Injuries to Property Acts and Damage to Property Act, 1933—Rules of Procedure. - Workmen's Compensation Bill, 1933—Second Stage.

Thursday, 7 December 1933

Seanad Éireann Debate
Vol. 17 No. 27

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Question proposed: “That the Bill be now read a Second Time.”

Minister for Industry and Commerce (Mr. Lemass): Information on Seán F. Lemass  Zoom on Seán F. Lemass  This Bill does not, I think, lend itself to the type of discussion that ordinarily takes place on the Second Reading of a measure. It is a Bill to amend and codify the existing law relating to workmen's compensation. It does not introduce any new principle. The principle of [1953] the measure, that any workman injured in the course of his employment is entitled to get compensation for that injury, or his dependants are entitled to get compensation in the case of death, from his employer, has been enshrined in legislation here for almost half a century, and is in fact enshrined in the legislation of all countries. This Bill is designed to give effect to certain changes in the machinery for the implementation of that principle, based either upon the recommendations of the Inter-Departmental Committee which met and reported on the matter in 1926, or upon the experience which has since been derived from the operation of similar legislation in other countries. We do not stick entirely throughout the Bill to the recommendations of the Inter-Departmental Committee. They were departed from in a few not unimportant particulars, but, in the main, the Bill is their product.

It will, perhaps, best serve the purpose of the Seanad if, at this stage, I merely give a brief indication of the changes in the existing law which it is proposed to effect by this measure. Taking these in the order in which they appear in the Bill, the first change made is in the definition of “workman.” At the present time the existing Act applies only to persons engaged by manual labour whose remuneration does not exceed £250 a year. That limit is being increased to £350, and certain additional classes of casual workers are being brought within its scope, more particularly those who are employed in connection with games or recreation through a club and those employed in or about the residence of an employer. Both these two classes were heretofore excluded from the scope of the Workmen's Compensation Act. The Bill also affects certain other classes such as share fishermen and crews on certain ships. The term “accident” is given an extended meaning so as to cover cases where, for instance, a workman acted without his employer's orders or contrary to statutory regulations. Senators who are familiar with the matter are aware that in the past injustice was occasionally done by the [1954] limitations upon the term “accident” which appeared in the original measure and which are now being removed, consequent on the recommendations of the Inter-Departmental Committee. The changes that we are making in this measure are in conformity with those that have since been made in other countries.

The amount of compensation payable in fatal cases is being increased from a maximum of £300 to £600. The original limit of £300 was fixed in the year 1906, and although in 1917 increases in the amount payable in cases of total or partial incapacity were made, no change was made in the amount payable in fatal cases, which is still subject to the maximum of £300 as it was in the year 1906. The Inter-Departmental Committee recommended that the amount should be increased to £600. They made various recommendations as to the allocation of that sum between the different classes of dependants.

We have not followed completely the recommendations of the Inter-Departmental Committee which did not prove to be quite suitable in all respects, but the provision in the Bill does stick fairly closely to what they recommended. The maximum sum of £600 is divided into two lump sums; one called an adults' lump sum, and the other, a children's lump sum. If there are no dependants at all, the claimant merely gets the amount required to cover medical expenses and burial. Under the existing law the maximum payable is £10. That is being increased under this Bill to £15. Where there are adult dependants, an adults' lump sum is also payable, and where there are children dependants, a children's lump sum is also payable. The adults' lump sum is a minimum of £200 and a maximum of £300. Subject to these limits, it is 156 times the average weekly earning of the deceased worker for three years. It will be distributed among the adult dependants of the deceased in such manner as the court may determine. The amount of the children's lump sum will depend upon the number of children and the ages of the children. It will not, in any case, [1955] be less than £200. In the Schedule of the Bill the manner of calculating it is set out. The Schedule provides that the employer shall pay, in respect of each child under 15 years of age, a certain sum, varying with the number of children, for every month that each child has to live until it attains the age of 15 years. Any compensation paid to the workman, in the interval between the injury and the date of his death, will be deducted from the compensation paid to his dependants after his death subject, of course, to the minimum payment in each case. Where the adults' lump sum and the children's lump sum together exceed £600, the Bill provides for a pro rata reduction of each sum so that in no case can the maximum payment exceed £600. Compensation awardable to persons partially dependent upon the earnings of the deceased workman will be proportionate to the compensation payable as if they had been wholly dependent, and that will be determined by the court.

Partial dependency, as now defined in the sub-section of the Bill, much to my surprise, caused considerable controversy in the Dáil. Under the existing law the position is somewhat anomalous. In the original Workmen's Compensation Act a phrase was used designed to secure that dependency would be interpreted as being dependent on the deceased for the necessaries of life. At first the term in the Act was interpreted in that manner by the British courts. In 1900 a case was heard in the House of Lords in which the judgment was given by the late Lord Halsbury who gave to the phrase “dependency” an entirely different significance. That particular judgment has been frequently the subject of criticism. It was based on a statement that no adequate definition of dependency had been produced, or was possible, and on that account the judgment stated that compensation should be payable in respect of the pecuniary loss suffered by persons on the death of the workman. While that was the law in Great Britain, account was not taken as to the extent to which a person was dependent for support [1956] on the deceased worker, but only of the actual pecuniary loss he suffered by his death. I said that that judgment was based upon a statement that no adequate definition of dependency was possible. That statement is incorrect, in view of the fact that there is in this Bill a definition of dependency which is admitted by everybody to work very satisfactorily. In fact, the satisfactory nature of the definition has been frequently the subject of comment in British judicial decisions. The change was made in Great Britain in 1923 when, following upon the report of the Departmental Committee, a Bill to amend the Workmen's Compensation Act, 1906, was introduced into the British Parliament. The phrase originated in the State of Massachusetts and was copied from there into the British statute.

The Inter-Departmental Committee that met in 1925 was representative of all different opinions, and recommended that the same phrase should be introduced here, so that the law, in that respect, should be brought into conformity with the law in Great Britain. In 1929 when a private Deputy introduced a Bill into the Dáil, and when that Bill went to a select committee, an amendment was proposed on behalf of the Minister for Industry and Commerce, which introduced the definition, which is now introduced into this Bill. That was carried unanimously and with the support of all Deputies present. It was, therefore, with some surprise that I found when this Bill came before the Dáil that the suitability of that definition was criticised from different parts of the House.

The criticism, in so far as directed to the merits of the measure, was based upon a misunderstanding, first as to the actual significance of the term used, and secondly the manner in which it had been interpreted in the British courts where it has now been the subject of legal interpretation and decision for over ten years. In every case in Great Britain in which that particular section of the British Act was involved the interpretation put upon it was one favourable to the [1957] workmen. The significance attached to the working of the section was that which was designed to attach to it in order to secure that compensation would not be paid merely on the ground of providing for the necessaries of life. Compensation has been paid in Great Britain in consequence of the decisions under that section on the basis which provides the necessaries of life corresponding to those enjoyed by the deceased workman's dependants before his death. In only one case was that particular definition held to be a limiting definition, and that was in respect of payments made by the head of a family in respect to insurance upon his life, which payments were held not to be in any sense a necessary of life, and consequently if one of the family was killed in an industrial accident, although that member of the family was contributing to the family fund, no compensation was payable in respect to the amount that the family expended upon insurance. Though this may have been a correct interpretation of the statute, having been made, it became clear that the phrase should be amended. If the head of a family provides a weekly or monthly or quarterly premium in order to ensure that upon his death a certain sum will be payable to his dependants, and thus to limit the possibility of their being involved in hardship, and if the continuance of that insurance was only possible because of the contribution received by the head of the family from the working members of the family, then if one of those working members is killed in an industrial accident such payment should be made to come in under this Act.

On that account I indicated in the Dáil that I would have prepared, with a view to insertion here, an amendment that would bring within the scope of the sub-section insurance payments of that kind. Whether it will be possible to get a satisfactory amendment, I am not able to say. I do not feel that I am under any obligation to produce such an amendment because, having made the offer, the amendment that had been moved was not withdrawn, but was made the subject of a division and, therefore, my obligation to [1958] produce an amendment here obviously fell. However, I am anxious that the Bill should be made as satisfactory as possible and, if a suitable amendment on the lines I suggested can be produced, I trust it will be considered here on Report Stage.

In non-fatal cases the position of the law has been that since 1926 the workman who was totally incapacitated was entitled to get 50 per cent. of his pay, subject to a maximum payment of £1. There were certain other provisions in respect of persons earning less than £1 or less than ten shillings but, for the purpose of noting the changes proposed to be made, we can confine ourselves to the general run of cases. That continued from 1906 to 1917 when, in consequence of the rapid increase in prices which had taken place in that year and the preceding year, a temporary Act was introduced in the British Parliament to permit of increases in the amount of compensation in non-fatal cases to the extent of 75 per cent. After that Act was passed, therefore, the payments of workmen's compensation in non-fatal cases were calculated on the basis of 50 per cent. on the pre-accident earnings increased by 75 per cent. That raised the maximum to 35/-. That temporary Act, known as the War Addition Act, which was designed, I think, to have a very limited life, was continued in 1919 and up to the date on which the Free State was established. It continued to be the law in Great Britain as well as in this country. In Great Britain, however, the law was changed in 1923 when the temporary Act was repealed and the original Act amended by increasing the maximum amount of compensation payable from £1 to 30/-.

