundamental principle not to provide twice for the same need.
In case I do not get an opportunity again, it might be no harm to point out that this is one of the instances in which the benefits in this Bill are ahead of those provided in the British scheme to which Senators have been aspiring under other sections. Here we are providing more.
Let it be recorded in the Report that there were loud cheers for the Minister!
Question put and agreed to.
SECTION 18.
I move amendment No. 40:
In subsection (2), line 43, to add the following:—
"but the pension during the first 13 weeks of widowhood shall be £5 12s 6d."
I presume this would be considered an adjustment period. We are proposing that the 95/- should, during the first 13 weeks, be at the rate of £5 12s. 6d.
I have no doubt that is what Senator Murphy and Senator Miss Davidson intended to provide but, in actual fact, section 18 deals with widowers only.
Yes. I noticed that when I rose to speak; there must have been an error there somewhere.
The same mistake was made in the Dáil. Again, I think Senators are aiming at bringing about parity with what was done in Britain and Northern Ireland, but in respect of widows and not widowers. Even if it were applied to widows, to be consistent about parity the Senator should have proposed a reduction after the first 13 weeks from the 95/- which we pay for the full period to 90/- which is what is payable there and, in fact, to 20/- in the case of a young widow without children who is capable of working. We are providing in this Bill a flat rate of 95/- for the whole period of widowhood and irrespective of the age of the widow. In actual fact these amendments are down under the wrong section.
Amendment, by leave, withdrawn.
Acting Chairman
Amendment No. 41 has been disposed of with amendment No. 10.
Amendment No. 41 not moved.
Question proposed: "That section 18 stand part of the Bill".
Am I right in thinking that section 18 is confined entirely to widowers and that it is only a widower who will get a death gratuity of £247, or will the widow be entitled to rely on the Interpretation Act and say that the male includes the female and mutatis mutandis, she is entitled to a benefit of £247?
It is only in the case of a widower who is not qualified for a widower's pension because he was not incapable of self support by reason of some physical or mental infirmity. It is in the case of widowers other than those who would qualify under subsection (2) that the benefit of a lump sum is payable instead. That condition does not apply to widows at all.
Would a widow in all circumstances be entitled to a widow's pension?
Yes, so long as she remains a widow.
Supposing you had a widow who was a national school teacher who is earning, which is not uncommon now since the ban has been relaxed, £700-£800 a year and her husband was under the workmen's compensation code, would she be entitled to a pension?
Yes, there is no question of dependency with regard to a widow.
As a matter of curiosity, was the figure of £247 arrived at as being the appropriate gratuity for the widower? Why could it not have been brought up to £250 piecemeal?
It looks to me like one year's pension.
It is one year's pension.
These figures used to be rounded up to the nearest £5. However, we now have the explanation.
Question put and agreed to.
SECTION 19.
Acting Chairman
Amendments Nos. 42, 43, 44, 45 and 46 were disposed of with amendment No. 27.
Amendments Nos. 42 to 46, inclusive, not moved.
Section 19 agreed to.
SECTION 20.
Acting Chairman
Amendments Nos. 47, 48 and 49, 50, 51 and 52 were disposed of with amendment No. 10.
Amendments Nos. 47 to 52, inclusive, not moved.
Section 20 agreed to.
SECTION 21.
Acting Chairman
Amendment No. 53 was also disposed of with amendment No. 10.
Amendment No. 53 not moved.
Section 21 agreed to.
SECTION 22.
I move amendment No. 54:
To delete subsection (2) and substitute the following:
"( ) Where no next-of-kin of the deceased can be traced, the amount payable under this section shall be the vouched expenses of the funeral, with a maximum of fifty pounds."
Subsection (1) is designed to pay for the funeral expenses an amount not exceeding £50 and subsection (2) goes on to say that the reference to £50 should be construed as reference to such an amount less than £50 as may be specified by regulations. The first objection to that is that God knows what the regulations will provide. There is the normal kind of funeral that people in this country have. It involves certain kinds of expenditure which people feel it is necessary to incur out of respect to the deceased and for the better accommodation of those who come to visit them in a time of sorrow. There are certain refreshments that have to be provided. The ordinary business of providing coffin and hearse and these kind of things may not amount to perhaps £30, £35 or £40 but it seems to me that in fact what we would regard normally as the funeral expenses and what would pass the Estate Duty Office in a schedule of assets would all add up to the extent of £50. Would the purchase of a grave be part of the funeral expenses? If so, it seems to me that £50 would not be adequate to meet them.
On occasion it does happen that there are no next-of-kin. By the deletion of subsection (2) the £50 should be payable. Where there are no next-of-kin who can be easily traced, and that happens from time to time, somebody gets an undertaker to carry out the funeral arrangements, and then the vouched expenses of the undertaker should be properly payable under this section. I think that should be agreed to.
This is, in fact, what is intended to be provided for in the regulations, that where the deceased leaves a next-of-kin the full amount will be payable but where there is no next-of-kin the vouched expenses of the funeral will be payable subject to a maximum of £50 and if the expenses do not reach £50 it is only the actual amount of the expenses which will be paid. I am not in a position to go into the full details of what would be regarded as properly incurred expenses. I do not think refreshments would come into it anyway.
Well, refreshments are part of the mourning duties.
Amendment, by leave, withdrawn.
Question proposed: "That section 22 stand part of the Bill".
Would the Minister indicate what will be done under subsection (3) in circumstances of death outside the State? This provides that the grant will not be payable in respect of death outside the State.
It is intended to make new regulations to enable the occupational injuries benefits generally to be paid in certain circumstances outside the State, for example, in cases of temporary absence from the State. It is intended under this subsection to make regulations enabling a funeral grant to be paid in respect of the death abroad of persons who will be eligible for benefit under this Bill. It would cover seamen and persons temporarily employed outside the State, and persons covered by reciprocal arrangements.
Question put and agreed to.
SECTION 23.
Question proposed: "That section 23 stand part of the Bill".
We had some reference to this earlier with reference to definitions. Perhaps the Minister would indicate generally what is intended by the section. At present if somebody suffers from one of the industrial diseases, such as dermatitis, these may recur. Dermatitis may result from dust or liquids and may clear up, but once you develop an allergy to a particular substance, then this dermatitis may recur. At present the employer would be liable if it recurs, but I do not know what the position will be when the Workmen's Compensation Act is repealed, whether the workman will again be entitled to sue the old employer even though he may be engaged in another employment which has nothing to do with the recrudescence of that industrial disease. That is one kind of situation that can develop. There is a second kind of workmen's compensation case that can arise. This is dealt with under the later Workmen's Compensation Acts where a man may have suffered an injury but may have so far recovered as to be able to go back to full work. The injury may be such that it is likely to incapacitate him again, and he is entitled then to get a declaration from the court entitling him to come back at a later stage and when the disease incapacitates him apply for workmen's compen sation and, because he has become incapacitated, he can get a workman's compensation award. Section 23 seems to bridge this kind of situation. Under the ordinary legislation under the Interpretation Act it would seem that the workman would be entitled to apply the old workmen's compensation code. I wonder to what extent it is intended that section 23 will operate so as to dispense the workman from the necessity to make any application under the old workmen's compensation code. I would like to hear the Minister on that because it seems to present a certain amount of difficulty.
The position is that if the workman has suffered from injury or disease and has established a claim under the Workmen's Compensation Acts, and if that injury disappears and recrudesces and there is no doubt that it is a recrudescence of the original complaint, then he is still covered by the Workmen's Compensation Acts and not by this. On the other hand, if his claim was first made under this Bill even though the disease from which the disability arises was obviously contracted prior to the coming into operation of this Bill the case will fall to be dealt with under the Bill. That is if the thing only comes to light after the coming into operation of the Bill. If he has established a claim under the Workmen's Compensation Acts, then he does not come under this for that particular disease.
Yes.
Question put and agreed to.
SECTION 24.
Acting Chairman
Amendment No. 55 has been ruled out of order and Senators have been notified.
Amendment No. 55 not moved.
Question proposed: "That section 24 stand part of the Bill."
On the section, the object of our amendment was to deal with the cases of people on maximum workmen's compensation, that is 90/-cases, which in today's money is very low. The Department will not pay sickness benefit on top of workmen's compensation, but if an injured workman has taken a case at common law and gets an award the Department will then pay sickness benefit on top of his common law award. I cannot see why this distinction should be made. Perhaps the Minister would throw some light on it.
This proposal was to add to the section a new subsection as follows:
"( ) The restrictions on the payment of disability benefit in addition to weekly payments of workmen's compensation in Article 17 of the Social Welfare (Overlapping Benefits) Regulations, 1953, shall not operate after the passing of this Act."
What we intend to do now is to provide that where a person is on the coming into operation of this Bill in receipt of weekly payments of workmen's compensation we shall pay disability benefit in addition to those weekly payments.
This is a new regulation?
This will be a new regulation from now on.
That meets the point.
But if the person has accepted a lump sum settlement prior to the coming into operation of the Bill that would not apply. It is only if he is in receipt of weekly payments on the coming into operation of the Bill.
What benefit will he be paid under section 24—the unemployability supplement of 52/6d?
Yes, the unemployability supplement, or disability benefit if he has the requisite number of contributions to qualify for disability benefit. If not he will get the unemployability supplement.
He will also be paid a constant attendance allowance?
Yes, that would apply also.
These are to be paid out of the occupational injuries fund?
Yes.
