Peter Mathews (Dublin South, Independent)
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Recommittal is necessary in respect of amendment No. 1 and related amendments, as they relate to the instruction to committee motion.

Brendan Howlin (Wexford, Labour)
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I move amendment No. 1:

In page 3, line 11, after "SECTORS);" to insert the following:"TO PROVIDE FOR REGULATIONS CONCERNING SICK LEAVE IN THE PUBLIC SERVICE;".

Peter Mathews (Dublin South, Independent)
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I thank the Minister. That should have been my job. I am sorry for the hiatus, but the Minister filled it beautifully.

Brendan Howlin (Wexford, Labour)
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It is all the time I spent in the Chair. Forgive me.

These amendments relate to the insertion of a new Part 7A concerning sick leave remuneration into the principal Act, as we have discussed at some length. The amendment provides for the insertion of a new sentence into the Long Title to reflect that fact. As the Long Title suggests, the Bill amends the 2004 recruitment Act to provide for the redeployment of public servants. The amendments being tabled are beyond the scope of the current Long Title. As such, it is proposed to amend the Long Title to provide for regulations concerning sick leave in the public service.

As Deputies are aware, the rationale for the new scheme was the need to reduce the unsustainable cost of sick leave in the public service. This is to be achieved through a substantial reduction in the period of time for which sick leave will be available. I want to be clear that the reduction in paid sick leave under the new scheme will reflect exactly the binding recommendation of the Labour Court. Under that recommendation, special arrangements are being put in place through the development of a critical illnesses protocol under which staff with serious illnesses of specific severity might benefit from extended sick leave on an exceptional basis. I did not have much time to respond on this point previously, but we will deal with it in some detail during our toing and froing. We are moving away from a single sick leave arrangement to a sick leave arrangement and a critical illness protocol to cover many of the issues raised by the Deputies opposite, including mental health issues. This was understood in our discussions.

The new Part 7A empowers the Minister for Public Expenditure and Reform to make regulations providing for the payment of sick leave remuneration for public sector workers. The provisions in Part 7A will underpin the introduction of a new sick leave scheme, which was recommended by the Labour Court in 2012, across the public service. It is also a key deliverable in the Government's reform programme. The single sick leave arrangement will help mobility in the public service.

Amendment No. 16 seeks to insert the new Part 7A, comprising sections 58A to 58C, into the principal Act. The overall purpose of Part 7A is to make legislative provision for a sick leave scheme for the public service and to give the Minister for Public Expenditure and Reform the statutory authority to set out the scheme in detailed regulations, having regard to certain principles and policies. A new Part is being inserted to avoid confusion by distinguishing between the provisions that relate to sick leave remuneration, redeployment and the existing provisions in the principal Act that relate to recruitment and appointments. This new provision empowers the Minister to provide for a definition of "condition" in ministerial regulations to be made under this Part.

The term "condition" includes a condition which has been certified and prevents a public servant from attending to his or her duties due to illness or injury. The word "condition" does not refer to a medical condition, but is a condition that will get the public servant into the critical illness protocol. The inclusion of this definition means that the Minister can include in the regulations that in order to be allowed access to the levels of remuneration and the limit times in the paid sick leave scheme specified in those regulations, a medical practitioner must certify in writing that the public servant concerned is unable to attend to his or her duties due to illness or injury.

Rather than me reading out a great deal of information, it would probably be preferable if the Members asked their questions and I respond to them.

Seán Fleming (Laois-Offaly, Fianna Fail)
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I look forward to working our way through this hybrid of Committee Stage and Report Stage. I hope the Chair will bear with us as it is a little confusing. First, we have the Bill which has been passed by the Seanad. Then there are the proposed amendments to the Bill, and the green sheet of paper is what would normally be in front of us. Subsequently, however, we received the first additional list of amendments containing a substitute amendment, printed on white paper. I am obliged to move from the green sheet of paper for some amendments to the substitute list of amendments; I do not have a composite list of amendments.

Peter Mathews (Dublin South, Independent)
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We are in a multi-layer situation.

Seán Fleming (Laois-Offaly, Fianna Fail)
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I am trying to multi-task.

The substantive amendment on sick leave runs to approximately six pages and I had to go through that to find the single paragraph which is different in the Minister's substitute amendment from the Minister's amendment on the green list. It inserts a new subsection (9) which deals with making the regulations. I had tabled an amendment providing that these matters should be dealt with by regulation, and the Minister agrees with that principle. I am happy with that. I prefer that this be copper-fastened by way of secondary legislation than by way of circular, and the Minister and I agree on that. The inevitable consequence is that it will delay it by a couple of months, but it is better to have it on a sure footing in any event.

We are discussing four amendments. No. 1 relates to the Title, and I have no comment to make on that. Amendment No. 16 is the substantive amendment and we are also discussing amendments Nos. 2 and 3 to the substitute amendment, which are the amendments I tabled to call for this to be done by way of regulation. The Minister is doing that, so there is no need for me to say anything on my amendments in this group. I will return to the Minister's amendment.

The difference between what is contained in subsection (9) in amendment No. 16 and my amendment relating to the statutory instrument is in the final phrase, which the Minister might explain. He agrees that each regulation under the section should be laid before the Houses, and the subsection continues with the standard provision that the regulation will come into force unless there is a resolution of the Houses to annul it. If that were to happen, which would be unique, the provision continues "but without prejudice to the validity of anything previously done thereunder".

Brendan Howlin (Wexford, Labour)
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That is also standard.

Seán Fleming (Laois-Offaly, Fianna Fail)
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I presume that if the Minister had taken action and commenced some procedure on the basis of the presumption that the statutory instrument would not be annulled by the Houses and it happened to be annulled, this means that what was done will not be undone. I think that is what it means in English, so we will not argue about it. It is unlikely to happen anyway.

We come now to the substantive issue in the legislation before us, the amendment regarding sick leave. After the debate we had earlier the Minister will understand the arguments of different Members because we are essentially dealing with the same point. I might differ with other Members of the Opposition but I agree with the Minister on the need to curtail the sick leave bill and to bring it into line with what is the norm in Irish society. It should not be a standard thing for people to say, "I feel like doing a few sickies". That phrase should not be part of the Irish lexicon from now on. In addition, even though the Opposition should not necessarily look for trouble, I support cutting the six month period to three months for both full pay and half pay. The difficulty I have is with some of the details about it.

The retrospection is a big issue. I refer to it as retrospection, but many people would disagree with me on this. It is unusual for the House to pass a measure that has a retrospective effect. However, it is to do with the nature of the sick leave scheme. I have a copy of the circular issued last July to personnel officers containing a notification of the changes. It states: "Because we calculate sick leave on the basis of a 4 year rolling period (i.e. counting backwards from the latest day of absence) the changes being introduced from 1 January 2014 may result in staff being on half pay on their next sick absence if they have had more than 3 months absence on full pay in the previous 4 years." That introduces an element of retrospection. It counts back for the number of sick leave days.