Since 1923, therefore, the position in Great Britain has been that a workman totally incapacitated has been entitled to get compensation on a 50 per cent. basis of calculation subject to a limitation of 30/-. Here, however, the temporary Act was continued from year to year under the Expiring Laws Bill and is still in force. It is only now that we are effecting the changes in the law which would correspond to [1959] the changes effected in Great Britain in 1923. We are proposing to insert a maximum payment similar to the British maximum of 30/- but, instead of calculating the amount of compensation on the basis of 50 per cent. of the pre-accident earnings, we propose to do it on the basis of 75 per cent. of the pre-accident earnings. In certain cases, of course, the compensation will be 80 per cent. where the pre-accident earnings do not exceed £1; but in all other cases 75 per cent. It will be clear, therefore, that the amount of compensation in the vast majority of cases will be in future in the country substantially higher than in Great Britain. In the case of workers earning 60/- a week and upwards before the accident the compensation here will be the same as in Great Britain. In all other cases it will be higher except in one case where the two curves meet and where the worker was earning 25/- a week before the accident, in which case the compensation here is the same as in Great Britain. The worker who is earning £2 15s. 0d. per week—and I take it that of all the workers who are at present employed in the Saorstát, the vast majority of them would be at £2 15s. 0d. a week or below that figure—will, in the case of an accident involving total incapacity, get 30/-. In Great Britain he would get 27/6. At 50/- he is still on the maximum here, but only gets 25/- in Great Britain. If he were earning 40/- a week before the accident he would still get the maximum here of 30/- whereas in Great Britain he would get 22/6 and so on down the scale. The practice in other countries appears to be in all cases to pay compensation subject to a maximum at the rate of 66? of the pre-accident earnings. It varies from country to country. The 50 per cent. prevailing in Great Britain is low. It is a lower percentage payment than appears to be the practice in other countries. There is, however, no country, except one, paying more than 70 per cent. In future we will be paying 75 per cent. In Spain 100 per cent. of the [1960] pre-accident earnings is paid, but not in the form of a continuing payment as is proposed in this Bill. It is paid in the form of a lump sum for two years only, so that there is no comparison between the two countries. In some of these countries they have sliding scales. Sixty-six two-third per cent. of the pre-accident earnings is paid up to a certain proportion of the earnings and, over and above that, 22 2-9ths or some other percentage is paid; but in any case where I have been able to make a comparison between the law in other countries and the law proposed to be established here, the law here appears to be much more definitely in favour of the workman than elsewhere.

In the case of partial incapacity the amount of the compensation is calculated on the basis of the difference between the post-accident and pre-accident earnings. The same percentages operate. Where that difference is less than £1, an 80 per cent. payment is made. Where the difference is more than £1, 75 per cent. is paid. Under the existing law, if the incapacity lasts less than seven days, no compensation is payable. That period has been reduced to four days under this Bill.

Provision is also made for the making of conventions with other States providing for reciprocity in the matter of payments, and the recovery of compensation. Another change is that we abandon the principle of arbitration, and it is provided that the Circuit Court shall have exclusive jurisdiction to hear and determine all claims for compensation arising out of the Act, with an appeal on questions of law from any decision of the Circuit Court to the Supreme Court, but subject to such appeal the decision of the Circuit Court shall be final and conclusive. Up to the present there was an alternative to the Circuit Court of an Arbitration Tribunal but, in fact, that alternative has not been availed of in this country, and it is not necessary to continue it. The Bill provides for the registration in a register to be kept by the county registrar of the actual agreement in the payment [1961] of compensation, and not the memorandum of agreement. It also provides that if the registrar, for any reason that occurs to him, thinks it desirable, he can refer the agreement for consideration to the Circuit Court judge before registering. The idea of that provision is to protect the workman against being tricked into the making of an agreement detrimental to his interests.

The six or seven industrial diseases scheduled in the Act are also scheduled in the Bill. There is, of course, power to add by order from time to time other diseases or other processes, but as to the 24 diseases which are covered by existing orders the industrial processes through which they arise have not yet been undertaken in this country.

These are the principal changes. I think a discussion on them might be more conveniently left to the Committee Stage, when each section can be taken separately, because it is really a matter of discussing the sections one by one, rather than raising particular points in the course of a debate such as should take place at this stage. If any particular points relating to separate sections are raised, I feel disposed to leave anything I have to say on them until the Committee Stage, when they can be given more effective consideration, and a more lucid explanation of the various considerations which enter into the matter.

Mr. Counihan: Information on John Joseph Counihan  Zoom on John Joseph Counihan  I would like to get some information about Section 5, as I intend to try and have that section amended. It has been the practice of agriculturists and others to employ people on the contract system. I referred to this matter on a previous Bill but I could not get a satisfactory explanation. What is the position of a farmer who takes on a man by contract to cut thistles, to thin turnips, to cut weeds or to perform such work? Under previous Acts it was not clearly stated whether such a man would be entitled to compensation. The matter has never been definitely defined. It should be defined in some way under [1962] this Bill. Several cases have arisen where the insurance companies denied liability and persons who met with accidents were left without any compensation.

Mr. Comyn: Information on Michael Comyn  Zoom on Michael Comyn  This is a very liberal measure, and I think the Minister is to be complimented on the way on which it seems to take note of every decision which has been given under the Workmen's Compensation Acts since their inception. I believe this Bill will work. I do not intend to criticise it in any way, but I think—good though it is— it is capable of some amendment. Although it is perfectly right of the Minister to say that no useful discussion can really take place on the Second Reading, that any such discussion should be one conversant with each particular section, there are two or three matters which I should like to bring to the notice of the House now. The first one relates to casual labour. The Minister is providing that casual labourers shall be entitled to compensation. That is nothing more than simple justice. Then the difficulty arises, and it has been very strongly argued in the other House, that the effect of giving the right of compensation to the casual labourer will be to deprive him of employment which he otherwise might receive. It was stated that no man employing a casual labourer will wish to incur the risk of becoming liable, in the case of death, for a very large sum of money, or in the case of an accident to a weekly contribution, which might last during the lifetime of the labourer; and that consequently casual labour will be deprived of employment which might otherwise be available.

There is some substance in that contention, and because of the substance there is in it, I suggest to the Minister, as he has grappled courageously with this question of the casual labourer, that he should go further and finish his work and, as I consider, do it properly. I have been considering whether it would be possible for the Minister to complete the job now that he has undertaken it. So far as I know these Workmen's Compensation Acts, Ministers in every country [1963] have been always afraid to tackle the problem of casual labour. Our Minister on the present occasion has tackled it by providing that the casual labourer shall get compensation. I do not think he has met the case which was put forward against that namely, that the result of this legislation will be to deprive the casual labourer of the employment which he would otherwise have got.

Therefore, I think that the Minister ought to go further, and the way he can do it, I think—and I say it with great deference and with some doubt —is by a scheme of compulsory insurance, day-to-day insurance, or week-to-week insurance. That is, that a casual labourer should have a card, and that his employer on the morning he commences work, or at the beginning of a week, in case he intends to employ a labourer for a week, should stamp the card with a penny stamp or a three halfpenny stamp. That is all that would be necessary. A three halfpenny stamp would cover the risk. The casual labourer should have a card and the man who employs him should see that it was stamped, and that the stamp was defaced before he began to work. There may be a difficulty about seeing that the stamp was defaced at the proper time so as to avoid fraud. That might be a difficulty but it can be resolved by a little code in one or two sections in this Bill, which would then make the Bill perfect. Difficulties like that in my opinion should not appal us at all. It will be remembered that when the Sweepstakes Act was being discussed a question arose about the tickets in order to prevent the possibility of fraud. Senators in the course of the discussion devised a scheme which was successful. If Senators put their minds to this question a perfect scheme of daily or weekly compulsory insurance can be devised. I have consulted some people who have spent their lives upholding the rights of working men and they are of opinion that such a scheme can be carried out. Someone may say: “Oh, you are going in for a scheme of State insurance through the Post Office.”[1964] I am not afraid of a scheme of State insurance of casual workmen, provided a contribution is made by the men who employ them. We should not be turned aside by shibboleths or by fear of names or of words.

The casual labourer, just like the shorn lamb, is entitled to the special considerations of the State, and the least the State can do is to see that when that man is injured, he gets compensation, and that in getting compensation, he is not indirectly deprived of the chance of getting work. That is a problem to which the Minister will, I am sure, direct his attention with a view to seeing if it can be carried out. If it is carried out, I think that this measure will be the most liberal and the most complete measure of workmen's compensation that has appeared on the statute book of any of the countries with which I am acquainted, and I have rather wide acquaintance with matters of this kind. So much for that question of the casual man.