Could I return to what I was arguing earlier, that these men have no right whatever——
If they have established a right to workmen's compensation.
Business suspended at 6 p.m. and resumed at 7.30 p.m.
Before business was suspended I observed that we were making some progress upon the Bill. It now transpires that the sacrosanct principle which the Minister enunciated earlier this afternoon has been breached to some extent in section 24. I think I am right in saying that the increase in workmen's compensation to persons already in receipt of it will be paid out of the occupational injuries Fund, under section 24, notwithstanding the fact that workmen never had any entitlement to any payment out of the Fund, and their employers never contributed to it.
It seems to me that the Minister should have regard to the case which I was making, and which I again submit, because here in this section we are making payments to people out of the occupational injuries Fund although they have never paid into it. Perhaps the Minister would indicate whether in addition to the marginal payments which are being made, any further increase is contemplated for persons at present in receipt of workmen's compensation.
First of all, the case which Senator O'Quigley wanted to bring in here was the case of people who had not qualified for workmen's compensation. Surely that is a different principle from paying this increase to people who have qualified for workmen's compensation. The last question the Senator asked was whether any increases in the rate of workmen's compensation are contemplated.
Yes.
No. It is intended that disability benefit or unemployability supplement will be paid in addition to payment of workmen's compensation in future in cases of incapacity to work.
My recollection is that for a long time numerous Deputies have been putting down questions in the Dáil addressed to the Minister, asking him when the £4 10s, which is the maximum that can be paid under the existing workmen's compensation code, would be increased. The Minister always parried that kind of question by saying he was considering the report of the Commission on Workmen's Compensation and that new legislation would be brought in.
Some time back I calculated that in respect of certain categories of single men at present in receipt of the £4 10s maximum, they would not be paid as much under this Bill as they would be if they were compensated for the increase in the cost of living since 1955. It seems to me to be quite wrong to say that people who are on the £4 10s—and that is the maximum; they may only be on £3 a week; that may be the amount they are entitled to, related to their pre-accident average weekly earnings—will not get an increase in proportion to the increase in the cost of living which has taken place. Since 1955 there have been I do not know how many rounds of wage increases, but workmen who are permanently and totally incapacitated may at present be in receipt of no more than £3 per week. Apparently, it is not intended to increase their disability benefit in proportion to the increase in the cost of living. I wonder would the Minister indicate what kind of benefit section 24 will confer upon a single workman who has only £3 a week under the existing Workmen's Compensation Acts.
It will confer a benefit of 52/6 per week if he is permanently incapable of work.
That is all?
Yes, that is all—a single workman who has already settled his claim under the Workmen's Compensation Acts.
Does that mean that despite the fact that since 1955 earnings generally have risen, I think I am right in saying, by 80 per cent, all that a workman who has the bad fortune to be injured before this Bill comes into effect will get is £4 10s plus £2 12s 6d—less than 55 per cent of an increase? After ten years he is left in a position where he is worse off in purchasing power than he was ten years ago. Does the Minister seriously intend that?
The position is that these will be people whose right to compensation was determined under the Workmen's Compensation Acts. The position at present is that in such cases the person concerned, if he is incapable of work, is entitled only to the difference between the appropriate rate of disability benefit and the rate of workmen's compensation. Now he will be entitled to disability benefit in addition to whatever rate of workmen's compensation is payable.
Is it unemployability benefit for disability?
Unemployability supplement applies in the case of a person who is not eligible for disability benefit and who is permanently incapacitated. Unemployability supplement is at the same amount, but in normal cases the man will qualify for disability benefit because he will have sufficient contributions. Where he is not so qualified, then unemployability supplement is paid instead.
What disability benefit will a single man get?
He will get 52/6.
It is the same as the unemployability supplement. They are both 52/6.
Yes.
Does this mean that the Minister under the new scheme is ignoring workers who are getting benefit under the old scheme and that those people will receive £4 10s no matter how much earnings increase or how the cost of living goes up? I find it hard to believe that the Minister is serious about this, that after ten years promising to do something, at this stage all he will give is £2 12s 6d. That is the same as it was ten years ago. Surely the Minister should have some proposals to increase the existing £4 10s for people under the existing scheme. Is the Minister concentrating so much on the future and on this new scheme that he does not intend to consider people who are under the old scheme? Surely that cannot be so.
The £4 10s is based on the rate of premium paid in respect of workmen's compensation insurance and it would not be advisable for me to compel insurers to pay a greater amount than the £4 10s.
The Minister is ignoring what was already done under the Workmen's Compensation Act, 1953. This raised the rate of workmen's compensation for all people on workmen's compensation. Similarly, the 1955 Act changed the position of relating workmen's compensation to the number of dependants to a flat maximum rate of £4 10s. I am open to correction on this but that £4 10s became payable to all persons in receipt of workmen's compensation.
At present if a workman was engaged in industry where, previous to his accident, his earnings were, say, £5 10s a week he received compensation which increased to £4 10s a week. Now with the passage of time earnings have increased to £7, £8 or £9. That workman is entitled, under the existing workmen's compensation code, to go into court and say: "At the date I was awarded my compensation I was earning £5 10s a week. Now the wages have risen to £7. I was awarded only £3 15s related to that £5 10s but if I continued in employment my wages would be £7 10s." That man would undoubtedly be entitled to the maximum of £4 10s per week which he was entitled to get under the existing code.
The situation in relation to people who have been on workmen's compensation since 1955, that is, people who are permanently and totally incapacitated, and who may have only £3, £3 5s or even the maximum of £4 10s per week, seems to be that the amount of compensation will not be increased under this Act. Those people would only be entitled at best in the case of the single man to 52/6 per week. If that is what the Minister says section 24 means—it seems to mean that—it is a gross breach of faith with workmen who, over the years, have been waiting for the introduction of the promised legislation which would increase workmen's compensation proportionate to the increase in the cost of living.
I always thought the Minister for Social Welfare had very little sympathy with employers and insurance companies. Insurance companies have regard to past trends and what may happen in the future. They weigh their premiums accordingly. I am quite sure that insurance companies, knowing what happened in 1953, knowing what happened in 1955 and knowing the Minister for Social Welfare had, in English, said he was going to deal with the position of workmen who were being paid the maximum of £4 10s a week——
Does the Senator consider it a reflection when the Minister said it in English? That is typical of Fine Gael.
There is no objection to the Minister using English.
I merely wanted to imply that there could be no doubt about the insurance companies not knowing what was being done and what it was intended to do. English is one of the official languages in the State under the Constitution, whether the Senator likes it or not.
So is Irish.
I am merely saying that because the particular questions were asked and answered in English there could be no doubt but that the insurance companies knew what would happen. It can be said they weighted their premiums and revised them having regard to what happened already and the likelihood of what would happen. Now we find after ten years that a man in receipt of £4 10s, whatever benefits he is getting, will not get an increase in the basic rate of compensation proportionate to the increase in the cost of living. If that is legislation in favour of workmen, and of injured workmen, I would like to know what legislation against workmen consists of? The more we see of this Bill the more we see the failure of the Minister for Social Welfare and his Department to realise the facts of the situation. It is outrageous to see workmen who have been on £4 10s since 1955 being denied the same increase in compensation as their fellows in full employment who have got their wages adjusted in that period.
I wonder if I am under a misapprehension. I understand that in section 24 a single workman may become entitled to £4 10s plus £2 12s 6d. If he is a single man and meets with an accident now the maximum to which he is entitled is £5 15s.
Plus £2 12s 6d. Senator Nash has brought out the point. The £5 15s plus £2 12s 6d will represent a sum of money broadly in accord with the amount that the £4 10s would have been increased to by this time, but if you leave the workman with £4 10s and add the £2 12s 6d, he will be out of line with what he would have if he had been earning during this period and his earnings had gone up with the rest of the community. The Minister should see to it that the £4 10s would become £5 15s, thus having no discrimination against two sets of workers simply because one group were unfortunate to have been injured before 1st October, 1955.
Does that not seem to be justifiable? If there are problems in regard to insurance companies and if the Minister is anxious to protect the profits of the insurance companies, he could incorporate a provision to pay this £1 5s extra out of the Fund. The number of cases would not be very great and, accordingly, the amount would not be very great. The Minister earlier said that the number entitled to this long term benefit whose injuries persisted beyond six months is very small. There cannot be a lot of money involved and there certainly does not seem to be any case for discriminating against workers injured before this date. The Minister has given no justification for dividing workers into two classes. The increase in earnings between 1955 and the present is almost 80 per cent so that the right amount to pay would be about £8, or £5 15s plus £2 12s 6d. It would give a fair approach to the trend of earnings.
Senator FitzGerald's whole approach is coloured by the fact that his scheme did not differentiate between single and married people and this Bill does. Both the Senator and Senator O'Quigley seemed to concentrate on the position of single workers. The married man who was in receipt of the maximum rate of workman's compensation and who is incapable of work would get an increase of £4 10s which would be double the amount of the workman's compensation. The single worker, when you add the rate of disability benefit to the £4 10s would have a total of £7 2s 6d and the maximum recommended by Senator FitzGerald in 1962 for either married or single was £7. Even if that were adjusted for a rise in the cost of living, the amount to be received by a single worker would be only marginally less and the amount of the married worker would be substantially greater.