Some people would say this House should not pass anything with retrospective effect. The essence of every legislative measure is that it is the law from when it is passed, but one cannot go back and change the law that previously existed. However, in effect, this measure has a retrospective impact. The Minister might be surprised to find that I agree with the principle that there must be some retrospective impact with this. Some would say there should not be, but there should be some look back. Otherwise, one would essentially be wiping everybody's previous sick leave record clean, with it starting again from next year under the new regulations. It would be four years before the four year rolling clock would catch up to reach the current position and it would be four years before the full potential savings could be achieved. Some Members will respond by saying "So be it", but we are in a difficult financial situation and there must be some recognition of the sick leave taken prior to the commencement of this new legislation. To ignore it would be unfair to the taxpayer and to the hundreds of thousands of people in employment in the private sector who do not have a similar four year rolling arrangement for the amount of paid sick leave they receive. The Minister might not like it but I can see the logic in him doing that.

I will now turn to my difficulties with the section as amended by this amendment. I do not think the Minister grasped what I meant - perhaps he was not listening carefully - when I said the legislation was not gender proofed. Of course, there is no phrase in the legislation singling out females for special treatment as opposed to males, or vice versa. There cannot be. Gender proofing means assessing the impact legislation will have on the genders. Without reference to gender in the legislation, the practical implementation of this legislation will have a greater and more disproportionate impact on women than on men. It is not written in the legislation but that will be the effect, as sure as night follows day.

Brendan Howlin (Wexford, Labour)
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Why?

Seán Fleming (Laois-Offaly, Fianna Fail)
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I will explain. The reason I raise this is the complicated cases I encounter in my constituency clinic, and I am speaking from personal experience of dealing with those cases. Where I believe this measure discriminates against women is at the jump from full pay after three months to half pay. The Minister has a mechanism in place for people who are going onto the rehabilitative arrangement whereby their payment does not go lower than the social welfare rate at that point. That is not the point at issue. I am also not referring to the pre-1995 people but to the people in the public service who are relatively young with young families and are paying and have been paying the full PRSI rate.

The Minister will say that no change, other than the reduction from six months to three months in respect of half pay, is being made. However, as a result of this change more people will be on half pay sooner than was previously the case, which means many more people will be impacted by it.

Reference is made in the legislation to linkages with the Social Welfare Acts. Up to 30,000 people in the public service are in the lower paid grades. The statistics indicate that there are more females than males in the lower pay grades in the public service and that there are many more females than males at clerical officer level in the Civil Service, HSE, local authorities and so on. As a result of the new arrangements, staff will now drop to half pay much sooner than heretofore. A female public sector worker earning €30,000 per annum who is the sole bread winner in a household, whose husband or partner has lost his job and has three children would be entitled in terms of illness benefit to the single person allowance of €188 per week, €124.80 in terms of the qualified adult allowance and €29.40 for each child, which amounts to €402 per week. However, when her salary of €30,000 is reduced by half she will have an income of only €15,000 per annum, which equates to only €300 per week. That family would be far better off on illness benefit. As per the circulars issued across the public sector, staff are obliged to sign a certificate instructing the Department of Social Protection to forward information in relation to illness payments to their employer and to fill out the required forms promptly after going on illness benefit. They do not have the option of having the cheque forwarded directly to them as they will have already signed up to an arrangement whereby it is sent to the employer. As I said, there are more women than men on low pay. While this measure was not designed to hit women the fact that more women than men are on low pay means women are more likely to be impacted by it.

I have had extensive discussions in recent days, including again this morning with officials in the Department of Social Protection, on the general theme of this measure, which is that nobody will be on lower pay than their social welfare entitlement, which I accept. The legislation does not deal specifically with the reduction to half pay after three months but to what happens at the end of the half pay period of entitlement. I presume there is a presumption in the legislation in this regard, even though I have not been able to locate it. Under the legislation, after three months on sick pay a person will be entitled to €188 per week in illness benefit. While it is valid to say that a single person is entitled under social welfare legislation to €188 per week in illness benefit, for social welfare payment purposes the household income of a person on illness benefit is taken into account but for employment purposes a person is classified as an individual. This means an individualised approach is being taken in terms of salary and a family approach is being taken in terms of social protection. While the intention is that a person's pay will not be lower than his or her basic social welfare entitlement, as I understand it, this is only the case in respect of the person but he or she may be entitled to claim for other people.

I discussed the following issue earlier with officials in the Department of Social Protection. The top-up payment for the qualified adult and child allowance for a person on illness benefit is means-tested. If the husband is in receipt of jobseeker's allowance he may be able to have the balance made up through his claim. However, if the husband, because he has lost is job is back in education, he may not be eligible for jobseeker's allowance and may also have no other entitlements because he is not available for work. The Minister will probably say that this has always been the case. However, more people will be affected a lot sooner because of this change. When the people on high incomes of €80,000 or €90,000 are reduced to half pay they will still be receiving payments well above illness benefit and social protection payments but the person on the salary of €30,000 will when reduced to half pay be receiving less than their social welfare entitlement. I accept it will be difficult to deal with this issue.

Brendan Howlin (Wexford, Labour)
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It is a social welfare issue.

Seán Fleming (Laois-Offaly, Fianna Fail)
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It will require employers to liaise with the Department of Social Protection in regard to each individual's entitlement. I accept that currently when a person goes onto half pay this is automatically calculated on a computer and that as no two situations will be the same, depending on the family situation, this will be difficult to deal with. However, as I stated earlier this measure will in terms of the statistics in regard to the number of people in the lower pay grades affect women more than men.

Another issue not addressed but by which women will be affected is pregnancy-related illness. I believe the current arrangements should be reconfigured to exempt pregnancy-related illness from this scheme, although I do not know if it is possible to do so at this stage. As the Minister is aware only females get pregnant. I know he will say that there is nothing in the legislation that discriminates against women but the practical implications of it, because only women can get pregnant, is that it will have an impact on women that it cannot possibly have on men. This is further evidence that this legislation was not gender proofed.

Some women have a couple of children. A woman who becomes pregnant and acquires a pregnancy related illness, who has been already previously absent from work with an illness, will because of the counting backwards aspect of the sick leave calculation aspect, be moved from full to half pay sooner than would otherwise be the case if she had not acquired the pregnancy related illness. I am not seeking an exemption for women in respect of non-pregnancy related illness. However, where an illness is defined by a consultant or doctor as a pregnancy related illness this illness should be exempted in the context of the reduction to half pay. The Minister might consider this matter when drawing up the regulations. It would be only fair that he do so. I do not propose to get into the politics of cuts in maternity leave and so on. The Minister should try to do something to address that issue.

As stated earlier, I am not happy that the Bill has had to be recommitted in respect of these amendments. The Minister has made a virtue of pre-legislative scrutiny. This aspect of the legislation is far more fundamental than what was provided for in the original legislation. In time, this aspect of the legislation is what people will rely on. Most public servants will get sick at some stage during their 40 year working career. This legislation will greatly impact on them. Issues such as redeployment will not necessarily affect many people during the course of their employment. As this is a bigger issue it would have been useful if it had been brought forward earlier in the year.

I know the Minister will say it is before the Labour Court and that negotiations are ongoing and so forth. I understand that and I made those points earlier in the day.

I read line by line the document the Minister has issued on critical illness. I am satisfied with all of it, by and large, bar the exclusion of mental illness. The Minister specifically referred to physical injury. I realise the Minister will say that it can come in under critical illness but the Minister has stipulated physical injury. People will ask why he has excluded the other category. Since the Minister went to the trouble of listing physical injury, he could have referred to mental illness. Some of the examples are given at the back and I follow the logic in all of those. They refer to people being out in various circumstances. Some of them are clear, for example, the case of someone who has schizophrenia. The Minister gave the example of how such a person would be entitled to be included under critical illness. Another situation might involve someone who perhaps had a difficult family situation on a once-off basis and for whom, perhaps, an early return to work might not be good, either for him or his colleagues. Perhaps he may need extra time. I am impressed generally with the document, except for the omission that I would have preferred to see included. The Minister will tell me it is covered in any event.