There is the other question which arises on Section 43 of this Bill. Section 43 is, in many ways, a very necessary section, and more necessary in other countries than in this country. It provides that when compensation is given to a workman by a judge, he is to get the whole compensation into his own hands, and cannot be defrauded. Unfortunately there were, some time ago, a few cases in which some solicitors took proceedings on behalf of workmen, and they settled the cases on the basis of a big sum for themselves and a small sum for the workmen. That should be stopped. It is not a thing that is very common in this country. The solicitors who are employed by workmen in this city never, as I am informed, take anything except their taxed costs. The solicitors in big business and the solicitors to whom the workmen ought to go, are most honest and honourable men, but there was in England, and there may have been in other countries, a great danger that an injured workman would be exploited. This section, however, goes too far and it goes too far for the reason that when a workman is injured, he does need the services of a solicitor, but he also needs contributions [1965] from friends. He needs help from friends, and he needs an advance of money, and if the advance of money is made by an individual, whether he be a solicitor or not, or by an organisation of workmen or by some society, pending the hearing of his case, that advance ought to be repaid and the judge who hears the case ought to go into that question and determine the amount of that advance and direct payment to the man who came to the rescue of the injured man when he was in difficulty. That is the second point on which I propose to introduce an amendment which, I hope, will receive consideration from the Minister.

I think these are the two main question. From my perusal of the Bill, I think there are some things which have been omitted. There are two or three classes of workmen whose cases are not covered. There is the case of the workman who is employed by a contractor who is not a citizen of Saorstát Eireann and who has no residence in Saorstát Eireann. There are some contracts given to people from Scotland, England, France and Germany. If a workman is injured while in their employment, he can, of course, while they are here, bring a claim for compensation and get the weekly payment; but if they leave the country, there is at present no method by which they can be compelled to continue these payments. I know of three or four cases in my own experience where workmen who got compensation are unable to recover it now because the person from whom they got the compensation is out of the jurisdiction and I think that ought to be remedied. The way to remedy it is, I think, to provide that if a foreign contractor employs workmen in this country he shall be compelled to insure them with a company having its headquarters here or through some person resident in the jurisdiction who would be responsible for the compensation.

There is another class of workers who, I think, are left out of the beneficent provisions of this Bill. They are ordinary labourers who are employed to do work on a foreign ship. The sailor on board a foreign ship is protected by the law, and the [1966] sailor on board an Irish ship is protected by the law, but if an ordinary worker is employed to work on a foreign ship——

Mr. Farren: Information on Thomas Farren  Zoom on Thomas Farren  Discharging cargo?

Mr. Comyn: Information on Michael Comyn  Zoom on Michael Comyn  No; in the case of discharging cargo the stevedore would be the person responsible and he is usually a man of substance, but there are many things done on a ship in port by ordinary workers—a carpenter might be taken on to do some work or a person might be taken on to wash the decks—and that class of person, receiving injury, has no effectual remedy against the owners of the ship. That is the other point and it is the only point. There is a provision in the Bill—I think it is Section 32—which provides that if a workman receiving a weekly payment ceases to reside in Saorstát Eireann he shall thereupon cease to be entitled to receive any weekly payments unless a medical referee certifies that the incapacity resulting from the injury is likely to be of a permanent nature. I think that that restriction is probably too severe.

However, I am sure the Minister had very good reason for limiting it in the way in which he has limited it. If, however, there was a workman who, for the sake of his health or for the sake of getting a cure, went to a foreign country, I think it would be very unfair to deprive him of his compensation while he was away. These are the only points that seem to me to require consideration by this House. They do not at all derogate from the excellence of this measure. They are simply intended to deal with matters which were probably overlooked. I know that the matter of the casual labourer was not overlooked, but I would urge the Minister in that case to take the bull by the horns, and, as he has given the casual labourer compensation, to see that nothing is done to deprive him of the chance of getting employment. If he does that and makes his Bill complete, this, I repeat, will be the fullest and most beneficent measure of workmen's compensation that has appeared on the statute book of any country.

[1967] I wish to say this further, that various claims have been made on behalf of workmen, various advances have been made in legislation in regard to workmen, and a great deal has been spoken about these advances, but there was no measure ever introduced so useful to the working man as the Workmen's Compensation Act. It is equal to all the others put together, in my opinion. It was the one protection that the labouring man and his family had. He went and gave his labour for reward, for wages. As the law stood before these Acts were introduced, if he received an injury in the course of his employment he was thrown on the world, and had nothing to keep himself or his family. Therefore, I say this is the most beneficent legislation for workers that has ever been introduced, and I should like to see it made as perfect as it is humanly possible to make it. I think this Bill has gone almost to the limit of perfection in that respect.

Mr. Johnson: Information on Thomas Johnson  Zoom on Thomas Johnson  The Senator who has just sat down suggested that there were some things possibly that had been overlooked by the Minister and his Department before bringing this Bill to the House. I can hardly imagine that anything has been overlooked. It is now over seven years since the report of the Committee was made, and we were informed time and time again that the report was being examined and that a Bill would be introduced shortly. Between promises of that kind, there was a close examination, so I cannot imagine that anything has been overlooked as the Senator has suggested. I should be better pleased if I could think that some things had been overlooked, because there are omissions from the Bill that I regret. I think it would have been better if the Minister had followed the report of the Committee right through and, if possible, had improved upon it. After all, whilst seven years' growth in a nation's life is not very great, in matters of industrial development it is claimed that there has been considerable growth, and that should be in the [1968] direction of improving the economic position of the working people of the country. It is no use talking of improving a nation's economic state unless that improvement is going to have its reflection in the workers' conditions, and seven years' consideration should have meant an improvement on the Committee's report, whereas, in one or two important respects, the Bill is less favourable than the report.

I would have been pleased if the Minister had given us a review of the position to-day as compared with the position in 1925-26 when the Committee's inquiry was going on. There were several recommendations of that Committee which were dependent upon the course of affairs in the few years that succeeded. Certain statistics were not then available and it was hoped that they would become available. Certain information was not then at the disposal of the Committee which it was hoped would be placed at their disposal. I should like to have from the Minister some indication as to the effect of the information that is now at his disposal, or presumably at his disposal, upon the situation that existed at the time of the Committee's report. There was one recommendation to which I should like to draw attention—paragraph 17 dealing with State encouragement of the “safety-first”campaign. I want to make clear that so far as trade unions are concerned, they are much more earnest about preventing accidents than having compensation paid to workmen for them. The representatives of the trade unions on that Committee were very glad indeed to urge and to subscribe to the recommendations regarding accident prevention and “safety-first” because, as I say, they were more concerned about preventing accidents than that workmen should get adequate compensation if accidents did occur. Not much of a positive character, that I am aware of, has been done to implement the recommendations of that Committee regarding accident prevention.

There is certain to be a considerable amount of industrial development and it is time, I think, that very positive action should be taken to give [1969] effect to these recommendations. I do not think that they all require new legislation. I think they are very much in the hands of the Department at present but I am very doubtful whether there is a sufficient accident prevention staff at the disposal of the Minister at the present time. While I say that I recognise that so far as reported accidents are concerned there has been a very great improvement. Reported accidents, according to the last report which is available, that is for 1931—another is due but it is not yet circulated—are very much less. There has been a steady decline since 1928 in the number of accidents reported—1,144 in 1928; 1,228 in 1929; 860 in 1930 and 738 in 1931. Even more gratifying, the decline in fatal accidents has been equal to the decline in accidents of all kinds. I say that is very gratifying but it has also some bearing on the scale of compensation that is contained in the Bill, especially in so far as it departs from the scale of compensation recommended by the Committee. Obviously, without question—any member of the Committee would have admitted it— there was some regard paid to the incidence of insurance as it was then known. It was on a higher range than exists to-day, when the risk was estimated. Notwithstanding that, there was agreement amongst all the members of the Committee representing various interests.

They came to a compromise agreement and they recommended certain rates of compensation including a figure of 35/- a week as the maximum for total incapacity. I say that was a compromise agreement. There was a compromise from the labour point of view and I presume a compromise from an industrial point of view and the insurance point of view. There was a general compromise to work out an unanimous agreement and that unanimity was reflected in the report. If it had been thought that it was going to be followed by legislation less favourable to workmen than the Committee unanimously recommended, there would not have been unanimity. There would have been certain parts of the report which would not have [1970] been agreed to by the labour representatives but to which they did agree in virtue of the fact that the insurance representatives and the employers' representatives had agreed to the rate of compensation. Now, though seven years have passed and an improvement in the economic condition is expected to follow Governmental policy, the Minister comes in and says “We are going to depart from that part of the report and reduce the maximum rate of compensation from 35/- to 30/-.” I do not think that that can be justified at all by any argument that the Minister adduced in the Dáil. I am rather disappointed that he should repeat here the reference to other countries. All these other countries that he refers to have been governed and are governed in the main, certainly all their workmen's compensation and employers' liability legislation has been enacted, by capitalistic Governments and Parliaments. They have been following long after even the British legislation in the matter and I would have hoped that the Minister would not, at least, base his case upon the enactments of capitalistic-minded Parliaments.