I already explained to the Minister, I thought reasonably clearly, that if my recommendation in the addendum to the Report were followed, the amount of compensation paid to the worker would be on the basis of £11 0s 6d. The Minister has introduced dependency allowances which are very good and he made a strong case for them. That, however, does not explain why the Minister is discriminating, setting up two categories of workers depending on the date on which members of each category were injured. That is all I am concerned about here. I am not concerned about the married allowances. We had that discussion on an earlier section. I am concerned here only with the discrimination between two categories of workers depending on the date on which they were injured. If the Minister would address himself to that point we might get somewhere.
I should like to continue this because we have obviously come to a dead end.
We have come to a great deal of repetition.
I do not intend to repeat. I am all for the maintenance of order and I do not intend to repeat. I wish to advert to subsection (4) and to say it is poor consolation to workmen who are on £4 10s per week to know that no payment will be made in respect of any period before the appointed day. There never yet was a claim in relation to a wages settlement where there was not an element of "retro", as it is called popularly. Here we have had years of delay while the Minister was perusing this volume, entitled The Commission on Workmen's Compensation, for the purpose of misleading Dáil and Seanad on what the trade union representatives recommended. The workmen, I suppose, had the belief: "We will get an increase because the Minister has promised us it and no doubt it will be retrospective".
Now in subsection (4) we find that no payment will be made until the appointed day. For all we know, this Bill may be brought into operation on 1st August and the appointed day for increases may be 1st November. The Minister can justify that by saying: "That is the date on which we will give this handsome increase of 5/- a week to the pensioners". The subsection should be deleted and the increases should be paid as from the date on which the Minister received this Report on Workmen's Compensation. He has wasted time meanwhile.
May I ask the Minister also, before we move on, what is the significance of the first day of October, 1965? I have just been puzzling over why that date was chosen, what it means or why, in fact, is it not the date that the Act comes into effect. I am genuinely puzzled by this.
It was the date on which this Bill was published.
Would the Minister explain what the effect is on the workmen? If the workman was injured some time in the past and when this Bill comes into effect he is in receipt of compensation is that not the crucial point as to whether or not he will get this particular benefit? What is the function of the date first day of October, 1965, on or after?
If the workman had settled for a lump sum prior to that and if the lump sum was exhausted according to the rules by which a notional weekly value is attached to the lump sum for social welfare purposes at present, then this would not apply because he would not be deemed to be in receipt of workmen's compensation at that date; in other words, if he had exhausted his workmen's compensation.
As Senator FitzGerald knows, under the existing scheme, a workman's compensation payments can be commuted into a lump sum whether or not the workman is willing to do that. But in cases where that is done at present, for the purposes of disability benefit, there is a method laid down by which we attach a notional weekly value to such a lump sum. Until such time as the lump sum has been exhausted, in accordance with that weekly computation, whatever disability benefit would be payable is reduced by that weekly amount but, when it is exhausted, then the full disability benefit is payable, so that if the workman's compensation had been exhausted by the first day of October, 1965, this will not apply.
I understand that now.
I have been somewhat puzzled by the Minister's reference, earlier and now, to the disability benefit. He spoke earlier about persons who were getting disability benefit and then not being qualified for disability benefit. These things seemed to my mind, from what the Minister had to say, to run parallel with payments of workmen's compensation. As I have understood the position always—and I have seen it time and time again— people are paid disability benefit until such time as their entitlement to workmen's compensation is determined one way or the other. There is usually a covenant entered into by the workman with the Department that, in the event of his being paid workmen's compensation, he will repay to the Department such amount of disability benefit as he had been paid prior to determination of his right to workmen's compensation.
That is right.
Do I understand now from the Minister that if people are paid less than the workmen's compensation to which they would be entitled under the Social Welfare Act by way of disability benefits, they are paid the difference between the two?
That is right.
Notwithstanding that they have been paid a full lump sum? Where a man is paid a commuted sum based on £4 10s per week, where the Department of Social Welfare commuted so many weeks at £4 10s, and then, when that is exhausted, they begin to pay him disability benefit?
Prior to that, they would be paid the difference between the appropriate rate of disability benefit and the notional rate of workmen's compensation.
Is this done under regulations made under the Social Welfare Acts or is it done under the Social Welfare Acts proper?
It is done under regulations.
So the situation then is under section 24 that where the workman is notionally entitled to workmen's compensation, say, on the 1st October, 1965 he would be paid these supplementary allowances under section 24?
Yes.
If, in fact, the workman's entitlement—because he had been paid a lump sum—to workmen's compensation for that period has expired and then he is being paid full disability benefit, is the position then that he will not be entitled to any of these supplementary benefits under section 24?
Unless he is qualified under the Social Welfare Acts for disability benefit; then he will receive disability benefit. If he fulfils the contribution conditions to obtain disability benefit he will, of course, obtain it but it will not be out of this Fund, it will be out of the social insurance fund.
Perhaps the House will bear with me. I am somewhat puzzled by the Minister's reference to "contribution conditions" because it would appear to me that if a man is paid a commuted sum of £3,500 by way of settlement of his claim at the age of 35—a weekly payment of £3 10s 0d— and he is now aged, say, 49 and the Department calculates that he would have been entitled to £3 10s 0d or whatever the weekly payment was which was commuted and that that would have expired at a particular time; what I am trying to find out in that case is—if he is being paid disability and was being paid it on the 1st October, 1965, for, say, three years, would he be entitled to any of these additional supplements under section 24?
If he requires constant attendance, he will get the constant attendance allowance and he will continue to get disability benefit.
Will he also be entitled to the unemployability supplement?
No. The unemployability supplement is in substitution for disability benefit.
I am obliged to the Minister.
May I just be clear on the Minister's insistence in maintaining this discrimination between compensation for single workers depending upon the date of injury? Is the Minister not prepared to reconsider this?
There is no question of discrimination. On the contrary, I am now proposing to pay the full rate of disability benefit in addition to whatever payments of workmen's compensation the workman is in receipt of and, of course, he will get whatever future increases there are in that.
The Minister says there is no discrimination. If I understood the position correctly, in the case of a workman injured under the old code, he will get £4 10s 0d from the insurance company, plus £2 12s 6d from the new fund, whereas such a single worker falling under the new code will get £5 15s 0d plus £2 12s 6d from the fund. Am I correct in that? If I am correct, then there is discrimination between the two groups. Would he be prepared to give further consideration to that between now and Report Stage?
Where the compensation is under the Workmen's Compensation Acts, and the future cases will be under this Social Welfare (Occupational Injuries) Bill.
The Minister is not prepared to bring the compensation under the old Acts up to the level of this Bill?
I have no resources available to me from which I could finance what the Senator is asking me to do.
Why cannot the Minister finance out of the Fund, just as he is financing the £2 12s 6d, the extra £1 5s necessary to bring the single workman to what a single workman currently injured would get?
I am doing as much as I can be expected to do for people whose cases arose under a different system.
I shall reserve the right to raise the matter again on Report Stage.
Question put and agreed to.
SECTION 25.
I move amendment No. 56:
In subsection (4), page 21, before paragraph (a) to insert a new paragraph as follows:—
"( ) the average weekly earnings are multiplied by 52 and divided by fifty."
So far as I can see under this provision —limitation of benefits by pre-accident earnings—holidays are not taken into consideration. Are the benefits calculated on a 50 week year? The purpose of this amendment is to so adjust the payments that there will be taken into account on the worker's behalf his ordinary holiday pay—that is, calculating a 52 week year rather than a 50 week year.
It is the weekly rate of pay that is taken into account. If the man is being paid £14 a week that will be the limit. If he is paid £13 a week that will be the limit as there is no question of taking his total pay over a period of 52 weeks and averaging it. It is the weekly rate of pay that is taken into account.
Is he not paid for his holidays? Is that not part of his earnings? Is he paid on a calculation of 52 weeks or a 50 week year?
The limitation is calculated on his weekly pay at the time of the accident. There is no question of taking what he earns in a period of 52 or 50 weeks before the accident and averaging it. It is calculated on whatever his weekly pay is.
In that case, is he not done out of his holidays?
I wonder has Senator Miss Davidson got a point. If she reads subsection (4) she will have some reason to be disheartened about what is being done in this Bill. Subsection (4) reads:
For the purposes of the foregoing subsections of this section, the weekly earnings of a person from insurable (occupational injuries) employment at the time of the relevant accident shall be the rate of his remuneration at that time for a full normal working week in the employment in which the accident occurred, overtime being disregarded for this purpose,...
I am not such a daw in thinking that there are certain kinds of employment in which the basic rate is not nearly as important as the amount of money people can earn on overtime and there are kinds of employment where a man may be employed because of trade union regulations, say, for three hours in a day and then the employer's convenience requires that he should work two to three hours overtime and he is paid at the overtime rate. What this section is saying is that he will not be paid any greater amount by way of injury benefit than the amount of his earnings for the period during the day on which he is not employed at the overtime rate.
If you take the boilerman employed by the Office of Public Works you will find that most of his pay is at the overtime rate. He may work one to two hours from 7.30 a.m. to 10.30 a.m. The normal working hours are from 9 a.m. to 10.30 a.m. but the period from 7.30 to 9 o'clock is paid at the overtime rate, and likewise in the evening from 5 o'clock until 7.30 but the non-over-time employment is from 5 o'clock to 6 o'clock. It seems to me that if a boilerman in the employment of the Board of Works is injured though his earnings may have been £10 a week computed on his earnings during the ordinary working hours, and he has overtime earnings of, say, £4 and £6, he will be confined in the amount of injuries benefits he will get to the non-overtime amount of his earnings, that is, £4 per week. Now, in the existing Workmen's Compensation Act there is no distinction. What you computed was the workman's pre-accident average weekly amount. It did not matter when that was earned. It was whatever his earnings were over a period of 12 months, or a shorter period, or if he was not in employment for 12 months it would be the rate for the job, or what other people got which was the standard at the time in similar employment. It seems to me that in this we are eliminating overtime for the purpose of computing the boilerman's employment at the Office of Public Works.