I may think of some more points during the debate. The Minister can see the way I am coming at it. If he cannot change a great deal today, perhaps he can when it comes to the regulations. When the Minister is publishing the regulations, will he send the committee members a copy? I realise they will be laid before the Oireachtas but we get so many e-mails that we could easily miss them. Will the Minister make a point of sending the document to the committee secretariat in order that we can see a copy and read it? The Minister might consider the matter of pregnancy related illness when he is making the regulations.

Peter Mathews (Dublin South, Independent)
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Deputy McDonald is next.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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It may be better if we deal with those points first and then I can come back in later.

Brendan Howlin (Wexford, Labour)
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I am happy to do that.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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We are dealing with this in committee.

Peter Mathews (Dublin South, Independent)
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I will accommodate your wishes.

Brendan Howlin (Wexford, Labour)
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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?

Seán Fleming (Laois-Offaly, Fianna Fail)
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I asked about social welfare payments.

Brendan Howlin (Wexford, Labour)
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Deputy Fleming made the point about the juxtaposition of reduced formal payment and the interaction it has with social welfare payments, especially for people of low pay when they get to a half-pay rate and the impact that has on the family income generally.

It primarily is a matter for social welfare provision because what is being done here does not alter the current position. The difficulty the Deputy has addressed regarding a diminution in pay could arise right now.

As for the general principle, in their submission to the Labour Court, the public service unions proposed there should be a floor on temporary rehabilitation pay. In other words, there would be a minimum payment that is not less than the personal social protection rate of €188 per week. The Labour Court accepted the unions' proposals in this regard and endorsed the position that a minimum payment equal to social welfare protection rates for those who joined the service before 1995 is reasonable and should be accepted by the management. Therefore, while there are implementation issues to be worked out, the principle outlined in the aforementioned Labour Court recommendation is clear and will be implemented. That is the position for pre-1995 people. In the case of the post-1995 Civil Service, class A contributors have an entitlement to claim illness benefit that is not means tested. Normally, the individual receives his or her sick leave payment from his or her employer and then the public service body recoups the illness benefit payment from the Department of Social Protection. This is the way it normally works. My point is the new arrangement that is being put in place simply mirrors the old arrangements. While it may be worth my having a chat with the Minister for Social Protection on these matters, as the Deputy rightly stated it would be extraordinarily complicated to implement, through a payroll system, a sort of means testing of income within a household between social welfare and reduced formal pay. I believe it would make impossible the practical application of the scheme. However, this may be something that can be caught through the social welfare system, which carries out means testing where people have not paid a class A contribution.

Seán Fleming (Laois-Offaly, Fianna Fail)
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I will make a few points just to conclude this line of approach. As a highly practical person, I will make two real and practical suggestions that I ask the Minister and the Department to take on board. On the issue of pregnancy-related illness, a system is in place at present whereby a person who is on half pay and has a pregnancy-related illness will not drop to a rehabilitative rate. There is a simple way to deal with this issue, that is, to have the same provision for a person on full pay, whereby she will not drop to half pay specifically during the period of a pregnancy-related illness. At present, there is full pay, half pay and the rehabilitative rate and there is already in place a system whereby one will not drop-----

Brendan Howlin (Wexford, Labour)
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There is a floor.

Seán Fleming (Laois-Offaly, Fianna Fail)
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No, the Minister should bear with me. At present, my understanding is that in the case of a person on half pay who is ill during pregnancy, whose illness is related to the pregnancy and who, under the current regime, exhausts her full 12 months, there is an arrangement in place whereby she will not drop below that rate during her pregnancy. I believe the arrangement is that-----

Brendan Howlin (Wexford, Labour)
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One cannot go below half pay.

Seán Fleming (Laois-Offaly, Fianna Fail)
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Exactly. In other words, a person who is on half pay during her pregnancy and the clock runs out on her, she will not drop below that. The cost of doing this would not be all that much, that is, someone who commences her pregnancy-related illness on full pay should not be dropped to the half-pay rate during that particular specific illness. It might be for only two or three months or a similarly short period. In other words, there already is a mechanism for someone who already is on half pay not to drop off the system and my suggestion is such people should not be dropped from the higher step to the intermediate step during this period. This is a practical suggestion to which the Minister might give consideration.

I have a second practical suggestion for the Minister to simplify matters for the employer before the statutory instrument is made. Illness benefit is based on one's contributions and is not means tested. Therefore, the amount is fixed at €188 per week if one is entitled to it. However, the qualified adult allowance is means tested, as is the qualified child allowance. I accept it is beyond the remit of the employer to know the personal circumstances of each family. My simple suggestion pertains to a person who is on half pay, who happened to be on €30,000 but whose pay dropped to €15,000 and who now gets €300 per week. If the cheque from Department of Social Protection comes in at a higher figure, simply give back the balance to that person. I simply suggest a profit should not be made by the Department or the employer through getting more in illness benefit from the Department of Social Protection than it actually is paying out to the person on half pay. If the cheque rolls in and it is for €100 more than the Department is paying out, top it back up in order that the person gets the benefit. This is the principle that already underlines the other arrangements, whereby the Minister stated people will drop to and not below their personal rate. In other words, there is a figure there and the Department has no calculations to make. When the Department of Social Protection has done its bit and has started to send in a higher cheque, an employer that discerns it is higher should simply refund the balance. It would be somewhat perverse for an employer to be making a profit, that is, getting more from the Department of Social Protection during a person's illness than it actually was paying out to the person on sick pay. I believe the Minister can understand this proposal. The Minister might be able to put forward a formula in this regard because I do not believe for a second it is his intention that his Department should make a profit on someone being out sick through getting more from social protection than it pays out in sick pay. I believe all Members are in agreement in this regard. The Minister should attempt to find a simple way to do this, which would take the employer out of the operation.

I have one final comment, to which the Minister may have responded earlier. In his contribution this morning, the Minister stated: "It is important to note that in overall terms, the new scheme will provide access to some form of income for public service employees who find themselves out of work due to illness or injury for a period of two years in total." Is that figure of two years the current figure or is it the new, reduced figure? What will happen at the end of the two years? Will the chief medical officer tell the person concerned to collect his or her cheque and go? The Minister should outline what will happen at the end of the two year period and I ask him to consider my two suggestions on pregnancy-related illness and for employers not to make a profit out of the illness benefit paid.

Brendan Howlin (Wexford, Labour)
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On the first point made by the Deputy with regard to pregnancy-related illness, I will consider it in the context of the regulations. It depends on what emerges from the discussions regarding the Labour Court because that is the net issue at which they are looking. However, the Deputy makes a good case and I will consider it in the context of the regulations. Members can have a discussion about it when that happens. I refer to the other point made by the Deputy on ensuring that if a social welfare entitlement happens to be bigger than the reduced rate of pay, the sick person should get the benefit of the balance. I understood this already happens now. This is the reason I was checking but my own understanding is this already happens and it is rebated automatically.