The Minister has also referred to the year 1917 and the Bill of that year which altered the compensation for total incapacity. He mentioned also the 1906 Act, at which time the maximum rate was 20/-. He might have gone further back than that. He might have gone back to 1897 when the maximum amount to be paid was 20/-. I think if the Minister would follow his own example and talk about costs of living he would find in effect that the result of his Bill is to give less, relative to prices, than they had as a maximum in 1897 and in 1917. During the discussion of the 1917 Bill the index figure in Great Britain ranged from 175 to 180; to-day it is 156. The Minister certainly ought to raise the maximum to 34/- and not to 30/-, if he wants to stick to that proportion. By reducing it to 30/-, he is paying the workers compensation in that respect lower than it was in 1917, 1906 or 1897.

While I admit that, as a matter of practical convenience, it is desirable to have some kind of maximum, I [1971] should like the Minister to get away from the thought that you have merely to compensate workmen on a basis which represents the minimum cost of the necessaries of life. Even the necessaries of life based upon to-day's prices, if one includes nothing more than food and fuel, for the ordinary family would be higher than 30/-. I shall not enter upon that just at this stage. I would, however, ask the Minister to recognise that, if a workman is worth to his employer £3 per week, the loss of the capacity to earn £3 per week should be compensated at something approaching the sum that is being lost, not the sum that it costs that man and his family to live on the barest margin. It is compensation for loss of earning capacity; it is not compensation merely for the purpose of keeping the man alive. The rate of wages is important, because it indicates the standard of living to which the man and his family have been used and if, by an accident arising out of that workman's employment, the family is deprived, then the compensation should be something equivalent to enable him to continue the standard of living which he was used to when in employment.

I admit that that principle has not been embodied in the British legislation, or in the report, or in the other definitely drafted schemes of workmen's compensation. But, because, as a matter of practical concern, it has not the inability to persuade capitalistic Parliaments to grant anything approaching justice in the matter should not be taken as a justification for reducing the maximum agreed upon by a body representing the two great interests of employers and workmen and including also representatives of insurance interests and legal practitioners. I think that that is the chief defect of this measure. There are other points, one or two of which have been raised by Senator Comyn, particularly that in relation to the employment of Saorstát workment by a Saorstát employer outside the Saorstát, that I hope will be remedied during the Committee Stage. [1972] The other matters that he referred to may be of importance, but it may not be possible to remedy those without international agreement. There are, however, one or two points that should be the subject of examination and discussion in the House.

On the whole, I agree that the Bill is a serious attempt to remedy many of the grievances which have exhibited themselves in the workmen's compensation law. I would, however, have been much more pleased if the Minister had gone further in such a way as to ensure that compensation that had been awarded should be paid. There should be some kind of compulsory insurance so that the workman should be guaranteed that when compensation has been awarded he would receive it. I think, even beyond that, the Minister might have considered favourably a proposal to have a State-guaranteed scheme of workmen's compensation, a matter which was favourably commented upon in the report. It is worth noting from the latest figures I have got, covering the year 1928, of the British insurance companies, which include also Irish figures, but of course only to a very small degree, that of the total sum received in premiums only 56 per cent. was paid for compensation, including legal and medical expenses in connection with the settlement of claims. I do not know how that figure would compare with Saorstát figures before or since. There are figures published and laid on the Table, but they are not totalled, and one has to make a long tot, which I have not been able to do, as to the proportion of employers' liability claims affecting the Saorstát. A very rough tot shows that out of £315,000 or £320,000 received in premiums in the year 1930 about £200,000 has been paid in claims. I should like to have heard from the Minister some figures as to the amount paid by employers in premiums and the amount paid by the insurance companies by way of compensation. It seems to me that 35 per cent. to 45 per cent. over and above the cost of compensation is too high a rate to charge employers for insuring against liability to accident. On the face of it, that is an indication that a [1973] very great change should take place in respect to the charge for employers' liability insurance. However, there is nothing of that kind in the Bill and we can only regret that the Minister, in his close examination of the problem, has not seen fit to deal with that side of the question. I give due credit to the Minister for having gone a long way to improve the law in relation to workmen's compensation but I plead with him not to justify his failure to do the perfect thing by reference to the practice of some of the most retrograde countries in the world.

Mr. Brown: Information on Samuel Lombard Brown  Zoom on Samuel Lombard Brown  I should like to join in the chorus of congratulation to the Minister on the introduction of this Bill. There is no doubt that it is a well-conceived measure. It codifies the law down to the present time, and the only important alterations that it makes in the law are those increases in the amount of compensation which, I think, having regard to what has happened in England and probably in Northern Ireland, were already overdue.

I should like to refer to a matter which was mentioned by Senator Johnson. I am not sure whether it was not also mentioned by Senator Comyn. It interests me very much as a lawyer. That is the case of the employer and his workman, both resident in the Saorstát, having a contract of service which was made in the Saorstát, but engaged in the performance of work outside the Saorstát. Under the Bill as it stands, if an accident happens while the workman is at work outside the Saorstát, he has no remedy against his employer in the Saorstát. An amendment in this connection was introduced in the Dáil, and there was a very interesting discussion upon it, both from the legal point of view and from the practical point of view. The Minister admitted that, although the workman and his employer lived in the Saorstát and had a contract of service made in the Saorstát, if the accident occurred outside the Saorstát, there was no remedy under this Bill. He objected to an amendment which made the employer directly responsible in a case like that, [1974] because he thought it was a matter which could best be dealt with by international convention. With great respect, I doubt very much if it is a matter that could be best dealt with by international convention. In any event, that course would necessitate delay and, probably, hardship, because these cases must continue to arise so long as the Border exists, and they will affect workmen resident in the Saorstát. No matter what international convention is made, legislation will be necessary. The convention itself will not be sufficient. Legislation will be necessary in order to give our courts jurisdiction to deal with the type of case I have referred to.

The Minister made a suggestion in the Dáil and said he would carefully consider the matter further. He intimated that he would try to devise an amendment which would fit the case of an employer resident in the Saorstát and having no assets in Northern Ireland whose workman, also resident in the Saorstát, met with an accident in Northern Ireland. Because he had no assets in Northern Ireland, the employer could not be made effectively liable there. The Minister promised to see if an amendment could be introduced to meet a case of that kind, pending, at any rate, an international convention. I suggest, with great deference to the Minister, that that is a course which may give rise to a certain amount of preliminary difficulty. The question whether the employer has or has not assets in Northern Ireland will have to be decided before the claim is made. The court, or referees, would have to be satisfied that there were no assets in Northern Ireland before that amendment would be of any use. I think that it is an amendment which would work very slowly and, probably, very uncertainly. I suggest to the Minister that, pending the international convention, he should take the ready course of adopting the amendment moved in the other House, I think, by Deputy Costello, and make compensation recoverable whether the accident takes place outside or inside the Saorstát.

[1975]Mr. Bagwell: Information on John Philip Bagwell  Zoom on John Philip Bagwell  As the Minister has said, there is no new principle involved in this Bill but there is a very great extension of the degree to which an old principle is to be applied. Whether it is wise, nationally, taking the long view, even in the interests of the class which this kind of legislation is designed to protect, to have the most generous scheme of workmen's compensation of almost any country, I do not know. After all, any reasonable person must admit that the question is one of degree. You could have compensation so onerous as practically to stop employment. It may be questioned whether this legislation does not go too far. There is always danger of that because, from the nature of the case, the spectacle of a man, through illness or accident, being reduced to a lower state of efficiency and he and his family being unable to live in the way they were accustomed to previously, is so distressing that there is a tendency to favour what I may describe as very humane legislation. There are political reasons, too, why legislation of this kind may go too far because, obviously, the enormous majority of any electorate consists of workmen. I am not making any assertion as to whether or not this Bill goes too far. I do not know enough about it to say that. Only time will show any little incongruities there may be.

There is one factor that I think must be borne in mind, and that is that if your scheme of compensation is more generous, obviously the cost of insurance is going to be greater and the need for insurance very much greater than before. I do not know to what extent employers in this country insure against this class of risk, and to make assertions without really being sure of one's data would perhaps be unwise. I will, however, hazard the guess that there is a very large number of workers who were not insured adequately against risks under previous Acts and still less in relation to the class of risk which will have to be faced under this measure. I am strongly disposed to agree with Senators Comyn and Johnson that there should be bound up with this legislation a large scheme of insurance [1976] against employers' liability, for the reason that if that is not done the responsible employer will insure adequately and it will cost him a great deal more than it would if everybody insured, because obviously the greater the scope of insurance the more cheaply it can be effected. I suggest the Minister should look into the compulsory insurance aspect in connection with this measure.