The point made by Senator Miss Davidson and that made by Senator O'Quigley are not the same at all. Senator Miss Davidson's point, as I understand it, is that the ordinary workman works for 50 weeks in the year. Let us ask ourselves should his year's earnings be taken for 52 weeks, divided by 50 and that taken as the amount calculated. I think Senator Miss Davidson is under a misapprehension. I say that with respect. Take a man who is earning £12 a week for the 52 weeks of the year; he is paid for his holidays. He works only 50 weeks but he is paid £624. It is calculated at £12 a week. Senator Miss Davidson suggests that his wages are £12 10s a week. In other words, she divides £624 by 50. She presupposes that in addition to getting holiday pay, for staying idle, he is getting his week's wages as well. He does not get that because he actually must get his holidays. He is only getting £624 a year. He is not earning £12 10s a week, but £12 a week. He is paid that for the two weeks he is idle. When he ceases to work on 31st July he is paid for a fortnight in advance.
As regards the point made by Senator O'Quigley about overtime, first of all, one may not work more than two hours overtime per day to keep within the law as I understand it. Otherwise, you must work shifts and get permission to work them. The boilerman he is talking about who is working from 5 p.m. until midnight must be working on shifts and his shift rate is his weekly rate. There is no question of overtime arising.
So far as the question of overtime not being taken into account is concerned, I should point out that short-time is not taken into account either. His weekly earnings are treated as weekly earnings, as a normal full week in that employment.
Where is that said?
It is in subsection (4) as follows:
(4) For the purposes of the foregoing subsections of this section, the weekly earnings of a person from insurable (occupational injuries) employment at the time of the relevant accident shall be the rate of his remuneration at that time for a full normal working week in the employment in which the accident occurred, overtime being disregarded for this purpose, or, if he was not employed full time in that employment at the time of the relevant accident, the rate of remuneration which would be provided by his employer for a full normal working week in that employment overtime being disregarded:
There is no reference to short-time work but there is reference to overtime. If a man's full normal working week is a full normal working week excluding short-time and overtime why is that not stated, and why has overtime been excluded?
If he was not employed full-time at the time of the accident the rate will be the rate of remuneration which he would earn for a full normal working week in that employment, overtime being disregarded.
Why is it necessary to specify that overtime be disregarded when you do not specify that short-time is disregarded?
It is specified that short-time is disregarded.
I still feel that the workman is being done out of two weeks' pay. If he works 50 weeks in the year and then is dismissed his employer must give him two more weeks' wages so that he gets 52 weeks' wages but he only works 50.
But the limit is the rate of pay for a full normal working week.
Is it not calculated on 52?
No, it is calculated on the normal rate of pay.
I think that the point Senator Miss Davidson may be missing is that compensation is payable for 52 weeks and not 50.
It is. Compensation is payable for every week on which the person qualifies for it.
Is not regard being had to his holiday pay?
It does not arise. The limitation is the rate of pay for full normal working week.
Amendment by leave withdrawn.
Question proposed: "That section 25 stand part of the Bill".
The Minister says that overtime is not regarded at all, or whether a man is on short-time, and that you have regard to the full normal working week. I come back to my boilerman. There is no such thing as a normal working week without overtime. The trade unions have laid down rules and the Office of Public Works accept them and the man is employed. He is not known as a boilerman but as a casual labourer employed under the sacrosanct traditions of the Office of Public Works from the 15th October to the 15th May when the boilers are turned on and the central heating is operated. His working hours are from some time in the morning to another time in the morning. Then for the rest of the day he is free, he works a few hours in the evening and then does nothing. Perhaps on Saturday or Sunday he stokes up the boilers. The greater part of this time is paid for as working during overtime. There is no such thing as a normal working week for boilermen employed by the Office of Public Works. What we are saying here is that if he gets badly burnt in his employment by the Office of Public Works he cannot be paid anything more than the payment made to him during a normal working week. The Deciding Officer in the Department of Social Welfare will sit down and write a letter to the Office of Public Works and will ask what is their normal working week. They will say "from 9 to 5 or to 5.30", whatever it is. Then he will look at his employment and say that he is employed every morning from 7 to 10.30, in the evening from 5 to 8.30, and on Saturday or Sunday whatever it is, re-stoking the boilers for the Monday morning perhaps from 8 o'clock in the evening to 10.30.
Normal working hours for casual labourers employed by the Office of Public Works are those hours occurring between 9 and 5.30 or 6, whatever is the current employment. Overtime is, under this section, to be disregarded. I want to make it quite clear that in the case of a person in that kind of employment the stipulation that his rate of injury benefit shall not exceed the weekly earnings does not apply, because weekly earnings would be only such earnings as he earns during the normal working week which, as I have already shown, will be a minor part of his normal weekly earnings.
I do not see any way out of that except by getting rid of this business of stipulation that overtime has to be disregarded. Is not every workman entitled to say: "My wages include my ordinary rate of pay every week and my overtime"? If that only measures up to the amount of the injuries benefit that he is to be paid, surely he is entitled to be paid the full injuries benefit. Why should overtime be left out?
Perhaps Senator O'Quigley would ask Senator Garret FitzGerald that question, because he recommended in his recommendation to me in the Commission's Report that overtime and short-time should be disregarded.
I shall ask Senator Garret FitzGerald if the Minister will allow me.
In the case of the boilerman it would not be a question of the Deciding Officer asking the Office of Public Works what are the hours of employment of labourers in the Office of Public Works. It would be a question of the hours of employment in the occupation of boilerman that would arise. Despite what Senator O'Quigley says to the effect that there is no such thing as a normal working week, between the Deciding Officer and the Office of Public Works I presume that they would be able to work out what the normal working week was. It is the normal working week in the particular employment in which he is employed.
We are dealing here with compensation for loss of employment due to injury. We have in this House on previous occasions dealt with compensation for loss of employment arising, for example, out of transport legislation. In such compensation overtime is taken into account provided that it is normal to the job. In other words, you can disregard overtime which was haphazard or not regular, but where overtime is usual in a particular job that is regarded as part of the emoluments of the job itself. I have experience of legislation dealing with this in Northern Ireland and, again, it is clearly provided that overtime, where it is a regular feature of the job, is counted in as being a matter appropriate for compensation, or compensation for the loss of the job. If the job has a regular feature of overtime it is extra payment for something that is built into the worker's income on which he comes to depend. I cannot see why we are specifying "excluding overtime" in a matter like this when the compensation is for loss of job due to injury, where compensation for loss of a job due to another factor takes in overtime. Why should we exclude it in this case?
The question will be what is the normal working week.
In the employment?
In the employment. I do not think that it necessarily means that it has to be negotiated between the trade union and the employers.
Who is going to gainsay what has been agreed between them?
It is a question of establishing the normal working week in the particular employment.
Let me take another example, of a waiter in a hotel in Dún Laoghaire. This is just one of the employments that occurs to me of trying to consider what is his normal working week, whatever anybody else may call it. I am talking about a man employed to do two hours a day in the first instance. He is called in to do relief duty during lunch time for two hours on six days of the week and for that, let us say, he is paid 5/-an hour or £3 a week. He is at that work for a week when his employer says: "I am very busy in the evenings. I have a bit of overtime for you from 8 o'clock until 11 o'clock." That is 18 hours a week. He pays him 25/- per evening, or £7 10s a week, so his weekly earnings are £10 10s including overtime. He is quite happy earning £10 10s. Then he gets injured and we have to consider what compensation we will pay him. He is earning £7 10s a week overtime and the rate for his normal wages is whatever the Minister likes to fix it at. It may be £6 a week. He is earning £7 10s a week overtime but the only pay he is getting during the normal week is £3. The Minister talks about £7 5s, and so on, but that is all gone by the board because overtime is not entitled to be taken into consideration.
I think Senator O'Quigley is under a complete misapprehension. Let us take the case of a waiter who works two hours a day at lunchtime and gets 7/6d an hour. If he works five days a week he earns £3 15s. He also takes a job at night for an hour or two. Senator O'Quigley considers that if he gets injured the hotel proprietor for whom he serves lunch during the day will pay him compensation on the £3 15s. That is not so. It is expressly excluded by the section. He is to be paid for a full normal working week. A full normal working week is 40 hours, or 45 hours, or whatever is the normal number of hours for a waiter to work, whatever is the normal number of hours in the trade of waiting as accepted by employers and employees. If the normal wage for a full normal working week is £12, that is the figure that is to be taken for compensation.
It is expressely stated in the Bill: "...shall be the rate of his remuneration at that time for a full normal working week in the employment in which the accident occurred...". Not "his full normal working week" but "a full normal working week". The section also provides that "if he was not employed fulltime in that employment at the time of the relevant accident, the rate of remuneration which would be provided by his employer for a full normal working week..." That is what the hotel proprietor would have to pay a whole time waiter whom he employs from 8 o'clock to 6 o'clock, five days a week, or whatever is the full normal working week. Undoubtedly that is the correct construction and Senator O'Quigley is under a misapprehension.
