Mary Lou McDonald (Dublin Central, Sinn Fein) | Oireachtas source

I believe the objective of making savings in this area is shared across the board. While I presume it remains the view among workers and unions that those savings could have been achieved by means of more active control of the current system, the binding Labour Court recommendation must be enforced. As I said earlier, I am concerned about the critical illness protocol. While I appreciate that pregnant workers are covered by other legal mechanisms and forms of legislation, any regulation dealing with this matter must acknowledge the circumstances, which are fortunately not common, in which such a worker may find herself needing long-term sick leave. That might not happen on a once-off basis. It is unfortunate that this matter was not fully ironed out before we were asked to consider this legislation. There will be an appearance in the Labour Court on 16 December next. Ideally, the regulations would be completed, the discussions between employers and workers would be concluded and agreement would be reached before we would be asked to pass this ground-breaking legislation. During today's debate, the Minister might put my mind, and more importantly, the minds of public servants, to rest on that issue.

I would like to speak about the issue of retrospection, which was raised earlier. I tabled some questions on this matter to the Department of Public Expenditure and Reform, which kindly supplied me with answers. I asked whether these regulations will include a provision to retrospectively apply the new certified sick leave arrangements. In its response, the Department recounted the necessity to give public service employees advance notice of the new scheme and make provision for a transitional period, etc., and informed me that access to the new reduced limits of sick leave is not being applied retrospectively. I thought that was fairly clearcut until I read the rest of the response. The Department went on to explain that individual sick leave records will remain unchanged following this legislation and will continue to be used to determine whether an individual has access to paid sick leave and at what rate. It pointed out that when an individual is absent from work due to sick leave, his or her record over the previous four-year rolling period will be examined to see if the sick leave limits have been exhausted. The Department claims that this is in line with the Labour Court recommendation.

When is retrospection not retrospective? Despite the initial line that I read out, this answer actually concedes that the new regime will be retrospective. For instance, when this new scheme is introduced if a worker has reason to take sick leave, his or her past record will be taken into account and weighed and measured. That person's entitlement to future sick leave will be on the basis not of the sick leave arrangement which existed two or three years ago when he or she took the leave but in line with the new mechanisms and standards set in place by this change.

I envisage that causing some difficulties. For many workers it has caused a degree of alarm. Public sector workers who are concerned about this matter have contacted my office and I am sure other Deputies' offices. The Minister has said from time to time on the record that the new sick-pay scheme would be retrospective. He has cited the Labour Court recommendation to support that position. I have in my hand recommendation LCR 20335 with the direction that the new scheme should take effect from 1 January 2014. I do not see in this recommendation that the instruction is to be applied retrospectively. The Minister will need to enlighten us on the matter because it is causing considerable concern for many workers who have contacted me.

I raised this issue when we debated the Financial Emergency Measures in the Public Interest Bill. I understand we need to cut our cloth according to our measure. That is a reality of our times and should, in fact, be a prevailing reality in good times or in bad. I accept that savings can and should be made from what is a very substantial sick leave bill. However, by introducing legislation such as this - I appreciate the advice the Minister received from the Attorney General - and conferring upon not just the present Minister but any future holder of that office the power and capacity to make regulations in respect of public servants' entitlement to sick leave, be it certified or uncertified, short-term or long-term, represents a very radical departure from the established practice.

I am concerned that that type of authority would rest in the hands of a Minister because we cannot predict the bias or world-view any future Minister might have. It establishes a trend for the Minister, Deputy Howlin, of moving away - incrementally but nonetheless measurably - from a system of established industrial relations and bargaining positions within the public sector to a much more centralised ministerially controlled and therefore management-weighted approach to the terms and conditions of public servants. He is obviously minded to do this.

In his earlier contribution the Minister cited the Attorney General's advice and stated: "Although the new sick leave arrangements could be applied in some sectors, such as the Civil Service, by administrative circulars, the Office of the Attorney General has advised that legislation is required to ensure that the new public service sick leave scheme can be applied across the public service". I strongly favour sticking to the established norms of bargaining between public sector workers and their employer - a very powerful employer as things stand. I am anxious and uncomfortable with those powers resting in the office of the Minister. I do not direct that personally at the Minister, Deputy Howlin, because, as he knows, he may come and go but these powers will endure.

I hope that this trend of last-minute introduction of fairly complicated and important issues in respect of legislation coming from the Department of Public Expenditure and Reform does not continue. On the watch of the Minister, Deputy Howlin, all of us had expected and continue to expect that during pre-legislative scrutiny and on Committee Stage room for consideration would be taken seriously so that we do not get bounced or rushed into dealing with very serious and substantive issues at the last minute. I do not believe that is the way to do business.

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