There are some points in the Bill in which it seems to me a question of principle is involved to a certain extent and although it may not be a new principle and there may be precedents for the sections to which I am going to refer, I think that on the merits some aspects of them ought to be reviewed. As regards the question of the liability of the employer for an injury, set out in Section 15 and 16, it seems to me to be wrong that when an accident results in a death or serious and permanent disablement to a workman the employer shall be liable. The section sets out the employer's liability “notwithstanding the fact that such workman was at the time when such accident happened acting in contravention of any statutory or other regulation 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 you have a principle of that sort it directly encourages people not to take the care they otherwise would take. Every accident is, so to speak, a national waste; every man who gets injured is a national loss, as it were. The measure as it stands is scarcely fair to the employer who takes every possible precaution to prevent accident.

In Section 16 it is set out that an employer shall not be liable in respect of any injury to any workman which is proved to be attributable to the serious and wilful misconduct of such workman. That is, of course, going very far, but the section also provides—“unless such injury results in the death or the serious and permanent disablement of such workman.” Then the employer is liable notwithstanding that the injury is the result [1977] of misconduct. That seems to me not to be quite right in principle.

As regards the question of sub-contracting, there are complications of which I am not aware. Surely a contractor carrying out for a principal some work which it is the contractor's business to do and of which he understands the risk—work to which he is constantly accustomed— should be the person against whom the claim should be made and not the principal who cannot know about that sort of thing in the same way as the contractor; otherwise the contractor would never be employed by him.

Section 24 seems to open up an important point in relation to unemployment benefit and it does not seem to be quite clear to me how people will be dealt with. It seems rather to leave things very much in the air. Sections 43 and 52, on the subject of solicitors' costs, appear to me to be excellent. I listened to Senator Comyn's remarks and obviously he is better up on the subject than I am. It does seem to be right that solicitors' costs should be subject to the control of the court. Abuses have been known to occur occasionally and the class of person involved is very often quite unable to protect himself. I recognise the justice of what has been said about loans. Loans should be repaid but I do not see why the court should not take cognisance of this matter just as well as anything else.

Those are the only points which appear to me to be necessary for the purpose of reference in advance. I hope the point about insurance will, in particular, receive further consideration from the Minister, possibly with a view to the suggested revision. If not, I would suggest to the Minister that the appointed day should be some distance off. People ought to be given time to consider this question of insuring under the Act. It would be inadvisable that they should be obliged to do anything too hurriedly.

Mr. Milroy: Information on Seán Milroy  Zoom on Seán Milroy  I listened to the statement of the Minister with considerable interest as I wanted to ascertain from his remarks if his attitude in regard [1978] to certain aspects of the Bill, following the discussion in the other House, had undergone any change. I had only two or three points specially in mind and I could not find any reference to these particular points in the statement that the Minister made to-day, He said in the other House that this was to be the law in regard to compensation in the future; he will recollect the passage himself in which he referred to that. He said that this codified measure would represent the law in this State in relation to compensation. If that is so, I think it is very desirable that possible anomalies and loopholes that might lead to unnecessary litigation or possibly involve injustice should be avoided in a measure of this kind. I have in mind in regard to these points the criticisms which were made in the Dáil and which could be repeated here with a very good show of reason.

I have studied this Bill in its entirety because the particular purport of the section can be grasped and the understanding of its merits or demerits can be understood without waiting to grasp the Bill as a whole. I must say that in reading the Bill and on reading its analysis in the Dáil, I find that, for the Dáil, the discussions were unusually enlightening and informative and that even the remarks and observations of the Minister were made with some glimmer of intelligent understanding. But there were two or three points which struck me as important. I was very glad to hear Senator Comyn referring to one to-day and I heard Senator Brown refer to another. Certainly before they can be allowed to stand as they are it is necessary that their meaning should be clarified by the Minister; in the absence of that an amendment would be essential.

The first thing to which Senator Comyn referred was with regard to casual labour. I do not propose to enter into the arguments adduced by him to-day nor to invite the Minister to defend these provisions of the Bill as they stand. I merely refer to this in order to indicate the aspects of the Bill where I propose to table amendments for discussion on Committee [1979] Stage. The Minister will recall the long discussion in the Dáil on paragraph (b) (iii) of sub-section (2) of Section 5. I think that that clause has left the Dáil in anything but a satisfactory state, that is to say (b) (iii) which includes the words. “employed for the purposes of any work in or about the residence of his employer.” I think that that matter, as Senator Comyn pointed out, involves I might say an almost 90 per cent. risk of depriving such persons as may be referred to here of the opportunities of employment.

One thing I would ask the Minister to do and that is when it comes to the Committee Stage to give some indication as to whether there are any statistics or information available as to the number of instances of people in such a category. I ask that so that we might have the percentage of the risks involved. Information of that kind would be very useful and would enable us to arrive at the point as to whether that particular provision is one the retention of which is necessary or whether its retention would add to the danger of the casual labourer of that kind to the extent to which I referred.

The next section to which I propose to table an amendment is Section 24. The Minister will recall the discussion in the Dáil on this section. Sub-section (3) of Section 24 reads: “Every order under this section shall be made subject to the condition that it shall cease to be in force if the workman receives unemployment benefit.” The Minister's main case in defending that section was on the grounds that it would prevent the workman receiving more than his pre-accident earnings if that section were to stand. It is an argument to which he seemed to attach considerable weight and, to a certain extent, the way in which he applied it was an ingenious one. But the one thing that he did not advert to, and that nobody else adverted to, is what I would like to refer to now. This is an abstract from the Minister's statement in Committee in the Dáil—“Take the case of a man earning 40/- a week. If he becomes incapacitated he is [1980] entitled, on the basis of total incapacity, to receive 30/- a week. If he recovers sufficiently to be able to take up light work and, in fact, succeeds in getting a job, say as a night watchman at 10/- a week, the difference between his earnings pre-accident and post-accident is 30/-, and he is entitled to get 75 per cent. of the 30/-, that is 22/6 or thereabouts. His position while he has the light work is that he is getting 22/6. If he loses the light work and becomes unemployed, he will be getting in unemployment insurance benefit a minimum sum of 15/-, and may be getting 25/-, which, added to the 22/6, will give him a total remuneration above that which he was earning before the accident occurred.” That is sound finance, but this is a defect in the Bill; that the Minister takes a man earning 40/- a week as a basis, and the compensation while incapacitated as the maximum of 30/- a week as the sum to be paid. That case is put where people earn 40/- a week or less. But take the case where a man earns £3 or £4 a week. The argument that the Minister developed there in no sense holds good.

That is one point to which I propose to table an amendment when the matter comes forward. The nature of the amendment that I would table would be that when such a case arises as is referred to in the section such case will be reconsidered by the court. The only other section to which I want to refer is Section 15. Senator Brown referred to this. I think it was in connection with a Saorstát workman meeting with an accident in the territory outside the jurisdiction of this State. I read that discussion very carefully and very minutely and I must say that the arguments of the Minister and the arguments also of the Attorney-General were decidedly unconvincing. I hope that in this respect at least an amendment will be carried in Committee which will remove from the Bill these defects to which I have drawn attention.

Mr. Foran: Information on Thomas Foran  Zoom on Thomas Foran  I served on the Workmen's Compensation Commission and it is on the report of that Commission that this Bill is largely framed. It has taken a long time to produce the Bill. [1981] In many respects I wish it had taken much longer because, to my mind, the workers under the new Bill will be adversely affected. I think the Minister has travelled over a well-worn path in producing the Bill. He has made very little changes. He certainly has taken a very retrograde step in reducing the maximum amount of compensation from 35/- to 30/-. The people who receive the 35/- under the present law are engineers, ship builders, dock labourers and mill operatives. I think if a census were taken of various occupations, it would be found that it is within these groups the majority of accidents occur. The very nature of their employment makes that possible. These are the people whose weekly contributions are going to be reduced from 35/- to 30/- under the present Bill. In doing that the Minister is following the minority report presented by the representatives of the employers. I have had a great deal to do with workmen's compensation cases. I have had a great deal of experience of them. Mention has been made here of the difficulty of a Saorstát employer and a Saorstát worker on a foreign ship recovering from a foreign owner. I have had cases of Saorstát workers engaged on a foreign ship meeting with accidents as a result of the defective gear of the ship. As that foreign owner had no agent or registered office here there was no way of recovering compensation in those cases. That is a matter that I think the Minister might look into with a view to providing some remedy.