May I explain further? It is not the basic weekly wage. It is the rate of pay for a full normal working week. Take the case of an agricultural labourer who may have a basic rate of pay for a certain number of hours a week. The farmer may be paying him more for a longer working week. If the man goes in on a Saturday or Sunday afternoon to milk the cows and if he is paid a weekly rate for that, the Deciding Officer will not inquire whether he works longer than the hours that are laid down and applicable to the minimum agricultural wage.
Perhaps the Minister could help me further. Take the case of a bus driver. On many of the provincial runs it is cheaper regularly to roster a bus crew on overtime rather than to employ a second crew. It would be a regular feature of that employment that the man would work, say, 56 hours a week and get paid for a 56 hour week, 42 hours on a regular basis plus 12 or 14 on overtime. If that man is involved in an accident and he qualifies under this Bill, would the benefit be calculated on his regular income per week which is on a 56 hours basis, or on his basic pay? His basic pay would be expressed as so much for a 42 or 44 hour week, whereas his regular income would be far more than that. Which sum would be used in the calculation?
I cannot say that. It will be a question for the Deciding Officer to decide what was his pay for a full normal working week in that employment.
No, it would be basic pay.
He has to disregard overtime under the Act.
If the bus driver to whom Senator Murphy referred was earning overtime, but that was not a regular feature of bus drivers generally, I take it that would be looked upon as overtime. The question to be decided is what, in fact, is the rate of pay for a normal working week in the employment. I can see that in some cases it could be quite involved to decide that.
The Minister is actually directing the Deciding Officers to disregard overtime no matter how regular a feature of the employment it is. I cannot see any Deciding Officer having the temerity to include overtime no matter how regular a feature of the employment it was when the Act says he must disregard it. If he did include it, it would probably be disallowed by the Comptroller and Auditor General. We should consider an amendment deleting the phrase, or if the Minister is not prepared to go that far, including the word "casual" before the word "overtime". That might meet the case.
With regard to what the Minister said about the Commission's recommendation, if his predecessor had appointed me to the Commission three years earlier when it was first established, I might have had some comments on this recommendation, but the Minister will appreciate that I did not feel able to go over the 200 odd recommendations they had already worked out when I was appointed. If I had, the Commission's report might have been held up for another six years. The Minister will believe that.
I think some modification of this is required. Perhaps the inclusion of the word "casual" might meet the real difficulty while maintaining the Minister's understandable position of trying to base this on the man's ordinary earnings.
I think that "a full normal working week" is adequate.
It is quite adequate if you do not add the phrase "overtime being disregarded".
I think the Minister is agreeing to delete those words.
No. It is quite justifiable to disregard overtime because one man in a particular type of employment might be lucky enough at the time of an accident to be on overtime, whereas another workman in the same type of employment might not be on overtime. Therefore, there would be a limit imposed on the two people. It is a question of establishing the full normal working week in the particular type of employment?
The Minister is saying that there can be a case established for overtime and that overtime of any kind must be disregarded no matter how much a part of the normal working week it is. Would the Minister like to amend this to say that the overtime if it is irregular, can be disregarded or that it shall be disregarded? That would be reasonable.
I should not like to attempt to define casual overtime. I think what the Deciding Officer has to do is to decide what is the full normal working week in the employment in which the accident occurred, disregarding overtime over the full normal working week.
The Minister has made an interesting point. He has suggested that what he means by this is that overtime over and above the full normal working week should be disregarded. If the Minister has said that we would be happy with it. It is not quite clear what the intention is, having regard to the wording here.
Would the Minister look at this between now and the Report Stage?
We shall see what way the decisions go.
This is the House of Parliament.
It is perfectly obvious here that it means the full normal working week in the employment in which the accident occurred.
It is perfectly clear what is written down here but the Minister says this is to be interpreted as meaning that the casual overtime is to be disregarded but if the casual overtime is a regular feature of the working week, as in the case of Senator Murphy's bus driver, that it should be included. The point I am making is that it should be illegal. We should co-operate with the Minister.
I did not say that the bus driver would automatically be in but he might be.
Our point is that he cannot be in.
It depends whether he is working the full normal working week.
Senator Murphy put it quite well.
I am talking about the man whose duty provides that he will have to come on duty. I refer particularly to provincial men. It is cheaper to put the roster man on overtime regularly than employ a second crew. When this man takes up this job he knows this overtime is a regular feature of the job. He has to work those hours regularly every week to get his income. This is recognised as regards holidays. When he goes back after holidays he does not go back to the basic pay but to the pay which includes this overtime.
This is a regular feature of the job. If a man earns £20 in this sort of a job and his basic pay for a normal working week may simply be £12, surely it is quite wrong that you calculate his compensation on the basis of the £12 a week? It should be calculated on the £20 which was his normal expectation on the particular job. This man was obliged to work those hours. His earnings would be, say, £20. The wording of the section means that the Deciding Officer is not having regard to overtime in the matter of compensation. Would the Minister have a look at this between now and the Report Stage?
I do not want to cover the type of case Senator Murphy referred to. The question to be decided is what is the normal working week of a bus driver.
What he would earn in the normal working week?
Yes, in the employment in which the accident occurred.
There is no such thing as a normal working week in employment. There are all kinds of conditions and types of employment. Some men get overtime in particular jobs and some do not. Some men get bonuses and others do not. The earnings of those particular people or what they would earn when they work a full normal working week includes overtime and involves many different types of employment. Otherwise, if you take CIE, you would have to take the average remuneration from the Chairman down and say this is the average for it. It seems to me that the Minister is confused as to the meaning of this.
I am perfectly satisfied about it. It is a full normal working week in the employment in which the accident occurred, overtime being disregarded.
For remuneration?
This is a principle which applies already and it has been decided already for years in determining whether or not a non-manual worker is below or above the level for compulsory insurance. This is what has been done for years.
Would the Minister tell us what has been decided so that we can now know what is precedent?
I have already explained as well as I can that it does not necessarily refer to a basic wage. It is the question of deciding what is, in fact, the full normal working week in the particular employment.
Does that mean excluding overtime regardless of whether it is a regular feature or an integral part of the working week? It would be the roster in the particular employment. Is that the Minister's intention?
It is. Each case obviously would have to be decided on its merits.
We are trying to give the Deciding Officer power to try each case on its merits without being tied down.
The Deciding Officers are doing this for years.
They are not doing it under this legislation.
They are doing it under the social welfare legislation.
This legislation says that the overtime is to be disregarded. Are the Deciding Officers allowing overtime under existing legislation?
They are deciding what is the normal week's pay. They are deciding each case that comes to them. They have regard to the facts of the case. I would not like to try to define casual overtime.
I think we all go with the Minister when he is talking about casual overtime.
We ask the Minister to provide that casual overtime should be disregarded and the Deciding Officer should decide each individual case in accordance with what the Minister has said. There should be no such discretion and overtime should be taken into consideration. I am not prepared to accept the Minister's statement that under existing legislation overtime is disregarded. I am quite sure that the Minister's officers could not disregard overtime in all cases. The Minister should come back on Report Stage and give the Officer discretion.
What about the man working 80 hours a week in an employment regarded as a 40-hour week?
He would be breaking the law.
Do not mind that for the moment. The point I am making is aimed at building up to the maximum number of overtime hours instead of an imaginary number. It is quite obvious that the man working regularly and earning according to the number of hours he works will not get fair compensation in relation to his weekly earnings. This Bill is designed to penalise the man who works overtime.
There were cries of dissent about 80 hours. Legal or illegal, the roster for the Garda Síochána in many stations throughout the country is up to 120 hours a week.
The Minister has said, and it is intriguing, that this type of thing has already been decided by Deciding Officers in the Department. We, as a House of the Oireachtas, are deciding now what is to be decided by the Deciding Officers. We should not forget that we are one of the Houses of Parliament in this sovereign, independent State. Telling us what Deciding Officers may decide means nothing. The Minister may tell me that a drop of rain has fallen upon a pane of glass outside. That means nothing.
It is more poetic, though.
What the Minister is talking about is what Deciding Officers decide in relation to what is meant by casual overtime. That seems to me to be the kind of thing that falls to be decided under Part II of the First Schedule. Deciding Officers at the moment have to decide what is casual employment and presumably they are in a position to do that to the satisfaction of the Minister. That being the case, are we not entitled to say here that what we wish to exclude from this subsection is casual overtime? The Minister says: "You cannot define casual overtime". His Deciding Officers have, under the First Schedule of the Social Welfare Act of 1952, decided what employment of a casual nature is.
If they are able to do that they should certainly be able to decide what overtime of a casual nature will be under this Bill and that is what we are prepared to agree to exclude but we do not agree that where overtime is a regular feature of a normal working week of a charlady in a hotel, or a porter, or a rural bus driver, and it should be excluded from the computation of the person's weekly earnings. The Minister has made no case except to rely on the Majority Report which he has already turfed out the window ignominiously, having praised those responsible for its compilation. That is the only basis on which the Minister can rely. It does not get away from the fact that people will be affected. I can mention only the boilermen employed by the Board of Works. I presided over the destinies of nine boilermen in my time as a member of the staff of the Office of Public Works.
And did not do well by them.
I did as well as I could. I resented the low rates of remuneration I was authorised to pay them. They are the people I am concerned about. There will be dozens of others who will not get the maximum benefit because they will be tied by the amount of money they earn during what is a normal working week for Board of Works labourers.
Question put.
The Committee divided: Tá, 26; Níl, 14.
Tá
- Ahern, Liam.
