Richard Bruton (Dublin North Central, Fine Gael) | Oireachtas source

I move amendment No. 55:

In page 69, after line 19, to insert the following:

“Other amendments

87. (1) The Organisation of Working Time Act 1997 is amended—

(a) in section 19, by the insertion of the following subsection:

“(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.”,

and

(b) in section 20, by the substitution of the following paragraph for paragraph (c) of subsection (1):

“(c) to the leave being granted—

(i) within the leave year to which it relates,

(ii) with the consent of the employee, within the period of 6 months after the end of that leave year, or

(iii) where the employee—

(I) is, due to illness, unable to take all or any part of his or her annual leave during that leave year or the period specified in subparagraph (ii), and

(II) has provided a certificate of a registered medical practitioner in respect of that illness to his or her employer, within the period of 15 months after the end of that leave year.”.

(2) Section 23 of the Industrial Relations Act 1990 is amended, in paragraph (a) of subsection (3), by the deletion of “(other than established civil servants within the meaning of the Civil Service Regulation Act 1956)”.

(3) Section 2B (inserted by section 2 of the Financial Emergency Measures in the Public Interest Act 2013) of the Financial Emergency Measures in the Public Interest (No. 2) Act 2009 is repealed.”.

Amendment No. 55 provides for the amendment of section 19 of the Organisation of Working Time Act 1997 to provide that for the purposes of the entitlement to paid annual leave provided for in section 19(1), an employee who is absent from the workplace on certified sick leave will be deemed to have worked on a day of illness the hours he or she would have worked on that day, had it not been a day of illness.

This amendment implements the key principle established by the Court of Justice of the European Union, CJEU, in the Schultz-Hoff-Stringer line of cases that employees can accrue statutory annual leave while out of work due to illness. It also provides for the amendment of section 20 of the 1997 Act to provide that where an employee has been unable to take annual leave due to absence from work on sick leave, the timeframe for taking the annual leave accrued during a particular leave year shall be extended to a carry-over period of 15 months following the end of that leave year. The amendment also gives effect to, and is in line with, the main findings of the KHS case which was that the EU Working Time Directive permits national law to put a cap on the unlimited accumulation of paid annual leave during successive periods of absence on sick leave. I am satisfied that the 15 month carry-over period strikes the right balance between respecting the rights of vulnerable workers who absent from work due to a serious illness and trying to minimise the cost to business and the Exchequer.

This amendment also makes provision for subsection (2) of the New Section 87 in relation to section 23(3)(a) of the Industrial Relations Act 1990 by the deletion of "other than established civil servants within the meaning of the Civil Service Regulation Act, 1956". This amendment, subject to designation by the Minister for Public Expenditure and Reform, will provide access for established civil servants to the normal industrial relations machinery of the State, namely, the Labour Relations Commission and the Labour Court and the soon to be established workplace relations commission. Currently, civil servants, unlike the majority of workers in the State, avail of a conciliation and arbitration scheme. This is an enabling measure and any actual changes to procedures will only be undertaken in consultation with all stakeholders, including the relevant Civil Service unions and the LRC, Labour Court and workplace relations commission, as necessary.

Subsection (3) of the new section 87 provides for the deletion of section 2B of the Financial Emergency Measures in the Public Interest, FEMPI, Act 2009. Section 2B was inserted into the FEMPI Act by the Financial Emergency Measures in the Public Interest Act 2013 as a limited contingency measure in the event that no collective agreement was concluded with staff associations and trade unions following the negotiations leading up to the Haddington Road agreement. This section would have, should the need have arisen, allowed public service employers to take steps that would impact on non-core pay and working hours of staff in their organisations to effect savings. In the event, the public service unions and associations signed up to the Haddington Road agreement, which has produced a significant dividend to the public finances while, crucially, maintaining industrial peace. The removal of section 2B is in recognition that any requirement for this measure has now passed. All other provisions provided under the FEMPI Acts 2009 and 2013 remain in place and form a continuing necessary component of the fiscal consolidation programme to achieve the general government deficit target below 3% of GDP by 2015.

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