The number of people brought under the provisions of the Workmen's Compensation Act has been substantially increased. We are now bringing in what may be described as the black-coated worker under it. Senators will realise that the number of accidents amongst this class is very small. Consequently, the insurance corporations are going to benefit very substantially by their inclusion. People with £350 a year are going to get the noble sum of 30/- a week if they meet with an accident. That is the boon and the blessing that is being conferred on them by bringing them in under the Act. Compensation has always been a [1982] puzzle to me. I could never understand why a person who meets with an accident should be deprived of the major portion of his weekly wages; surely that is the time such a person most needs it. If a farmer has a horse working on his land and it goes sick, half its ration is not cut off. The veterinary surgeon is called in to do what he can for the sick horse; but in the case of an injured, or a sick, workman half his ration is cut. He is left in the position that he has to try and make whatever provision he can with some of the voluntary hospitals with a view to getting well again. The employer benefits by the whole thing.

The Committee made one recommendation in their report which is not embodied in the Bill, dealing with cases where a person is so injured as to be almost totally dependent on the help of another person. In such cases the Committee recommended that a very substantial increase should be allowed in the weekly compensation in order to provide the necessary help for the injured person. I hope the Minister will look into that aspect of the matter and see that some such provision is made in the Bill. The case of a person who is injured and rendered almost sightless, making it necessary for him to get help from another person to enable him to get round, was considered by the Committee. It recommended, I think, 20 per cent. in those cases over and above the maximum. I think that a provision to that effect should be embodied in the Bill. There has been no departure regarding casual labour, except to a very limited extent. The casual labourer was always catered for. The compensation that should be paid to him has been fairly well established by now.

The question of light work is dealt with in the Bill. Up to now no person, judicial or otherwise, has been able to determine what is light work. Orders have been made from time to time about light work, but nobody has yet properly defined what light work is. If the Minister is able in this Bill to do anything that will help to clarify the position with regard to light work, he will be doing a good [1983] day's work for employers and workers alike. Up to now it has been a very elusive thing. To do something in the Bill for injured workers entirely dependent on the help of other people would also be a step in the right direction. I would ask the Minister to reconsider the position of people engaged in the large groups of industry that I mentioned: engineering, ship-building, house-building, dockers and all those engaged in the heavier industries. The compensation payable to all these people is going to be reduced under the Bill. As I said before, it is amongst those engaged in the groups I have mentioned that the majority of accidents occur. The great majority of people are going to lose substantially under the proposed legislation. In my opinion there will be no proper solution of this question of workmen's compensation until it is properly nationalised, and personally I see no very great difficulty in bringing that about. It is closely allied with State insurance and unemployment. If a man is sick he is entitled to unemployment benefit, and there should be, I think, some linking up of that with cases of injury due to accidents. If the three things could be amalgamated under the one stamp, it would be a very good thing for the working-classes in this country.

Mr. Duffy: Information on Michael Duffy  Zoom on Michael Duffy  There is one aspect of this Bill that I am not satisfied with, and that is the part that deals with casual labour employed by small farmers, road contractors and people of that type. I am acquainted with an incident that happened where the breadwinner of a family, employed by a small farmer who had a contract for repairing a few miles of road for the county council, and where this man lost his life in quarrying material, for this road, and left his wife and family absolutely unprovided for. Even though in that case the Bill will enable the next-of-kin of such a man to proceed against that small farmer-contractor it would be a case of selling him out and leaving his family [1984] unprovided for. I think that, in equity, if the law has provided for one class of worker it should provide for the other class of worker also and that they should have the same amount of benefit as well. Take the case of two brothers. One of these works for a big business corporation. That corporation is in a position to safeguard themselves by insuring their workers so that if that brother meets with an accident he and his family will secure compensation. But the other brother works, let us say for a small farmer with 15 or 20 acres, which means that in the case of his meeting with an accident there is no provision for it. I think that is a weakness in this Bill. What Senator Foran put forward is the only solution, and that is that all workers should be insured under some central State insurance scheme which would thereby provide the same benefit for one class of worker as another.

Mr. Lemass: Information on Seán F. Lemass  Zoom on Seán F. Lemass  The greater number of points raised have been, as I expected, more Committee points than matters for discussion at this stage of the Bill. No doubt we will have them all under consideration again when the Bill comes before us in Committee. To enable Senators, however, to consider their amendments carefully, I would like to indicate some general considerations applying to the points raised which Senators, perhaps, might bear in mind when considering their attitude. Therefore, in order to enable that to be done, I propose to take the points made by Senators in order. Senator Counihan referred to an agriculturist employing a person who contracted to do certain work on the land. He implied that that person so employed had no claim against the agriculturist if he became injured in the course of his work. That is not correct at all If any person, in the course of trade or business, contracts with any other person to do work, then, that person, or any one employed by that sub-contractor, is entitled to proceed against the principal who is named in the contract. The only exemption in such case is where a farmer engages a person to do work in which a machine [1985] driven by mechanical power is required, such as a threshing machine. If a farmer employed the owner of a threshing machine to do work on his land, any person injured during the course of that work has a claim against the owner of the machine, and not against the farmer. But if the person is employed on work in which mechanical power is not required then the farmer is liable for any claim for compensation.

I shall deal now with the point raised by Senator Duffy. If a local authority, in doing anything in the exercise of its powers and duties, is doing something which will be regarded as a trade or business for the purposes of the Act, and if that local authority contracts with anybody to do anything and a person employed by the sub-contractor is injured in the performance of his duty then the local authority is liable for any compensation arising out of the injury to the person employed by the sub-contractor. The person injured has the option of proceeding against the sub-contractor or the local authority. If the Senator reads Sections 19 and 9 I think he will find the case he referred to appears to be covered.

Mr. Duffy: Information on Michael Duffy  Zoom on Michael Duffy  Is it provided for in this Bill?

Mr. Lemass: Information on Seán F. Lemass  Zoom on Seán F. Lemass  No, but in parts of the existing law which are being re-enacted. If it can be shown that in any decided case—and I am not aware of it—in which the law has been differently interpreted I would be prepared to consider an amendment. But it seems to me quite clear that the sections that have been re-enacted of the original law give claims for compensation against the local authorities in the one case or against the farmer in the other.

Senator Comyn raised the old argument against bringing within the scope of the Bill casual labourers employed in the neighbourhood of the house or premises of the employer, that including them in the Bill will prevent such casual labourer from getting work. I do not believe it. I am quite certain that when Senator Milroy suggests that 90 per cent. of the people [1986] employed in that way are employed out of charity he is not talking with even the minimum amount of intelligence that he attributes to me. Although it may be true that occasionally casual workers get employed around the house without any other reason than that the employer wants to help an individual worker, still, in the majority of cases, such casual labourers are employed because they give value for their wage and because their employer wants the work done.

Mr. Counihan: Information on John Joseph Counihan  Zoom on John Joseph Counihan  Are they not protected by previous Acts?

Mr. Lemass: Information on Seán F. Lemass  Zoom on Seán F. Lemass  Not in respect of injuries suffered by the casual labourer employed around a man's house. The casual worker employed in respect of a trade or business was entitled to compensation, but, up to the present, the casual worker employed in connection with a private house or a club conducting games or recreation is not entitled to any claim for injury. The reply to the main argument of Senator Comyn and others is that the inclusion of the section of the Act of 1906 bringing in all casual workers employed in connection with trade or business did not prevent such people getting employment. It may be true that occasionally a man gets work out of sheer charity, and for the purpose of giving him something to do, but, in the vast majority of cases, people are employed on this casual labour because there is work to be done and such casual labourers will not be deprived of that work because of the passing of this Bill. If it could be argued that they would be deprived of work because of this Bill then the same argument could be used against the whole principle of workmen's compensation, on the ground that employers will not employ people, or will only employ a reduced number of people, because of the responsibility they incur. The real fact of the matter is that the householder who employs such casual labour can insure himself for about one shilling a year.

Mr. Douglas: Information on James Green Douglas  Zoom on James Green Douglas  A shilling a year!

Mr. Lemass: Information on Seán F. Lemass  Zoom on Seán F. Lemass  Well, 2/6 a year at the outside. The suggestion was made by Senator Bagwell and by Senator [1987] Comyn that there should be compulsory insurance. I think we must at once face the fact that any system of compulsory insurance must mean a system of State insurance. I challenge anybody to conceive any system of organisation which would enable a law requiring compulsory insurance to be imposed so that an administrative machine could take into record every action throughout the whole country where a man is employed even casually by every employer. If we are going to have compulsory insurance in the Bill, that is, a section which would require every employer to insure against his risks, then we must be certain that we shall be able to enforce that law. I do not think that we can devise any way in which to make such a section enforceable and if we were to introduce any such section into the Bill without being able to enforce it the effect would be that the whole law would come into contempt because of the fact that such a section could be evaded in a widespread manner. Even in a State system such as we have for sickness and unemployment insurance there is a very considerable amount of evasion and although we maintain a very large staff of inspectors throughout the whole of the Saorstát continually checking up on the records of individual business and private employers we have not been able to catch up on all the evasions which we know and which everybody knows are taking place. I will admit that I am considerably attracted by the idea of a sort of all-in insurance scheme, with one card and one stamp, which would combine in one system unemployment, national health insurance and workmen's compensation. It will not be easy to devise such a scheme. It will be even more difficult, having devised such a scheme, to frame it in such a manner as to avoid all the obvious loopholes that may give rise to fraud and evasion and it will be more difficult still actually to put it into operation. At any rate, I do not think we would have been well advised to delay the task of amending the Workmen's [1988] Compensation Act any further until some such system had been devised. Once one begins to consider a system of that kind, all kinds of possible extensions of it begin to arise in every direction. I think that such a scheme would have to be the subject of very careful consideration and prolonged examination before legislation could possibly be introduced.