- Boland, Gerald.
- Brennan, John J.
- Browne, Seán.
- Connolly O'Brien, Nora.
- Dolan, Séamus.
- Killilea, Mark.
- McGlinchey, Bernard.
- McGowan, Patrick.
- Martin, James J.
- Nash, John Joseph.
- Ó Donnabháin, Seán.
- O'Kennedy, Michael.
- Eachthéirn, Cáit Uí.
- Egan, Kieran P.
- Farrell, Joseph.
- Fitzsimons, Patrick.
- Flanagan, Thomas P.
- Honan, Dermot P.
- O'Reilly, Patrick (Longford).
- Ormonde, John.
- Ryan, Eoin.
- Ryan, Patrick W.
- Ryan, William.
- Teehan, Patrick J.
- Yeats, Michael.
Níl
- Conlan, John F.
- Crowley, Patrick.
- Davidson, Mary F.
- FitzGerald, Garret M.D.
- McAuliffe, Timothy.
- McDonald, Charles.
- McHugh, Vincent.
- McQuillan, Jack.
- Malone, Patrick.
- Murphy, Dominick F.
- O'Quigley, John B.
- O'Reilly, Patrick (Cavan).
- O'Sullivan, Denis J.
- Rooney, Éamon.
Tellers: Tá, Senators Browne and Farrell; Níl, Senators Conlan and McDonald.
Question declared carried.
Section 26 agreed to.
SECTION 27.
I move amendment No. 57:
In subsection (2), to delete all words from and including "disqualification" in line 44 to the end of the subsection and substitute: "temporary disqualification for receipt of occupational injuries benefit or any amount under section 26 of this Act, provided that when notice is given of the accident the disqualification shall be lifted and all payments due since the accident shall then be made".— Senator Garret FitzGerald, Senator John B. O'Quigley.
This amendment deals with subsection (2) of section 27 which says that regulations may provide for disqualification for receipt of occupational injuries benefit of workmen who have not given the prescribed notice of the relevant accident.
This seems to be an entirely inappropriate procedure; that a workman because of his failure to give notice, should be permanently disqualified and that the Minister should contemplate making regulations that would do so because there is no limitation here on the period of such disqualification is something we cannot accept. The amendment put down here changes this so that the disqualification shall be:
Temporary disqualification for receipt of occupational injuries benefit or any amount under section 26 of this Act, provided that when notice is given of the accident the disqualification shall be lifted and all payments due since the accident shall then be made.
It seems quite wrong that a workman, because of his failure to give notice of the accident—a technicality which he may not have understood—should be disqualified and wrong that we should give power to the Minister to disqualify him for a period. The amendment is a more reasonable approach. When he gives the notice he will then get the benefit, and get the benefit retrospectively, and shall not be at a loss because of his failure to comply with what appears to be a technicality.
I do not think this amendment is necessary. The intention would be normally to pay any arrears which might have accumulated because of the workman's failure to give notice but, before such accumulated arrears would be paid, it would be necessary for him, first of all, to comply with the regulations for the claiming of benefit. It is necessary to have this power in order to ensure that this will be done within a reasonable time.
That is precisely what my amendment says, except for the last ominous words "within a reasonable time". If the Minister intends that if a workman does not give notice within what he calls a reasonable time he shall not get the retrospective benefit, I do not think we should give power to the Minister to impose regulations which could be of that character. The situation should be left that as soon as the workman does give notice the disqualification should then lapse and he should get the benefit, if his failure to give notice is accidental and not his fault.
If it is accidental and not his fault, the arrears will be paid. If, on the other hand, the workman just ignores the request to do it and then some time afterwards decides to give notice, it is quite justifiable that this power should be there and it is necessary to have it there so that it will be possible to administer this scheme properly. They are two different things—the workman claiming compensation and giving notice to the employers of that taking place.
I do appreciate the Minister's difficulty; they seem to be near equivalent to each other in the context of legislation. The problem here is that in both cases the workman might suffer through failure to take this other action in relation to his claim. If he does not he loses out and the Commission recommended that that kind of disqualification of a workman is something which should only be introduced if he had been given a long period to do this. I admit it is a difficult problem. The whole legislation is difficult but they are near equivalents. I do not think that should happen, that the workman should be disqualified without having been given ample time to give notice of taking proceedings.
The situation is that under the existing Workmen's Compensation Act the workman had to give notice to his employer as soon as practicable after the happening of the accident. That was only obligatory on him if the employer did not know about it. But the employer knew about it; he was brought on the scene or he knew about it through his foreman or ganger. That particular requirement of the Workmen's Compensation Act never gave rise to difficulty. What did give rise to difficulty was not commencing proceedings within six months of the occurrence of the accident.
There were some insurance companies who acted rather outrageously in that context. They kept negotiating with the solicitor for the employer, discussing the amount they would pay, and so on, up to maybe five months and 28 days and then on the 29th day they said: "No, we will not have it." Then, of course, there was no time to get out the proceedings until six months had expired and the man found himself out. That happened in a number of cases. That happened in the case of a very few disreputable insurance companies but people got wise to them in time. I do not know that these were the clever claims managers. They were trying to get in well with their employers.
But, let it be said there were other circumstances in which people did not notify or take proceedings because they met with an accident which did not mature into a sufficiently serious condition until such time as six months had expired, or their doctors did not diagnose that their particular ailment was attributable to the accident or the facts were not given so as to enable the doctors to diagnose that the particular ailment was attributable to the accident with which the workman had met.
It is not correct to say as in the Majority Report, and there is a lot wrong in this Report, that the courts took a narrow view. That is not correct as the courts nearly got "workmen's compensation back" in leaning over backwards. The courts said this: "This is as far as I can strain myself and the law and that is it". It is not at all correct to say the courts took a narrow view. That merely represents the number of decided cases against the workman; it does not decide the multitude of cases in favour of the workman where he was apparently well outside the provisions of the section and where the courts strained themselves in leaning backwards to bring him within the provisions.
What we are concerned with here in this particular section and on this amendment is to ensure that the Deciding Officer—and I do not know whether the Minister will be able to enlighten me on this—will decide that the man or woman had reasonable cause for not notifying the accident. I take the hypothetical case of a person in an institution who is overborne by somebody in authority and who did not notify of the accident as soon as practicable which might have been a matter of 10 days or a fortnight or three weeks or a case might go on for six months and only then when the relations or his parents got fed up with him sitting around and said —"you better go and get something done" and somebody spoke to somebody else the injured workman made application to the Department of Social Welfare. You cannot blame the workman in that kind of case for not having notified as soon as possible. I do not see any reason why that person should be denied the retrospective element in the workmen's compensation.
He will not be.
That is what the Act says.
Not if there is good cause.
I understand the Minister to say the very opposite— the time between the accident and the notification.
I said normally arrears would be paid.
Who decides this? This is decided by the Deciding Officer? Who decides whether there is good cause or not? I do not think we should leave that discretion to the Deciding Officer. I do not see why the workman should have to say why there should be good cause and I do not see why there should be a penalty.
We have to try to make the scheme workable.
Does the Minister suggest that my amendment would make the scheme unworkable?
It is completely unnecessary.
That is not the point; does the Minister say that it is unworkable?
It could be.
"...provided that when notice is given of the accident the disqualification shall be lifted and all payments due since the accident shall then be made."
It is necessary that there should be some sanction against a man who refuses to give notice until such time as he gets round to it.
I quite agree. My amendment provides that he should be disqualified until he gives notice.
If a man is refusing to give notice it should be possible to say—"if you do not own up you will not get the benefit."
That is why I provide for temporary disqualification.
The Senator provides that he must get the benefit anyway.
The Minister wants to penalise the man by telling him if he does not give notice he will be penalised; he will not get the back money either.
It is quite obvious that in any workmen's compensation procedure notice of the accident should be given as soon as possible, preferably at the time of the accident. If I understand the section right what it says is if notice is not given as soon as possible without good cause then the workman who did not give notice will lose his benefit until such time as he does give notice.
The workman can be permanently disqualified under this section as it stands. What I want to ensure is that disqualification will only last so long as he does not give notice. When he does he should get the back money then. It says:
"...disqualification for receipt of occupational injuries benefit or any amount under section 26 of this Act for such period as may be determined in accordance with the regulations".
On request?
On request, the requirement to give notice.
I thought that the Minister said request, not requirement, which is a very different thing. A workman may not understand the meaning of "requirement" and he should not be penalised for his failure to understand that. If it were "request" it would be reasonable to say that if the worker is requested to give notice of the accident and he does not do so then he has defaulted and in those circumstances some penalty may be appropriate, though one should be slow about imposing penalties in matters of this kind. The Minister has not the word "request", but "requires", which means a legal requirement failure to fulfil which can leave a workman suffering from loss of benefit or disqualified as a result of a term which he does not know and an administration about which he knows nothing. I do not think that that is satisfactory, unless the Minister proposes that there should be a formal request made to the workman and he is notified that he will be in default if something to which his attention is drawn is not done.
Could the Minister say if there is any similar requirement in relation to disability benefit under the social welfare code?
Yes, there is. If a claim is not made within a reasonable time or if there is not good cause shown for the delay, then the benefit would not be payable until such time as the claim was made. You could not possibly administer a scheme like this and allow the workman to come in at any time.
I quite agree with that.
I do not.
I agree that there is difficulty about administering a scheme unless people make claims within a reasonable time. Somebody may say that an accident occurred three years ago and when the Department come to investigate it, or the people by whom he was employed, the employer may be a company which may have gone into liquidation.