Seán Fleming (Laois-Offaly, Fianna Fail)
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Okay.

Brendan Howlin (Wexford, Labour)
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However, I will check because that is a reasonable point. The Deputy's final question was on what happens when one has exhausted one's three months and one goes onto temporary rehabilitation pay, that is, what does it mean and how will that be calculated. If standard sick leave limits or the critical illness provisions or both are exhausted and there is a realistic prospect that the individual will be able to return to work, as I stated already, he or she will then go on to temporary rehabilitation pay for the further period during the total period over which support is paid, up to two years. This two-year limit is designed to mirror the two year period over which illness benefit currently is paid by the Department of Social Protection. Temporary rehabilitation pay, as the Deputy is aware, used to be called the pension rate of pay and will be calculated and awarded in the same way. It is based on the pension that an individual would be paid, were he or she to retire at that particular point in time. There are issues on the length of time of the payment of the temporary rehabilitation pay that the public service unions are raising in the context of the final phase of deliberations before the Labour Court on 16 December and that the matter should be clarified then.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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I note Members are on Committee Stage for amendment No. 1. Obviously, the Minister was obliged to change the Title because when the legislation was originally considered, it did not envisage legislating in this way for sick leave in the public service.

As the Minister says, it is enabling legislation.

To deal with amendment No. 16, I refer to section 58B(4) which in my view is instructive. It states: "In making regulations under the subsection the Minister shall have regard to...". Front loaded at the beginning is the need to limit the circumstances in which public service bodies can undertake the commitment of financial resources in making payments in cases in which they are unable to receive the benefit of the services of their public servants. That is reasonable, in my view. It refers to the resources available. Subsection 58B(4)(c) cites the obligations of the State under the treaty of stability, co-ordination and governance under economic and monetary union, while subsection 58B(4)(d) refers to the specification of conditions for an entitlement to be paid remuneration during a period of sick leave and the desirability of having in place a satisfactory means of verifying that the public servant concerned is ill, etc. - in other words, not pulling a sickie when one is not sick. It is only in subsection 58B(4)(e) that there is mention of the need to protect the health of public servants. Whatever about the decision to order it in that way, an employer has obligations under health and safety law, as do employees themselves for their own well-being, and I am certainly not advocating a situation where people abuse a system of sick leave, be it certified or uncertified. I understand the scale of the current Bill and I am convinced not just by arguments made by the Minister, but also by arguments from the workers' side that savings need to and can be made. I do not have an argument with the Minister on that point. I ask the Minister to give the House the most recent figures for the number of public servants on what would be termed long-term sick leave as this information could provide a sense of the scale of this situation.

I said this earlier and I promise I will not repeat it again after this. I do not like the idea of the Minister having possession of this kind of enabling legislation. I reiterate this is not personal to the Minister. In my view, it may be a step too far. Subsection 58B(4) instructs any would-be Minister or the current Minister of what he or she needs to have regard to. It is ordered in that way with the health of public servants almost as the last item in that section and this worries me even more.

I refer to the issue raised by Deputy Fleming about the social welfare payment. I draw the attention of the Minister to a point on which I ask for clarification. It comes from the Labour Court recommendation which refers to rehabilitation pay and a minimum payment equal to social protection rates for those who joined the public service before 1995. I ask the Minister to explain and clarify what this will mean for the regulations.

The point made about gender-proofing of this legislation can be made equally about most, if not all, legislation. I do not believe there is due regard for the impact on gender of many other measures. The Minister made, on the face of it, a reasonable remark that the legislation and the regulations would not discriminate between male and female workers. That is fair enough. However, that is easily got around by the simple reference to "pregnant workers". One of the sexes has the capacity to become pregnant and as of yet, bar scientific advancements, the other does not. There has to be the very specific reference to pregnant workers in this or any other legislation and certainly in the regulations. If the regulations did not take account of that, they would run against the existing legislation protecting pregnant workers but it would also be an obvious deficiency in any legislation.

I come now to the clincher. This Bill proposes cutting the amount of time to which workers are entitled to sick leave. I remind the Minister that pregnancy is not a sickness, but I refer to the example of a case of the baby blues, as the condition is called. It is not uncommon for workers who have been pregnant to have depression. Where in this specific instance is the worker situated with regard to sick leave? There is the issue of how the modest period of uncertified sick leave and certified sick leave is accommodated within the definition of critical illness. However, if the condition persists above and beyond the two years, which, sadly, can be the case, where does that leave that worker? The Minister is in charge and it is legitimate for him to ensure that provisions are not being abused. However, it would be a very bad turn if this scheme resulted in people whose illness was extended beyond the scope of what is envisaged by the Minister and who found themselves with no job to return to or who were forced out of their job. The nuance needs to be considered. It would have been preferable to have this discussion having had sight of the various regulations because much of what is speculation I presume would be resolved and set out for us.

The Minister referred to retrospection as being a look-back, which is a nice turn of phrase. He said, "We are changing the scheme going forward but then having a look back at the past". It does not really matter whether it is called retrospection or if another term is used. The fact is that leave which workers have legitimately taken under the existing regime will now be calculated under the regulation and the norms of a new trimmed down set of limits. I am not suggesting this would cause significant difficulty in many cases but I can see circumstances where it will cause a problem for the simple fact that the Minister is reducing the period of time and leave to which people are entitled.

I have spoken to the Minister many times on the issue of retrospection, generally about excessive pay and pension pots at the top of the tree.

The Minister has used arguments around property rights, contractual obligations, advice from the Attorney General and so on to state he could not tackle many of those pressing issues. It seems that on this matter the Attorney General takes a different view. She does not seem to be so hung-up on people's legitimate expectations or their contractual arrangement with the employer. In this instance it seems that can be set aside but there is precedent for that because that was also the case in respect of the financial emergency measures in the public interest legislation. I note that contradiction for the Minister. The Minister might respond to those points starting with the figures available to him because I would like to get a picture of long-term illness.

Brendan Howlin (Wexford, Labour)
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The Deputy has raised a number of issues, which I will try to deal with sequentially as I did with Deputy Fleming.

I do not have numbers. I have a table with costings on a sectoral basis which I will provide to the Deputy. The last full year for which sick leave statistics have been gathered is 2012. I have before me a table which sets out the reporting of sick leave or absenteeism over that year. I will give the Deputy the cost in millions of euro in each sector.

For the Civil Service the figure is €5.3 million for the self-certified. The certified figure is €47.7 making a total of €53 million. The percentage of days lost as a total of the total Civil Service is 4.6%.

In Defence, the self-certified figure is €1.1 million. It is an interesting point that Defence has a much lower level of absenteeism.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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Will the Minister give me that figure again?

Brendan Howlin (Wexford, Labour)
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The figure for Defence is €1.1 million; the certified leave figure is €7.8 million. The total cost in the Defence sector is €8.9 million. The total percentage of days lost in the defence sector is 2.65%.

In the education sector, self-certified sick leave for teachers is €6.4 million. The figure for certified illness is €54.9 million, making a total of €61.3 million. The percentage of days lost was 3.4%.

The self-certified figure for special needs assistants, SNAs, is €1.1 million. The certified figure is €6.4 million, making a total cost of €7.5 million. The SNA percentage days lost figure is 4%.