Senator Comyn says that Section 43 goes too far. I should be glad to see his suggested amendment, but I would point out that it does not interfere with anything, and that it has been the law since 1906. A number of Senators spoke about one or other of the host of problems that arise when one comes to contemplate the cases of foreign employers or foreign workers or both, and accidents occurring within and without the jurisdiction of the Saorstát. It is, I think, quite clear that nothing that we could put into this Bill, or into the law of this State, will secure for a Saorstát employee compensation from a foreign employer who has got no assets here or compensation from an employer who had been engaged here, but who had left the country leaving no assets behind him. If we are going to get compensation for the employee under such conditions we can only do it following an international arrangement by which we can give the same right to a foreign worker in return for reciprocal treatment of our workers in other countries. The Bill gives us power to bring about such reciprocal arrangements. Particular reference was made in the Dáil, however, to the case of the Saorstát worker employed under a contract of service made in the Free State with a Free State employer, but injured while working for that employer outside the jurisdiction. The case of Northern Ireland was mentioned with particular reference to that. Bringing in the case of Northern Ireland confuses the whole issue because any amendment that could be considered in that connection could not be confined in its operation to Northern Ireland or Great Britain——

Mr. Brown: Information on Samuel Lombard Brown  Zoom on Samuel Lombard Brown  I agree.

Mr. Lemass: Information on Seán F. Lemass  Zoom on Seán F. Lemass  ——because under the existing law it is, if not quite certain, [1989] at any rate fairly clear that an employer could not be made liable to pay compensation twice for the same accident if it occurred in Great Britain or Northern Ireland, but if we were to amend the Bill in the manner suggested, it is by no means clear that he might not have to pay twice if the accident occurred in a country other than Northern Ireland or Great Britain. Even in the case of Great Britain the employee, under common law, might proceed against the employer. If he has a right of action against a third party, in common law he can proceed against his employer, but the employer is entitled to be indemnified by the third party. If the accident took place outside the jurisdiction it would not be impossible that the workman could get compensation from the employer here, and compensation under common law in Northern Ireland. I do not think that any of us contemplates that the man should be compensated twice. The position is so difficult to deal with by national legislation that, in making our decision, which we recommend to the Dáil, that these matters should be dealt with by international arrangement, we were supported by the International Labour Office Convention, which consisted of representatives from all countries, all of whom were experts in workmen's compensation legislation, and which, as Senators are aware, because it is mentioned in the Inter-Departmental Committee Report, recommended that precisely these matters should be the subject of international reciprocal agreement. The Inter-Departmental Committee itself recommended the same thing. Mr. Justice Hanna, who is recognised as an authority on this very matter, submitted his views to the Committee, and set out the things which should be dealt with by international convention, and he put first of all this particular problem of Free State employees meeting with accidents outside the jurisdiction. When speaking in the Dáil, I did not pretend that there was not a problem to be dealt with. There is a problem to be dealt with and a very important one, but I said that it could be dealt with [1990] more suitably by an international reciprocal agreement than by an amendment of the law of this State which would have effect within the jurisdiction of this State, and which would be dissimilar in this respect to the law of any other State. In every other similar case it is a matter for international agreement. I did promise in the Dáil to try to frame an amendment and get it introduced in this House, not precisely on the lines suggested by Senator Brown, but to provide that compensation would be payable here, where the contract of service was made here and where the worker was, at the time of the accident, engaged in connection with the employer's business here, but the accident took place outside the jurisdiction. As an example, we can take the case of a man employing a chauffeur driving from one part of the Free State, say, from Donegal, and passing through Northern Ireland. If the driver of the car meets with an accident on the journey, we want to give the employee the right to proceed against the employer, since he was engaged here and since all the assets of the employer are here. The employee in that case should have the right to proceed against his employer here, because in passing across Northern Ireland he was performing work in the interests of the employer whose business was in the Free State. Another case would be that of the man who takes a racehorse across to England—if the tariffs permitted—to take part in a race. He meets with an accident in Liverpool—perhaps the horse kicks him in the stomach. Again, his right to compensation should be enforceable in the Free State courts, because the contract was made here and the business and assets are here. I hope to get an amendment to deal with this type of case. On the more general type of case where an Irish Free State contractor undertakes to build a house or a bridge in Northern Ireland or in Great Britain, and brings in Free State workers and carpenters, that cannot be satisfactorily dealt with otherwise than by an international arrangement of the type which the International Labour Office [1991] Conference and the Inter-Departmental Committee have recommended. It has been said that there has been considerable delay in having such an international agreement. I can only agree. There has been delay, unjustifiable delay, in dealing with these matters. On the general question of the worker employed on a foreign ship, or employed by a non-national, without assets in the jurisdiction, we can do nothing without an agreement. We cannot deal with foreigners. We cannot create assets.

Mr. Foran: Information on Thomas Foran  Zoom on Thomas Foran  Cannot the ship be seized?

Mr. Lemass: Information on Seán F. Lemass  Zoom on Seán F. Lemass  Undoubtedly, when the ship is here it can be distrained to satisfy the decree of the court. An employee has a full legal right to proceed against an employer, but there is no effective means of getting the compensation if there are no assets. We cannot create assets by Act of Parliament. We can, by a reciprocal arrangement, give the employee the right to follow the employer where the assets are.

Mr. Foran: Information on Thomas Foran  Zoom on Thomas Foran  Can you not distrain on the ship?

Mr. Comyn: Information on Michael Comyn  Zoom on Michael Comyn  You cannot get at the ship until the case is decided.

Mr. Foran: Information on Thomas Foran  Zoom on Thomas Foran  The ship could be distrained until an agent is appointed to act for the owner.

Mr. Lemass: Information on Seán F. Lemass  Zoom on Seán F. Lemass  As the Bill stands there is a period of six months within which the employee can give notice of intention to proceed. It is not always the case that it is possible to give immediate notification of an accident, so that the ship should be distrained. It is not always the case that the nature of the injuries is known until some time after the accident.

Mr. Johnson: Information on Thomas Johnson  Zoom on Thomas Johnson  Would it be possible for the Minister to include some provision to ensure that foreign contractors engaged on jobs that are likely to cause an accident should be legally liable in this country?

Mr. Lemass: Information on Seán F. Lemass  Zoom on Seán F. Lemass  They are liable.

Mr. Johnson: Information on Thomas Johnson  Zoom on Thomas Johnson  I think it was suggested that there was no power to compel them.

[1992]Mr. Lemass: Information on Seán F. Lemass  Zoom on Seán F. Lemass  They are legally liable. There is power to compel them though there may be no assets on which to distrain to satisfy the decree of the court.

Mr. Johnson: Information on Thomas Johnson  Zoom on Thomas Johnson  In the giving of contracts there might be some provision inserted by which contractors should either put down a sum of money until the job was finished or insure.

Mr. Lemass: Information on Seán F. Lemass  Zoom on Seán F. Lemass  The ordinary practice is to insure. British contractors going to build a bridge in India or somewhere else insure, so as to provide the employees with the right to compensation which they would have got if the accident took place in Great Britain. Even in respect to Northern Ireland it has been the practice of the tariff insurance companies to provide for the ex gratia payment of compensation at the standard rates paid to their employees by Saorstát contractors injured while working in Northern Ireland. That has been done in practice, even though there is no legal requirement for it. The general question of the reduction of the maximum rates of payment in cases of total incapacity is one no doubt that we will have before us again. It is not fair merely to describe the change made in the Bill as a reduction in the maximum rate. As I pointed out, there is an altered method of calculation, which must be taken into account. In general, the consideration which, in our opinion, justified a reduction of the maximum rate was (1) the fact that since the maximum rate was fixed there has been a substantial reduction in the cost of living; (2) the scale of compensation which we propose to pay here is definitely higher than the scale at present prevailing in Northern Ireland or Great Britain, although these countries are much more highly developed industrially and, (3) so far as we have been able to discover, the scale of compensation we propose is as good, if not better, than that paid in any other country. I was not referring entirely to countries with a capitalistic form of government. In the case of Russia the payment to [1993] persons totally unfit for work is sixty-six and two-thirds of the pre-accident earnings, as against our seventy-five.

Mr. Johnson: Information on Thomas Johnson  Zoom on Thomas Johnson  Without limit.

Mr. Lemass: Information on Seán F. Lemass  Zoom on Seán F. Lemass  Without limit.

