Dr. Laura Bambrick:

On behalf of ICTU, I thank members of the committee for their invitation to input in to the pre-legislative scrutiny of the general scheme of the sick leave Bill 2021, which provides for statutory sick pay. My colleague Mr. Liam Berney will join us later following his meeting with the Joint Committee on Social Protection, Community and Rural Development and the Islands, if time allows.

First, the congress wishes to acknowledge the work of Department officials and the collaborative approach taken throughout on the design of the new scheme, including by this committee. In the brief time available for my opening remarks, I will focus on key outstanding issues for ICTU and highlight differences between what is provided for in the draft Bill and what was indicated as intended in the general scheme of the Bill, which was published in June of this year.

Section 2 of the general scheme provides for the meaning to be ascribed to terms used in the body of the proposed Bill. Like all employment legislation, the scope of what is provided for extends only to those employed on a “contract of employment”. The definition of that term, for the purposes of this legislation, is taken from the Terms of Employment Information Act 1994. This is a narrow definition and confines the scope of the proposed Bill to those employed on conventional contracts of service. ICTU recommends a better and broader definition of a contract of employment, namely, those provided by the National Minimum Wage Act 2000 and the Payment of Wages Act 1991. Both definitions are much wider than the one now proposed. Paragraph (b) of both definitions extends to atypical forms of working arrangements and is more akin to the notion of a worker in European law and the definition of a worker in UK law.

Section 5(2) of the general scheme provides employees with an entitlement to up to three days of paid sick leave per year. While ICTU acknowledges that it is the clear intention of the scheme design that after 12 months, the three days will automatically move to five, then seven, and ten days in 2025, we are concerned that three days, not ten, will always be written into the legislation.

Section 5(5) provides that the service qualification for entitlement to statutory sick leave is 13 weeks’ continuous services. Head 6(2)(a) of the draft scheme provides that the entitlements created by the proposed Bill will commence when an employee has completed six months of continuous employment. Both cannot be right. The congress recommends that the qualification period be kept to a minimum so as not to stall labour market mobility or create a perverse incentive for employers to dismiss workers before they come into qualification.

We are further concerned that the proposed Bill provides that the service qualification be based on continuous service. Certain groups of workers routinely have their service broken by their employer. One example is the thousands of early years professionals working in early childhood care and education, ECCE, or preschool services on 38-week contracts, who are forced to sign onto social welfare during the summer. ICTU recommends that the wording be deleted or amended to ensure such workers do not have to build up their entitlement year after year and are repeatedly left without coverage for months on end.

Section 5(8) provides that all sick leave must be certified by a registered medical practitioner. While the requirement to have the sickness certified is common practice in statutory sick leave schemes throughout the EU, Ireland is unusual in that workers have to pay for primary healthcare. Very few people in employment are covered by a medical card or a GP visit card. The Healthy Ireland survey wave 5, commissioned by the Department of Health, shows that an estimated 14.6% of people, or one in seven, aged between 18 and 64 working for payment or profit - that is, employees and self-employed people - hold a medical card, while a mere 3.6% hold a GP visit card. In recognition that the out-of-pocket expense for a GP visit will create a barrier for workers exercising their new right to paid sick leave, the congress recommends that the final version of the Bill include provision for limited periods of self-certified sick leave. Self-certified sick leave typically costs about one tenth of the total cost of public service sick leave.

Section 7(2) merely provides that the daily rate of statutory sick leave, and the maximum daily amount payable, are to be prescribed in regulations to be made by the Minister. However, head 7(1) of the general scheme provides that the daily rate is to be 70% of the employee’s daily rate, subject to a maximum of €110 per day. This can be varied by the Minister by regulations made under the proposed Bill. We recommend that the legislation further require the Minister to consult with the social partners annually on the adequacy of the daily rate, income cap and income floor to ensure adequacy and its interaction with occupational sick pay schemes, and to report to the Oireachtas on the outcome of this consultation.

Section 9 of the draft Bill provides, in effect, that the obligations imposed on an employer are not applicable where the employer provides employees with a sick pay scheme which is more favourable than that prescribed by the Bill. Many contractual sick pay schemes provide for waiting days, typically meaning that no payment is made for the first three days of illness. ICTU recommends that, rather than excluding the application of the legislation completely where more favourable contractual schemes apply, obligations under the Bill would not apply in respect of any day on which the employee is entitled to be paid by his or her employer under the terms of a more favourable sick leave scheme.

Section 10 of the Bill provides for the granting by the Labour Court, of an exemption from the requirements of the Act. This is now a standard provision. Congress recommends that in such circumstance the employee is fully compensated from the Social Insurance Fund and a debt is raised against the employer in the same ways as when a payment is made under the redundancy and insolvency payment scheme with employers that are still trading.

Having convinced the Government of the necessity to introduce statutory sick pay, the priority for congress is now to ensure that the new scheme will protect workers' health and income and bring a basic employment right in line with European norms. It is this that informs our recommendations to the committee today. I thank members for their attention and am happy to take any questions.