The self-certified cost for health is €26 million; the certified cost is €197 million, making a total cost of €223 million. The percentage of days lost was 4.79%.

In the local government sector, the self-certified figure is €5.8 million; the certified figure is €42.1 million. The total leave lost last year in the local government sector cost €47.9 million. The percentage of days lost is 4.4%.

On the final area of justice, for the Garda the self-certified figure is not applicable. The certified figure cost in the Garda is €27 million, therefore, that was the total cost. The percentage of days lost for the Garda was 7.4%. Interestingly, the self-certified figure for Garda civilians was €0.2 million, that is, €200,000. The certified cost was €2.7 million. The total cost of Garda civilians was €2.9 million, and the total percentage of days lost for Garda civilians was 0.4%, less than half of 1%. I will provide that table to the Deputy.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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Can I pass a remark on that?

Brendan Howlin (Wexford, Labour)
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Yes.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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What jumps out is the figure for health. If it is possible it would be very useful to have numbers beside it-----

Brendan Howlin (Wexford, Labour)
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Yes.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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-----because it is only then that one can get the sense of what is a concern of everybody, not least the Minister as the employer, namely, whether there is a repeated pattern or if that is widespread. I would have a view on the Health Service Executive and its management capacities so it would be very informative for us to try to establish that pattern. I would appreciate it if the Minister can get those figures.

Brendan Howlin (Wexford, Labour)
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Rather than just give the Deputy the figures for health I will see if I can disaggregate them better and get those to her.

The next point in the series of points made by Deputy McDonald was on her dislike of the provision of enabling legislation of this sort. I accept her comments that there is nothing personal involved in that. I believe it is a more democratic way of doing it in that we are bringing legislation to be debated here, circumscribing the power of the Minister and debating the power of the Minister as opposed to what happens now where it is done normally by circular that we do not see. I remember when I was teaching one would get circular 1 of a particular year, circular 2 and circular 3 changing terms and conditions and God knows what not by circular. This is a more democratic way of doing it. If we have a formal legislative authority determined by Parliament and a formal statutory instrument laid before Parliament containing a review clause that is a better, more open way of doing it but that would be a matter of viewpoint.

I do not want to repeat the point I made in reply to Deputy Fleming on the pre-1995 and post-1995 people other than to reiterate that regarding the pre-1995 people, we have accepted the Labour Court recommendation that the minimum position equal to social protection rates for those who joined the public service before 1995 is reasonable and is to be accepted. That will be reflected in the decision. The post-1995 people, as the Deputy is aware, are paying a Class A contribution so they are entitled to claim illness benefit. In the normal circumstances the way it works is that the employer receives that and pays the half pay. The point made by Deputy Fleming was about a situation where the social welfare recoupment was greater than the half pay of somebody on a low wage. My understanding is that the balance is rebated but I will check that for the Deputy.

I hear the points made by the Deputy about pregnancy related illness. They have been forcibly made by the unions. I did not want to prescribe pregnancy related illness as a stand alone issue but it is one of the issues to be determined by the Labour Court. I will be as flexible as I can and I will have regard to what the Deputy has to say when we are drafting the regulations.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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On that point, I presume the Minister will satisfy himself that in terms of the regulation, the critical illness protocol and the regulation when it comes forward that it is in line with health and safety responsibilities and so on.

Brendan Howlin (Wexford, Labour)
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And all the fairly exhaustive legislative protection that is in place to support-----

Mary Lou McDonald (Dublin Central, Sinn Fein)
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Pregnant women.

Brendan Howlin (Wexford, Labour)
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-----women in pregnancy. As I said, it is my intention that the current position of the public service that we are progressive and model employers will continue in regard to that.

The fundamental question asked by the Deputy is in terms of what happens after two years when one loses a point. One has had three months on full pay, three months on half pay and the related pay floor determined for the balance. The idea, and that is the reason we are renaming that payment, is for it to be an encouragement back to work. I said in the opening remarks, and I know it can sound a bit odd, and this is the advice I have from the medical practitioners, that the notion that the objective is to get people back to work is supportive of recovery. The system is designed to get people back to work, not to categorise them as permanently ill. We want to provide the supporting mechanisms, rehabilitation and so on to get people back to work. The norm would be that after two years one might determine one is not returning to work because the illness is such that one is not capable of that work and one might want to find work elsewhere, in which case one might retire.

If one can return to work under a different set of circumstances, that would be facilitated also. That is part of the supporting regime we have put into the public service under human resource management. In terms of the specifics of time - I gave the answer to Deputy Fleming already - this is something we have not yet finalised with the Labour Court and it will be subject to the recommendation it will make on 16 December.

Mary Lou McDonald (Dublin Central, Sinn Fein)
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I cited the example of post-natal depression, so we would not be talking in generalities. It would not be unheard of for a woman to require more than two years to reach a position where she was ready to go back to work and take up her duties and tasks or other duties and tasks. I like this notion of rehabilitation and back to work. That is absolutely sound. The last thing one wants to do is to keep people in the category of "sick", psychologically for them and in terms of the work organisation. However, if the circumstances are exceptional and it takes that bit longer for people to get themselves fit and ready to take up their duties, that should be provided for. I do not think we should say two years and sín é - one is either fit to come back to work or not - in particular when dealing with illnesses which relate to people's mental health. As we have spoken a lot about pregnant workers, I have cited post-natal depression. It has taken people I know longer than that time to feel fully well and fully ready to go back to work but they were perfectly capable of assuming their duties again. I raise that again with the Minister.

Brendan Howlin (Wexford, Labour)
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It is something I will reflect on in regard to the regulations. We cannot have a situation where somebody can be sick forever and on half pay or on rehabilitation pay. The idea is that we would come to make some discernment in regard to it. I do not think that is the issue about which the Deputy is talking. She referred to an example where it might not be 24 months but 30 months or a while longer. Let me reflect on that and have regard to what emerges from the final discussions in the Labour Court on 16 December.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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I have made general points around this issue in the previous debate but following on from the more specific aspects of this amendment, the figures the Minister gave were very revealing and confirm the argument I made to him earlier on this issue. The area where there is the highest level of absence through sickness is in the health service. That is no surprise. The percentage is higher, the numbers are higher and the cost is higher because the Government has butchered the health service. It is obvious.

I spoke to a local authority worker before I came into the House about a study of ordinary bank workers - not the people at the top - I think in Bank of Ireland which reported that two thirds of sickness of among workers in banks has to do with stress. Why is that? Is it because bank workers are inherently more subject to stress? Not at all. It is because ordinary bank workers have been at the sharp end of the anger and indignation people feel about what has happened to this country. Of course, it was politicians and people at the top who were actually responsible but the ordinary bank workers feel the stress and must deal with it. If we broke down the Minister's figures on the health service, we would find exactly the same thing that the stress is induced by having to work longer hours, harder, with fewer resources, with more demands and more desperate people. I do not know if the Minister still does clinics but I am more stressed going into my clinic now than I was a year ago because there are more desperate people around.

Brendan Howlin (Wexford, Labour)
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The Deputy comes in here to share his stress.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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I do. That is exactly the point of being here.

Brendan Howlin (Wexford, Labour)
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The Deputy is very successful.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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That is what we are supposed to do, that is, be conduits for the experiences of people outside the House and to bring those experiences into it and, if I might say, to puncture the bubble that sometimes exists around this House, so that the real human reality of how policy decisions made in here play out in real lives is brought back in here. Surely that is the point of democracy. I would not belittle it.