Mr. Johnson: Information on Thomas Johnson  Zoom on Thomas Johnson  Give us the 66? without limit.

Mr. Lemass: Information on Seán F. Lemass  Zoom on Seán F. Lemass  Subject to standardisation of salaries at the rate of £2 15s. per head I have no doubt we would get that. Senator Bagwell referred to Sections 15 and 16. The reason why the change is made in Section 15 is to secure that a workman becomes entitled to compensation:—

Notwithstanding the fact that such workman was at the time when such accident happened acting in contravention of any statutory or other regulation 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.

It has been found that employers were evading liability to pay compensation through a number of devices, including that of representing that the employee was acting contrary to instructions given him by his employer. The employer may have said: “Do not put your hand on that axe, or you will get it cut off.” If the employee got his hand cut off, the employer could then say that he was acting contrary to instructions. It is because there was such evasion that the change in the law was recommended by the Committee. That change was effected in Great Britain over ten years ago. I think it has not been the experience that any ill effects on employers followed. The employers' representatives on the Commission supported the change. So far as Section 16 (2) is concerned:—

An employer shall not be liable under this Act in respect of any injury to any workman which is proved to be attributable to the serious and wilful misconduct of such workman, unless such injury results in the death or the serious and permanent disablement of such workman.

[1994] That is not a change in the existing law which operated since 1906. Senator Milroy announced his intention of tabling an amendment to Section 24. I do not think the Senator quite grasped the effect of the section. A workman totally disabled gets the rate of payment provided in the Bill— the total disablement rate. If he recovers sufficiently to be able to undertake, not the work he was previously engaged upon, but a lighter class of work, and if he succeeds. in getting light work, the compensation he gets is 75 per cent. of the difference between what he was earning before the accident and what he earned after the accident. But, if he cannot get light work, and if he goes to the court and demonstrates that his inability to get it is due to the accident, and whatever physical disability results from it, the court, in its discretion may, if it thinks fit, say that the worker shall be entitled to be paid as if totally incapacitated. That is the position which this Bill contemplates in sub-section (1) of the section. The worker has been injured; he has recovered from the injury and is capable of getting light work; he has, however, satisfied the court that he is unable to get that light work due to the accident, and the court orders him to get full compensation instead of the partial compensation to which he is statutorily entitled. Such workman then makes a claim for unemployment insurance benefit and gets the benefit. The Bill provides that, in such case, he ceases to get the full compensation which the court had awarded to him, and he gets only the partial compensation to which he is ordinarily entitled. It has been argued that that is unjust to the worker. My answer to that was that in certain cases and, in fact, in the majority of cases, it might well work out that a worker getting his partial compensation, plus his unemployment insurance benefit, would be getting more than he had been earning before the accident occurred. That will not work out in all cases, but it works out certainly in the case of a worker who is earning 40/- a week and, remember, it does not matter what his post-accident earnings are—you can [1995] put those at any figure you like— because he cannot be getting benefit while he is earning and it is only when he ceases to earn that he gets benefit and consequently, gets only the partial incapacity rate. If he is only partially incapacitated, and if his benefit fails, if it becomes exhausted, if he becomes no longer entitled to get benefit, but nevertheless is unable to get work, he can go back to the court and again satisfy it that his inability to get work is due to his injuries, and the court can again order that he should get the full benefit.

Mr. Milroy: Information on Seán Milroy  Zoom on Seán Milroy  The Minister may recollect a passage in the Dáil debates— I think it was on Report Stage—in which he admitted that that would probably happen only once and that if he got light employment and then lost it, it finished his chance of going back for a further extension.

Mr. Lemass: Information on Seán F. Lemass  Zoom on Seán F. Lemass  The Senator will note, however, that we amended the Bill on Report Stage so as to ensure that he could go back but we did it also for another reason. We, in fact, changed the section and we did so because of the difficulty which Senator Foran referred to. He said that he did not think much of our description of “light work” or he asked if we had attempted to find a description for it. Every attempt up to the present to devise a satisfactory section to deal with that particular case has been a failure. A section was devised by the British Parliament in 1925 and was embodied in a British Act. It seemed, on the face of it, to provide everything that everybody wanted to provide but quite recently it was the subject of a House of Lords decision which completely nullified it. People did say that the House of Lords was wrong in its decision, but whether it was right or wrong in the legal interpretation of the phrase, there is no doubt that the decision completely reversed the intention of those who framed the section. Last year or late in 1931, the British Parliament again had a shot at it, and it had a shot after several trial attempts, at producing a section which would make it clear that [1996] where a worker's inability to get light work was due to his injuries, he should be given full compensation by the court instead of partial compensation without, at the same time, encouraging him to avoid getting work or on the other hand, making it possible for the courts to say that his inability to get work was due not to his injuries but to the state of the labour market.

Senator Foran said that we took a long time to produce the Bill. I do not think we did. You cannot produce a Bill of this nature, a Bill which requires very great care in its drafting because every word of it is likely at some stage to be the subject of an appeal to the Supreme Court, in a hurry and, having due regard to the necessity of careful phrasing, and to the fact that our predecessors took from 1926 until 1932 and then did not produce the Bill, the fact that the Bill has now been produced in our second year of office is to our credit.

Mr. Johnson: Information on Thomas Johnson  Zoom on Thomas Johnson  Did you not inherit anything from them?

Mr. Lemass: Information on Seán F. Lemass  Zoom on Seán F. Lemass  We inherited a white print which was, however, publicly repudiated by its authors. I was giving them credit for making the change when they refused to accept the credit. Senator Foran suggested that we are bringing black-coated workers in for the first time. That, I think, is not correct, if his interpretation of the phrase is the same as my own. I used that phrase to describe the clerical type of worker and the Bill, in any circumstances, applies only to those engaged by way of manual labour, even though we raised the limit of remuneration so far as the manual labour definition is concerned and, consequently, the deep design to benefit insurance companies which Senator Foran read into the particular section is not there.

Mr. Johnson: Information on Thomas Johnson  Zoom on Thomas Johnson  What about the man who sets type?

Mr. Lemass: Information on Seán F. Lemass  Zoom on Seán F. Lemass  We established a standard of pay for manual labour which the Labour Party will scarcely object to. There was a suggestion made by the Committee that we should pay additional compensation to persons [1997] requiring the constant help of another person. That was a recommendation of the International Labour Office Conference and we considered it with great care but I was unable to devise any satisfactory method which seemed to me to be fraud proof. I think that most of us know, and the Labour Party as well as everybody else, that there is as much, if not more, fraud in relation to workmen's compensation than there is in relation to many other enactments. Extraordinary ingenuity, in fact, has been shown from time to time in arranging these frauds. I dislike trying to put in a section of that kind because it seems to me that it would open the pathway to fraudulent claims very wide indeed and I thought it better that we should leave that matter stand over, at any rate, until we had some evidence of how it was working out in the one or two countries in which it has been put into operation. I certainly feel that I could not recommend the inclusion of a section of that kind having regard (1) to the considerable difficulties of phraseology which would ensure that benefit would be confined to those to whom we intended to give it and (2) to the probability that every person who is receiving workmen's compensation would be able to establish a good case for the assistance of a second person. If it would be possible to limit it to particular classes of incapacity, it might be possible to do it, but I do not think it can be done and I gave the matter considerable attention. However, as I have said, these are all matters which can be more fully and adequately discussed on Committee Stage. Any suggestions that Senators have to make may be debated then and again on Report. I am myself proposing to submit certain amendments which were discussed when the Bill was before the Dáil on Report in order to implement certain undertakings I gave then and on the strength of which other amendments were withdrawn.

Question put and agreed to.

Mr. Johnson: Information on Thomas Johnson  Zoom on Thomas Johnson  On the question of the Committee Stage, it involves putting in amendments by Saturday and I [1998] would ask that the Committee Stage be deferred further than Wednesday next. We ought to have the Minister's proposed amendments before we settle down even to attempt to draft our own. It might save us a lot of trouble if we knew what the Minister was going to propose, and I do not think any damage will be done by postponing it for another week.

Mr. Lemass: Information on Seán F. Lemass  Zoom on Seán F. Lemass  I have no objection. I have no desire to rush the Bill at all and it is not the type of Bill that should be rushed.

Cathaoirleach:  Senator Johnson's suggestion would bring us up practically to Christmas.

Mr. Johnson: Information on Thomas Johnson  Zoom on Thomas Johnson  I suggest then the first meeting after Christmas.

Cathaoirleach:  That would be better.

Mr. Comyn: Information on Michael Comyn  Zoom on Michael Comyn  I hope the Minister's amendments will be circulated before that.

Cathaoirleach:  That is for him to say.

Mr. Douglas: Information on James Green Douglas  Zoom on James Green Douglas  Have we any idea when that will be?

Cathaoirleach:  I have not the slightest idea.

Committee Stage ordered for the first meeting of the Seanad after Christmas.


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