It does not apply in the courts dealing with things within six years under the statutes of limitation.
There was the old six months rule in workmen's compensation cases where you had to commence your proceedings within six months unless you could show reasonable cause. That has given rise to more litigation and to more expense to workmen and employers than any other section of the workmen's compensation code. I do not particularly like the section, because it is a restriction upon the entitlement of a workman to the benefits of legislation enacted for him. There can be cases, as we all know, of people working in institutions and the head of the institution may say: "You should put up with this kind of thing, it is inevitable" and a whole lot of other palaver, and the time may pass and the person may find that he is not getting any better and he may have to resign. Then somebody says "Why do you not go to Deputy So-and-so or Senator So-and-so, go along and say that you are entitled to compensation under the occupational injuries code?" Then they get this whole story and somebody says: "These things are the will of God" and that kind of thing, and time passes.
An amadán of that character could be deprived of compensation from the time of his accident up to the time of his making the application, and that can work out very harshly in cases of that kind. It is only in cases of that kind that failure to notify an accident within the prescribed time will apply in the case of people who do not know what their rights are or, knowing them, are afraid to assert them because of the environment in which they are employed. There should be a good deal of latitude given in cases of this kind, and reasonableness should be the determinant rather than a fixed point of time measured in weeks or months from the date of the accident. Certainly, once a person establishes to the satisfaction of this functionary whom we call the Deciding Officer, I do not see any reason for saying: "Because you did not exercise your rights or were too pusillanimous to assert them against your employer you can go now and whistle for the compensation you were entitled to up to the date that you notified us." I think that that is very wrong.
Without risking the displeasure of the Minister could I refer to the Majority Report which recommended a time limit of three years from the date of the accident causing the injury or in the case of death three years from the time of death? This seems reasonable. What is the prescribed time going to be? We are told that regulations may provide for prescribing the time, but that prescribed time could be anything from three weeks upwards. What is the Minister's intention here? If we knew what his intentions were we might incorporate it in legislation, which would make us all happy. The present deadline was considered by the Commission to be very unsatisfactory, and it says that the provisions of section 31 have been considered narrowly by the courts in some cases, resulting in hardship to insured workmen. Reference was made to a number of such cases, including one in which the worker lost his life because the time had run out owing to the death of his solicitor, and there are a number of other examples given. We ought to know the Minister's intentions. If he intends in the regulations to lay down the period of three years, then we could ask him to accept an amendment to included the three years figure in the legislation.
What it is intended to do in regard to giving notice is that it should be given as soon as practicable after the happening of the accident. I think that that is as reasonable as could be.
The regulations are going to say "as soon as practicable". Then it will be at the discretion of the Deciding Officer, who is to say whether it has been practicable in an individual case, and he has a complete right to disqualify any claimant no matter what may be the reasons for delay in making a claim.
If notice of the accident has not been given by the workman his attention will be drawn to that and he will be reminded of the requirement to give notice to his employer, and requested to do so.
We are back to "request" again. Why can we not write this "request" into the Bill and say that the Deciding Officer shall after a certain time elapses notify the workman of his failure to give notice, and that if after any period of X after that he fails then to give notice he shall be disqualified? That would not be unreasonable, but it should be put in the Bill and not be left to regulations.
The regulations have to be put before the Dáil and Seanad.
I get the impression that Senator FitzGerald is confused between two things. The extract from the Report, if I understand it right, referred to taking proceedings in court, which has nothing to do with notice to the employer.
It is the equivalent under the present legislation.
I am not quite clear about the procedure under the present legislation but I take it that at some stage notice must be given to the employer that there has been an accident, and the worker must tell him that he fell off and broke his leg or got injured in some other way. Unless the employer has got notice he will not know that an accident took place. Taking proceedings in court is a totally different matter. If I understand it correctly, there is nothing about that in this. The compensation under this Bill is something that the workman must claim. That period could be indefinite. There is no limitation of any kind. I want to ensure that if the man does give notice he will get the benefit from then on, and in my view he should get it retrospectively. I do not want him to be in a position where he can be permanently disqualified or disqualified for a long period by a Deciding Officer without this House having considered what the appropriate period would be.
He will get the benefit and he will get any arrears provided he does not unreasonably withhold the giving of notice. It is necessary to have some way of making it inadvisable for persons to refuse unreasonably to give notice.
The way to do that is to say that if he refuses unreasonably to give notice he will not get any payment until he does. Why should we victimise him? If he gives the notice the Minister can say: "No, you will not get any benefit for two years or three years or an indefinite period."
There is no question of victimising him. If he wants to victimise himself——
I am not sure if there is an appeal from this if the Deciding Officer decides that it is an unreasonable refusal. There is no question in this of encouraging him to give notice. He can be cut off completely and indefinitely. I am suggesting a temporary disqualification and not a permanent disqualification such as the section provides at the moment.
I can do no more than tell the Senator it will be a temporary disqualification.
Let us put it in the Act in case a successor of the Minister's might forget what the Minister has said.
It will be in the regulation.
It will not be in the Act.
The effect of this amendment would be that no matter how negligible, or careless, or deliberate, a man might be in refusing to give notice, when he finally does give notice, when it suits him, he must get payment right back to the accident
That is quite unreasonable.
It may be unreasonable. I am not an unreasonable man and if the Minister will meet me by inserting the word "temporary", I will meet him by dropping the amendment about the back pay.
"Temporary" refers to the back pay.
Under the old Workmen's Compensation Act which is still in force, if a workman refuses to give notice without good cause, and as a result of his refusal his employer is put at a disability in establishing whether or not an accident occurred, the man is entitled to no compensation whatsoever. I can visualise many a workman who would deliberately refrain from giving notice for the purpose of covering up the fact that his injury was not due to an accident at all, and I think it is most important that there should be regulations to ensure that frauds of this nature are not perpetrated.
Hear, hear.
He deliberately gives notice when it is late, and he comes in with the claim when there is no one there to disprove it, when the man who was working with him has gone to England, or when someone else has died. It is most important that there be regulations. Otherwise there could be wholesale fraud. The regulations should entitle the Minister to disqualify a man entirely if the circumstances so warrant it.
Whether or not the regulation would entitle the Minister to do that, it is quite clear from reading the last two lines of the section that there is no intention of disqualifying the man entirely. It says: "...disqualification for receipt of occupational injuries benefit or any amount under section 26 of this Act for such period as may be determined in accordance with the regulations". It does not say "altogether" but "for such period". That could obviously be applied to the period in respect of which he had not given notice.
The Minister has made it very clear that there must be some sanction on a person who, despite all requests and requirements, fails to give notice. Having given notice then, there must be some sanction. As I said, the last two lines make it clear that it is not the intention to disqualify him entirely.
I would accept that, if the Minister says in the regulation that the man will be disqualified for the period during which he did not give notice. That is reasonable, but one could argue whether or not it is good. The provision here is "for such period as may be determined in accordance with the regulations". That could be for any period. If the Minister will say that the disqualification for that period will be put in the regulation I will withdraw the amendment.
He may not even be disqualified for that period and he will get the arrears.
In no circumstances will he be disqualified for a longer period? Is that the position?
Yes, that is the position.
That is all right.
It is a pity it was not expressed in that way in the section.
Amendment, by leave, withdrawn.
Sections 27 and 28 agreed to.
SECTION 29.
Acting Chairman
Amendment No. 58 was taken with amendment No. 3.
Amendment No. 58 not moved.
Sections 29 and 30 agreed to.
SECTION 31.
Acting Chairman
Amendments Nos. 59 and 60 will be taken together.
I move amendment No. 59:
In subsection (1) (c), line 21, before "to attend" to insert: "provided that his medical condition permits him to do so"
The section says that regulations may provide for disqualifying a person if the person fails without good cause to submit himself from time to time to medical examination for the purpose of determining the effect of the relevant accident. "To submit himself" is rather ambiguous. A man may have an injury which makes it impossible for him to move from place to place. "To submit himself" sounds to me like something which could require a man to go to a hospital somewhere and submit himself to an examination.
It seems to me that we should make it clear that willingness to submit himself to examination means willingness to be examined, and it could mean examination on the spot, that it does not mean he must go somewhere and submit himself to an examination. I have covered that by suggesting in my amendment: "provided that his medical condition permits him to do so." That may not be the best way of amending the section, and if the Minister has some alternative I should be happy to accept it. It seems wrong that we should require a man physically to move himself to some other place to submit himself to examination when he may not be in a condition to do so. That is a possible reading, and, indeed, the probable reading, of the wording of the section.
Paragraphs (a), (b), (c) and (d) are governed by the phrase, "if the person fails without good cause". If it was his medical condition which prevented him from doing this obviously that would be good cause.
Amendment, by leave, withdrawn.
I accept the Minister's assurance on that. I move amendment No. 60:
In subsection (1) (d) to add the following:
"relating to the answering of reasonable enquiries from the Department of Social Welfare about his claim, obedience to his doctor's instructions, and other matters likely to affect his recovery".
This section refers to prescribed rules of behaviour, a phrase we have carried from the Poor Law presumably. This should be tied down.