Those figures deserve to be broken down even more to find out what are the illnesses that are leading to higher levels of absenteeism in the health service, higher levels among special needs assistants than in education generally, which speaks for itself, and higher levels among front-line gardaí than among those who are civilians, which again speaks for itself. The people at the front line having to deal with the consequence of the economic crisis and the impact of austerity on the ordinary members of the public, with whom they must engage, are more likely to be sick and the figures the Minister gave bear that out. I would not like to be at the housing desk in a local authority at the moment because the situation is desperate. These people are dealing with an impossible situation. How soul destroying must it be to be in the housing department of a local authority with people coming in day after day, more and more desperate because they are longer and longer on the housing list and are living in more deplorable conditions? What does that do to somebody's mental health? It crushes it. That is the reality and that is why people are getting sick.

Even though sicknesses are being induced by circumstances beyond the control of workers, we are going to put in arbitrary dates and say that after a certain point, people's entitlement to full sick pay will be cut. That leads on to the point Deputy McDonald made. One may not be able to go back to work after two years. What used to be six months is now three months. These are arbitrary dates. If the Minister is saying he wants to take into consideration people's illnesses, then he would not have those arbitrary dates. He would look at what is making people sick and at their illnesses and would look at it on a case-by-case basis, as this Government so often does in other matters. Let us actually look at what is making people sick and at their illnesses.

I accept the Minister does not want people to be out sick forever and to be labelled as sick. I suspect the vast majority of people who are on sick leave would rather get back to work, so let us assist them in doing so. That is the sort of reform we need but this is arbitrary and will undoubtedly hurt people.

I refer to defining critical illness and the area of mental illness, which relates to the point about stress. Let us not yet again make mental illness the poor relation of sickness and not really take it seriously when, in fact, it can be extraordinarily debilitating. Let us not say it is not really critical. I am fascinated and worried by how the Minister will define "critical". There are lots of grey areas but will every person who has cancer and is getting cancer treatment be assumed, as a matter of course, to be critical?

I would certainly hope that will be the case. It would be nice if the Minister said it was because we could be confident about one category, at least. However, I fear it may not be.

Brendan Howlin (Wexford, Labour)
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I went through them in the Deputy's absence.

Richard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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Fair enough. I will study the Minister's answers to these questions. As Deputy McDonald has said, illnesses like mental health conditions and depression arising from pregnancy have to be considered carefully. The same problem that applies to medical card discretion and probity could potentially apply in this area. I find it problematic that an onus is being put on people to prove how sick they are when they are at their most vulnerable. This has to be re-examined. There is evidence that in the case of medical cards, the default position has been to refuse people and force them to beg and cajole their way through an amazing amount of hoops to prove they are sick. They have to participate in the appeals process when they are sick and least need the extra hassle and burden. I am against the whole thing. The figures given by the Minister reveal the reality of why people are getting sick in the public sector. If he intends to go ahead with this proposal, fairness needs to apply in a couple of specific areas. I will listen to Minister's answer. I have to go to a meeting, so I apologise for not being present for everything he will have to say.

Brendan Howlin (Wexford, Labour)
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The Deputy makes a fair point about stress. I do not want to be flippant about it. Stress is a real issue for many public representatives. I assure the House that I have never had a more challenging job than the position I have held for the last two and a half years. That is true of whole sectors of the public service. People in my Department and in every front-line delivery system were under stress because our country was in a crisis as it tried to recover from the deterioration in its economic conditions. It was almost like a war. I do not intend to play that down. Absenteeism and sickness are not new phenomena. It would be interesting and instructive to look back at the figures for previous years. There were significant levels of absenteeism and illness in some sectors at the height of the wealth of the boom, when previous Ministers were saying the country was awash with money. It is important that we get better at managing our sick leave arrangements in a proactive manner. There is a responsibility on us to do that in a way that is reflective of the Labour Court recommendations. I would like to inform Deputy Boyd Barrett - this point was also referred to by Deputy Fleming - that I have circulated the critical illness protocol document, which sets out the criteria that will apply to determinations with regard to suitable recipients of critical illness payments. If Deputy Boyd Barrett has not had an opportunity to read that document, perhaps he might contact me so that I can ensure a copy finds its way to him.

Michael Kitt (Galway East, Fianna Fail)
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As amendments Nos. 2 to 5, inclusive, amendments Nos. 8 to 11, inclusive, and amendments Nos. 18 to 20, inclusive, are related, they may be discussed together by agreement.

Brendan Howlin (Wexford, Labour)
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I move amendment No. 2:

In page 3, to delete lines 23 to 32, to delete page 4 and in page 5, to delete lines 1 to 7 and substitute the following:"(b) by substituting the following for the definition of "public service body":

" 'public service body' means, other than for the purposes of Parts 6A and 7A—

(a) the Civil Service,

(b) the Garda Síochána,

(c) a local authority within the meaning of the Local Government Act 2001,

(d) the Health Service Executive,

(e) an education and training board, and

(f) such other body or bodies as may be prescribed by the Minister by order under section 6 in accordance with that section,

and reference to 'public service' shall be read accordingly;",".

Seán Fleming (Laois-Offaly, Fianna Fail)
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I would like to pick up on the Minister's final point. I hope someone in the Office of the Parliamentary Counsel is listening. I think it is bad practice to bury definitions at the end of Bills.

Brendan Howlin (Wexford, Labour)
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The Deputy has made that point before.

Seán Fleming (Laois-Offaly, Fianna Fail)
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I ask the officials in the Office of the Parliamentary Counsel to ensure all the definitions are set out at the beginning of each Bill. That will ensure a person who is looking at a Bill can see how the subject of the Bill is defined. It should be easy to specify in the opening section of a Bill the definitions that are of relevance to the various sections of that Bill. Such an approach would be better than the approach that is currently taken. In the case of a large Bill, it is impossible to find the definition one is looking for. It is a lazy old practice. It probably takes a little more organisation to put the definitions in an earlier section. I ask the Office of the Parliamentary Counsel to do that.

We have no problem with the Minister's amendment No. 2. Amendment No. 3, in my name, proposes that the title "vocational education committee" be changed to "education and training board". I am sure the Minister agrees with that.

Brendan Howlin (Wexford, Labour)
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That is done already.

Seán Fleming (Laois-Offaly, Fianna Fail)
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The next amendment does the exact same thing in another section of the Bill. Amendment No. 5, in my name, seeks to require the Minister to "publish a list of such bodies referred to in paragraphs (a)(vi) and (b)(vi)".

Brendan Howlin (Wexford, Labour)
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They are all done.

Seán Fleming (Laois-Offaly, Fianna Fail)
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Perhaps that might be done "within 30 days of the enactment of this Act" or within some other reasonable period.

Brendan Howlin (Wexford, Labour)
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I will go through all of these amendments after the Deputy has spoken on them.

Seán Fleming (Laois-Offaly, Fianna Fail)
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If the Minister does not get a chance to put those details on the record, perhaps he might send them to us. It would be useful for Deputies on this side of the House to have the list. I am not sure what is on it. I have no issue with any of those amendments.

