Brendan Howlin (Wexford, Labour) | Oireachtas source

I am happy to deal with it. There were four substantial points made by Deputy Fleming and I will deal with those in sequence. We debated the regulation issue earlier. Deputy Fleming has tabled an amendment to it. I have before me as many pieces of paper as Deputy Fleming. I am trying to find the note on Deputy Fleming's amendment on the regulation. The Deputy proposes the insertion of a new section 58B(9) which would require the Minister to lay draft regulations made under Part 7A before each House of the Oireachtas. Either House would be able to annul the regulation by resolution. I accept that. On the strong advice of the Attorney General, I have reworded it in a way such that the Office of the Attorney General is satisfied, but I do not believe there is an issue with it. That is the way we should go.

The second point Deputy Fleming made relates to what I term the fail-safe measure. It is normal to put in a proviso so that even in the unlikely event of the Oireachtas annulling regulations, nothing purported to have been done up to that point is nullified. That is simply a fail-safe that is included. I assure Deputy Fleming that nothing will be done in advance of the regulations coming formally into effect. That is why I am delaying the implementation of the scheme until whenever that point is arrived at.

The Deputy referred to two more meaty issues. The first was the retrospection issue. Deputy Fleming is perfectly right. The word "retrospection" is not an appropriate word really, because one must have some snapshot or period to make an evaluation. It would be bizarre to decide to start now with a new scheme. That would work counter to what we want to do. We want to reduce expenditure but if we ignored what is happening now, that is, the four year envelope that is applied at the moment, and decided that we would start a new clock regardless of what a person's record was to date, then we would be pushing things back four years. In the first instance, that would not be fair to public sector workers who become sick from whatever date this legislation becomes operable. They would have a legitimate grievance in respect of their work colleagues who had been out of work, perhaps, for a protracted period, in the past two or three years. That is a reasonable point.

It is important to be clear about what is meant by the new scheme being applied retrospectively. The question of retrospection arises in respect of reviewing an individual's sick leave record over the past four years and then using that to determine access to paid sick leave under the new scheme. When an individual is absent on sick leave, two things are relevant. First is the number of days of sick leave in the past four years, that is, all the days of sick leave in the past four years added up. Second is the number of sick leave days in the past 12 months. The first decision made is whether an individual should have any access to paid sick leave. To do this, a person's sick leave record is examined in respect of the previous four years. This will determine whether he can have access to paid sick leave provided he has not exhausted the limits. Currently, the limit on pay during absence from work is 12 months but this will be reduced to six months for non-critical illnesses under the new scheme.

The second decision to be made is how much an individual can be paid. This is dependent on the sick leave record of the individual over the past 12 months. The individual's sick leave record is examined over the previous year to determine whether he can receive full or half pay or whether he should be considered for an award of temporary rehabilitation pay. This is the new phrase we are using relating to when a person is coming back to work. The look-back arrangement has always been in place in respect of the calculation of sick leave pay and will continue under the new scheme as set out in the Labour Court recommendation. There is nothing new in this. We have always taken a four year time envelope and it is appropriate that this is maintained. The notion that we are introducing a new element of retrospection is not right. We are simply changing the arrangements in future having regard to the work patterns and sick leave of the previous four years. When the new scheme is implemented, an individual's sick leave record will continue to be reviewed with regard to the previous four years where a person has taken sick leave previously. I hope that is clear enough in respect of the so-called retrospection issue. In fact, Deputy Fleming has made a compelling case in support of what I am suggesting and I have no issue with him in that regard.

Deputy Fleming went on to amplify the charge he made about gender proofing. The legislation is deliberately constructed in order that it is not gender specific. We treat all workers in the public sector equally. Deputy Fleming says it has a disproportionate effect and he has given the example of pregnancy related illnesses. We did not disaggregate pregnancy and certainly pregnancy is not regarded as an illness. However, there are complications that can arise in pregnancy that are gender specific. They can and will be captured in the work. This was a clear point made by the public sector unions. It is absolutely accepted by the employer, by me. I must be careful what I say because the Labour Court is seized of this matter at present but we hope the court will help us find an acceptable and reasonable approach to protect women when they are pregnant while maintaining the integrity of the scheme and, more especially, the critical illness protocol.

For clarity I emphasise that we are moving away from a single sick leave scheme to a reduced sick leave scheme but with a new critical illness protocol which will capture matters such as complications in pregnancy, acute bouts of mental health, cancer or illnesses that are critical and ongoing. We must define the conditionality in order that it is not an abused protocol that will undermine the basis of the fundamental sick leave arrangement.

All the fears that the public sector unions and the Deputies opposite have genuinely placed on the table are understood by the management side and they can be well captured. As part of the reasoning, I have put within the legislation and I will put within the regulation a 12 month review clause. We we will see how this works in 12 months. I will be happy to take any questions or debates about this 12 months on. Perhaps by 12 months we will not have enough information and we may have to wait for a second 12 months, but we will have a review automatically after 12 months of the operation of the new arrangements. Of course the public sector unions and their representatives will have input into that review. Is there any other point?

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