I understand that one of the rules at present is that if a man wants to be from home for more than 24 hours he must give notice as if he were a serf. We do not want to go back to that kind of attitude. Prescribed rules of behaviour, to my mind, should be in relation to answering reasonable inquiries from the Department, or doing what the doctor says, on anything that may have an effect on the person's recovery. We should not have this Poor Law attitude of mind as if these people were serfs of the Department. For that reason I put this amendment down. I think it is a reasonable limitation. If I have overlooked some other reasonable requirements, they could be inserted. These were the only things I could think of as being reasonable in relation to prescribed rules of behaviour. If the Minister has something else in mind it could be added. At present limitations are imposed on people because they happen to be unfortunate enough to fall under this heritage of the Poor Law which we still have.
I think the rules of behaviour will be reasonable. They will be the rules which it is considered necessary to have. The only one in addition to those here which it is necessary to have would be when the person is absent from his place of residence that he should leave word as to where he could be found. That is certainly necessary.
Why is it necessary?
It is necessary because of the man's condition that he should not deliberately avoid such a check-up.
Of course, it is not. That is why I put in this amendment.
If he cannot be found?
Then he does not answer and he falls under the regulations.
The first paragraph of the section says "if the person fails without good cause".
If he never gets inquiries, obviously he cannot answer them.
Would the Minister consider accepting my amendment with the addition of leaving word of his whereabouts?
That is what we intend to do.
Put it in.
We shall do it but not in the Act.
It will be done by regulation.
The rules of behaviour are as follows:
He shall obey the instructions of the doctor in attendance and answer any reasonable inquiries by the Minister or his officers relating to his claim.
He shall refrain from behaviour which is likely to retard his recovery.
He shall not be absent from his place of residence without leaving word where he may be found.
He shall not refuse unreasonably to see the Minister's sickness visitor.
He shall do no work unless it be
(a) light work for which no remuneration is, or would ordinarily be, payable, or
(b) work undertaken primarily as a definite part of his treatment while he is a patient in or of a hospital, sanatorium, or other similar institution and his earnings in respect of that work do not, on the average, exceed 60/-a week, or
(c) work of the kind referred to in paragraph 7 of Part I of the First Schedule to the Act under a scheme that is, in the opinion of the Minister, charitable in character and purpose and his earnings in respect of that work do not, on the average, exceed sixty shillings a week.
There are two things I do not like about that. This refers to the Poor Law again. A man should not be compelled, under rules of behaviour, when he is absent from his place of residence, to leave word as to where he is going. I can quite see that if a man leaves home he should leave notice of where he is going but if he is only absent from his place of residence for a short time he should not be compelled to say where he is. That is the kind of attitude we want to get out of our regulations in this country. When you are dealing with people who are in ill-health you should not have that type of regulation. You should have a more humane approach with regard to such people.
It is not a question of giving notice of where he would be found, it is a question of leaving word.
We should not have the attitude with regard to work which is contained in those rules. That is also the kind of thing we want to get away from.
If a person is being paid money for incapacity for work, surely it should be established that he is not working? We have here some easement of that requirement in that we allow work of a certain nature from the point of view of financial reward. You have to have some way of deciding that a person who is being paid benefit, because he is incapable of working, is not, in fact, working.
Is there a time involved when he shall not leave his house? Is there a 24-hour period? It sounds like that, as if he was on bail.
There is no specific time mentioned that he shall not be absent from his place of residence without leaving word of where he may be found. That would only apply in the case where the person who is making the inquiry would find it impossible to contact an individual.
That is not what it says.
It has to be put this way.
That means the man must leave notice of his whereabouts in order to suit the officials of the Department of Social Welfare.
It has always been that way. If the person is not there it is reasonable to expect him to leave word with somebody to say where he may be contacted.
There is no requirement on any citizen of this country to leave a message for a Government officer to say where he is. There should be no such regulation in the case of a person who is disabled. It is reasonable that a man who is going away for any reasonable time should leave his address but the Minister should not put it in the present legislation that a man shall not leave his house at all without leaving word of where he is going. That is intolerable.
It is not. What about the case of a man who is inside his house and who sends out word that he is not there? I am talking about circumstances in which the inspector goes to a house and if the man is not there it should be possible for whoever is there to tell him where he is.
What about the case of a man who is living alone? If he is going to Mass is he expected to pin a notice on his door to say where he is?
He must employ a butler.
Normally, the social welfare officer is able to ascertain where the person is. This applies particularly to a man whom it is difficult to contact.
That is exactly the kind of thing we do not want. We do not want to have it that every man in Ireland in receipt of benefit may not leave his house unless X, Y and Z are informed. That is the type of thing we do not want in this legislation. It could be provided that a man would leave notice if he intended to be away for a considerable time. It is quite unreasonable for this House to allow the Minister to introduce into legislation that an Irishman cannot leave his house unless he has given notice of where he is going. I do not think the house should permit the Minister to contemplate the introduction of such a police State situation. A man has a right to go to the post office or to the pub without telling the Minister or his officials all about it in advance. Regulations should not be designed to control the activities of every Irishman who happens to be injured while at work.
What I appear to have been asked is to make a provision that would enable people to obtain benefits to which they are not entitled. According to Senators FitzGerald and O'Quigley, it should be feasible for such people to evade the social welfare officer. What is in the Bill is the minimum requirement we could have in order to avoid this type of thing happening. A person who is receiving benefit in respect of incapacity for work could be out working and it is the job of the social welfare officers to ensure that money is not obtained fraudulently in such circumstances to the disadvantage of genuine cases of need.
Is this to be a spot check? A man is supposed to leave word about his whereabouts. Supposing he leaves word at his home that he has gone to a certain place and then later finds he has to go to some other place, does this mean that he must organise a paper chase with the officer of the Department? Does it mean he must pin notes on trees telling the officer: "I will be at such and such a place at 10.15 and at such and such a place at 11 o'clock"? I am in agreement with Senator FitzGerald's efforts to get away from the Poor Law idea and I do not think the Minister lacks sufficient imagination to help us to get rid of that idea. This is not a question of the normal injured workman trying to evade the social welfare officer. Why, then, should we load the legislation on the basis of trying to catch the evaders and, in the course of that attempt, cast doubts on the honesty and integrity of nine out of ten workers in this country?
This would apply only in the case of a person who was obviously continuously and deliberately avoiding the social welfare officer. It is purely and simply to stop some person who is not entitled to benefits from getting them at the expense of the fund and the majority of the workers.
This Department like to frame the legislation so as to get as many people as possible in and they are happy only when they have everybody in the country under their thumb. The social welfare officer wants to investigate somebody. A simple way would be to write to that person——
Make an appointment.
——and say: "I called at your address and you were not there. I enclose a stamped, addressed envelope. Please indicate on which of the following dates and at what hour you can be seen."
The Senator said he had a simple solution. Supposing the person had gone away before the letter arrived.
The Minister may say that if that were done the man will be suitably hobbling around when the inspector calls and the inspector will be unable to find out whether he was working on the sly. Is there any advantage in the inspector going to see that man only to find he is not in? Somebody in the house says to the inspector: "I do not know where he might be. He went down the road a short while ago with his stick." You can have the widest regulations you like, but how will you deal with such a situation? You cannot beat the taciturnity of the Irishman.
If you were a Senator looking for votes you would find him all right.
That is why I ask Senators to apply their experience to the things we have been confronted with here today. We should not allow ourselves to be said by the Ministerial chair in this matter. When the inspector calls, what is to prevent the woman of the house saying: "I heard him going round the corner of the house a while ago"?
She might be deaf.
What we must be careful about is not to put on the Statute Book in 1966 the 1984 idea that big brother is always watching you and knows where you are to be found. There is no such requirement in the existing workmen's compensation code. In my experience of the operation of the existing Workmen's Compensation Acts, the private detectives of the insurance companies have been able to find out who was working for whom, when and for how long, and they have been able to give such evidence in the courts. Such cases, mind you, were few and far between. It was possible for the insurance companies to find out whether a person was out sweeping the yard with a brush or shovelling sand though that man had said he had no grip with his hand. But there were no police State regulations under the existing legislation.
Senators FitzGerald and O'Quigley seem determined to make it possible for people fraudulently to receive benefits to the detriment of the vast majority of injured workmen. Of course, Senator O'Quigley does not himself believe there would be any advantage in sending the person concerned notice of when the official would call so that if the person were working he could take the day off and stay at home. The Senator says that in his experience of the operation of the present Workmen's Compensation Acts, detectives employed by insurance companies were effective. Possibly they were and that may help to explain why only 9/3 out of every £1 in premium income found its way back to workers in the form of benefits. Obviously, we all agree that when a Fund like this is concerned, in order to ensure that the maximum amount will be available for those entitled to it and in need of it, it is necessary to have minimum controls.
Would the Minister say in respect of the 24-hour period if it is during the normal working hours of the Departmental officers that the notification is necessary, or does it apply at 10 o'clock at night or 8 o'clock in the evening or at 7 o'clock in the morning? Could you have an awkward inspector? They are human beings, too, but supposing that the Act says for the 24 hours of the day, could it mean that if an inspector called at 10 o'clock at night it would be necessary for the individual concerned to have left word that he had gone to So-and-So's house?
——or to an outside lavatory.
These social welfare inspectors will not be hounding people all the time; there are not sufficient of them. They will not call unless they have some reason to believe it would be advisable for them to do so. I suppose there is such a thing as night work; people engage in night work, and if he has reason to believe a man is working at night he will have to try to find that out.
Amendment, by leave, withdrawn.
Progress reported; Committee to sit again.
The Seanad adjourned at 10.05 p.m. until 10.30 a.m. on Thursday, 16th June, 1966.