I will let the Minister speak on amendments Nos. 8 to 11, inclusive, which are in his name and move on to amendments Nos. 18 to 20, inclusive, which relate to one of the last main issues we have to cover. Schedule 3 lists the bodies to which the definition of a "public service body", as it relates to Part 6A, will not apply. These bodies will be excluded from everything we are talking about here today. It seems to me that the list substantially comprises commercial-----

Brendan Howlin (Wexford, Labour)
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I advise the Deputy that we are back on Report Stage.

Seán Fleming (Laois-Offaly, Fianna Fail)
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Can the Leas-Cheann Comhairle advise me in this regard?

Michael Kitt (Galway East, Fianna Fail)
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The Deputy will have two minutes when he speaks for a second time.

Seán Fleming (Laois-Offaly, Fianna Fail)
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We were in Committee Stage a moment ago.

Michael Kitt (Galway East, Fianna Fail)
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We were, yes.

Seán Fleming (Laois-Offaly, Fianna Fail)
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We are now in Report Stage.

Michael Kitt (Galway East, Fianna Fail)
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That is right.

Brendan Howlin (Wexford, Labour)
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I wanted to check that point and advise the Deputy accordingly.

Seán Fleming (Laois-Offaly, Fianna Fail)
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I thank the Minister. I will say what I have to say now. The earlier amendments in this grouping are not a big issue. I will speak about the later amendments. This is an unusual one. Maybe the Chair can help me in this regard. We are now on Report Stage. I have spoken on some of my amendments in this group. Has the Minister spoken on every one of his amendments?

Brendan Howlin (Wexford, Labour)
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Yes.

Seán Fleming (Laois-Offaly, Fianna Fail)
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He has. That is fine.

Michael Kitt (Galway East, Fianna Fail)
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The Minister will have the final reply as well.

Seán Fleming (Laois-Offaly, Fianna Fail)
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Okay. I will return to the issue I am raising in amendments Nos. 19 and 20.

Brendan Howlin (Wexford, Labour)
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Yes.

Seán Fleming (Laois-Offaly, Fianna Fail)
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It seems to me that Schedule 3 excludes the commercial semi-State bodies from everything we are talking about here today. I thought that part of the reason for these redeployment, recruitment and appointment moves is to open the possibility of staff moving between these bodies and the rest of the public service. Perhaps that is not the case. If it is the case, we should be including them in this measure. I am proposing that all of these semi-State bodies should be included in this legislation. There is a case to be made to include companies like Bord na gCon, EirGrid, Horse Racing Ireland, the National Stud Company, the Railway Procurement Agency and the VHI - I will not go through them all - in this sick pay legislation.

I would like to ask the Minister a question in this context. Perhaps he will not be able to answer it. There are different rates of sick pay.

Will they continue with the six months and six months? We will probably find that some of the commercial semi-State organisations are operating the three months and the three months. The problem is that we just do not know what they have. We had this before when pay cuts were introduced under the Financial Emergency Measures in the Public Interest Acts. We all know of people who might work in the Department of Agriculture, Food and Marine, the local authority or the HSE, and the guy next door might work in CIE or Bord na Móna. They all generally regard themselves as public service workers in a similar category. However, when it came to some matters under the Financial Emergency Measures in the Public Interest Acts they were in different categories. We are again going down the road of changing the pay for 290,000 public servants - I do not know how many are involved in the commercial semi-State organisations. It is important to establish what the sick-pay arrangements are in each of these commercial semi-State organisations and other such bodies.

I believe they should be included under the scope of this legislation because the same general sick-pay principles we have been discussing in the past few hours should apply as equally as possible across all of these. There may be specific cases such as teachers who might come in in September or members of the Defence Forces who might have a slightly different regulation. However, it would be better for everybody concerned to have similar arrangements. There is no point in us doing all that and some of these commercial semi-State companies, such as the ESB and An Post, having a much more generous level of sick leave. They need to be considered in the same context as the other areas the Minister mentioned, such as the Civil Service, defence, education, health, local government and justice.

Regardless of whether the semi-State bodies are included in the scheme, Irish Water should be on the list given that it has been established and is operational. It is even more bizarre now than it was when I tabled the amendment because I now understand that Irish Water will have its service level agreements with the local authorities for the next few years to be reviewed subsequently and then they can run on until 2025. Essentially the delivery of water services will be run by a semi-State body that collects levies, but the work on the ground will be done by local authority workers with a service level agreement. It is incongruous to have different sick-pay arrangements between people who are essentially working for the same organisation. The local authority workers who will be working on the pipes will have one arrangement, whereas the people in the Irish Water head office may have an entirely different sick-pay and sick-leave arrangement, and not the three months and three months we are introducing now. Irish Water is either one project or it is not; the purpose was to centralise it. It would be bizarre if we ended up with local authority workers doing work for Irish Water coming under the local authority sick-pay scheme, whereas those working for a commercial-State organisation would not be included in the same scheme. I do not even know what that scheme is. I am essentially looking for consistency across the board.

Michael Kitt (Galway East, Fianna Fail)
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I call the Minister, who has two minutes.

Brendan Howlin (Wexford, Labour)
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I apologise to the House. My officials have just been notified that on the costings I provided to Deputies, the costs are fine but the percentage days lost need to be redone. I have asked my officials to redo that and we will send copies immediately to Deputy Sean Fleming. I will also send it to the Deputies who were in the House earlier and are absent now. I wall also send it to the Ceann Comhairle's office to ensure the record of the House accurately reflects that. I apologise for that.

Amendments Nos. 3 and 4 are in the name of Deputy Fleming. The tabled amendments to section 2 take account of the proposed insertion of Part 7A of the Bill. The intention of the Deputy is already addressed in the text of these amendments. I have taken account of the fact that since the Bill was considered by the Seanad, the VECs have been abolished and replaced by the education and training boards. Consequently we have already incorporated these changes in the text now before the House. Those amendments are already addressed and I thank the Deputy for pointing that out - we were able to do that in the Seanad.

Amendment No. 5 would require me to publish two lists within 30 days of enactment of the Bill. The amendment is not necessary in either case. The first list, which is referred to in line 1 of page 4 is of "such other body or bodies as may be prescribed by the Minister by order under section 6 in accordance with that section". Such orders are statutory instruments and must be laid before the Houses and published in accordance with the Statutory Instruments Act 1947. I confirm that SI 551/2007 was made under this section to extend the remit of the Commission for Public Service Appointments to appointments being made by the Health Information and Quality Authority. No other orders have been made under this section.

The second list to which the Deputy refers at lines 15 to 38 of page 4 relates to bodies "in respect of which a pre-existing public service pension scheme exists or applies or may be made, or in respect of which the Single Public Service Pension Scheme is applicable". This list has already been published. In December 2012, in exercise of powers conferred on me by section 8(1)(b) of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012, I signed a statutory instrument, SI 581/2012, in accordance with the terms of the Statutory Instruments Act 1947. It sets out the details of the Ministers of the Government, public service bodies and bodies corporate that are prescribed as relevant authorities for the purposes of the public service pensions scheme.

Michael Kitt (Galway East, Fianna Fail)
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I thank the Minister. As we are on Report Stage, I must stop the Minister. Deputy Fleming has two minutes if he wishes to make a contribution. The Minister will have an opportunity for a final reply.

Brendan Howlin (Wexford, Labour)
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I will resume with the rest when I come back in.

Seán Fleming (Laois-Offaly, Fianna Fail)
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I have taken a note of SI 581/2012. I have said what I want to say about consistency in the semi-State bodies and Irish Water. I ask the Minister to address that.

Brendan Howlin (Wexford, Labour)
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My amendment No. 8 seeks to reposition the definition of "public service body" that applies in respect of the redeployment of Part 6A by moving it from section 2 to Part 6A of the Bill. I have already referenced that.

Amendment No. 9 is a technical amendment necessitated by amendment No. 8 and involves renumbering the section beginning with "recognised trade".

Amendment No. 10 is another technical amendment necessitated by amendment No. 8 involving the renumbering of the section beginning with "redeployment day".

Amendment No. 11 is another technical amendment necessitated by amendment No. 8 involving the renumbering of the section beginning with "a reference".

Amendment No. 18 seeks to extend the application of Schedule 3, the list of commercial semi-State bodies, to Part 6A, concerning redeployment, and Part 7A, concerning sick-leave remuneration. If accepted Schedule 3 would exclude commercial semi-State bodies and their subsidiaries from the definition of "public service body" in Parts 6A and 7A. We have had a long debate about why semi-State bodies should be treated thus. As they have their own financial regulation and operate in a commercial environment, they should not be subject to either redeployment or the sick-leave arrangements in this Bill.

The principal Act and this amending legislation both exclude the commercial State bodies from their remit. We debated this on Committee Stage. In amendment No. 19, Deputy Fleming seeks to apply the terms of the Bill to the semi-State bodies, whereas I say they should be excluded. We have had a long debate about that and I do not believe we need to go through it again.

Amendment No. 20 relates to Irish Water. Irish Water is being established as a subsidiary of Bord Gáis Éireann, which is already captured under the provision at No. 23 in the Schedule.

I know the Deputy wants to put it in to take it out, to identify it, to have it captured. It is in as an exempted body for the reason that it is a semi-State body.

Michael Kitt (Galway East, Fianna Fail)
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Amendments Nos. 6 and 7 are related and will be discussed together.

Brendan Howlin (Wexford, Labour)
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I move amendment No. 6:

In page 5, to delete lines 22 and 23 and substitute the following:

3.—Section 7 of the Principal Act is amended—(a) in subsection (2) by deleting paragraph (a), and

(b) by substituting the following for subsection (4):

“(4) Nothing in this section shall be read as affecting—

(a) the application of section 34(1)(i) to appointments to which this section applies, or

(b) the operation of Part 7A.”.

These amendments are designed to ensure that neither redeployment by the Public Appointment Service to unestablished excluded positions in the Civil Service nor the applicability of the new sick leave scheme require the separate sanction of the Commissioner for Public Appointments.

Brendan Howlin (Wexford, Labour)
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I move amendment No. 7:

In page 5, to delete lines 24 and 25 and substitute the following:4.—Section 8 of the Principal Act is amended—

(a) in subsection (2) by substituting “for the purposes of any provisions of this Act other than Parts 6A and 7A*,” for “for the purposes of this Act,”, and

(b) in subsection (8) by substituting “for the purposes of any provisions of this Act other than Parts 6A and 7A*” for “for the purposes of this Act”.”.

Brendan Howlin (Wexford, Labour)
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I move amendment No. 8:

In page 6, between lines 8 and 9, to insert the following:“(c) ‘public service body’ means—

(i) the Civil Service,

(ii) that category of persons referred to in section 30(g) of the Defence Act 1954, namely civilians employed thereunder by the Minister for Defence,

(iii) a local authority within the meaning of the Local Government Act 2001,

(iv) the Health Service Executive,

(v) an education and training board,

(vi) any other body (other than a body referred to in Schedule 3 (inserted by the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013)) established—

(I) by or under an enactment (other than the Companies Acts), or

(II) under the Companies Acts in pursuance of powers conferred by or under another enactment, and financed wholly or partly by means of money provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government,

in respect of which a pre-existing public service pension scheme exists or applies or may be made, or in respect of which the Single Public Service Pension Scheme is applicable,

(vii) any other body (other than a body referred to in Schedule 3) that is wholly or partly funded directly or indirectly out of monies provided by the Oireachtas or from the Central Fund or the growing produce of that Fund and in respect of which a pre-existing public service pension scheme exists or applies or may be made, or in respect of which the Single Public Service Pension Scheme is applicable,

(viii) any subsidiary of, or company controlled (within the meaning given by section 10 of the Taxes Consolidation Act 1997) by, a body to which subparagraph (iii), (iv), or (vi) relates and in respect of which a pre-existing public service pension scheme exists or applies or may be made, or in respect of which the Single Public Service Pension Scheme is applicable,

and reference to ‘public service’ shall be read accordingly;”.”.

Brendan Howlin (Wexford, Labour)
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I move amendment No. 9:

In page 6, line 9, to delete “(c) ‘recognised trade’ ” and substitute “(d) ‘recognised trade’ ”.

Brendan Howlin (Wexford, Labour)
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I move amendment No. 10:

In page 6, in line 17 to delete “(d) ‘redeployment day’ ” and substitute “(e) ‘redeployment day’ ”.

Brendan Howlin (Wexford, Labour)
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I move amendment No. 11:

In page 6, line 19 to delete “(e) a reference” and substitute the “(f) a reference”.

Seán Fleming (Laois-Offaly, Fianna Fail)
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I move amendment No. 12:

In page 6, between lines 48 and 49, to insert the following:“(2) Any employee who is subject to compulsory redeployment, following the expiration of the Haddington Road Agreement, shall have a right of appeal of such redeployment to a designated officer of the Public Appointments Commission.”.

Brendan Howlin (Wexford, Labour)
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I advised during the Committee Stage debate when we had a long discussion about this that the Bill will not provide power to the PAS in any circumstances to establish a system under which employees may be compulsorily moved. The Bill is designed to facilitate definitive voluntary cross-sectoral moves. It will not and cannot in itself force such reassignments. If cross-sectoral moves are agreed with specific individuals in the future, including outside the terms of specific collective agreements or post-Haddington Road the Bill will also facilitate those providing they are not in conflict with the Minister's overall policy on redeployment and mobility.

I agree that if people are unhappy with the proposal to move to another employment it is important that they are able to appeal that. I do not agree that it is necessary or appropriate to have a statutory appeal power. The Croke Park agreement, as I explained to the Deputy on Committee Stage, provides an appeal system in respect of individuals being redeployed within health, education and local authority sectors and such an appeal system has been in operation satisfactorily for the duration of that agreement. The Haddington Road agreement extends this by providing that appeals on cross-sectoral redeployment and redeployments within the Civil Service will be considered by an agreed adjudicator.

Seán Fleming (Laois-Offaly, Fianna Fail)
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I move amendment No. 13:

In page 7, between lines 11 and 12, to insert the following:“(5) The Minister shall, within 6 months of the enactment of this Act, bring forward a report on the feasibility of the Public Appointments Commission establishing a process whereby employees who wish to voluntarily transfer to a new role within the public service may be matched up with another employee who is willing to transfer in the opposite direction.”.

With the shared services in a local authority one might find a local authority that requires extra staff because it has a major project under shared services and people might like to get back to a particular region or whatever. It is up to each person to chase the organisations individually. It would be useful if there was a networked noticeboard available on which people could put their names on a swap or transfer list. There might be three people: A wanting to move to B, B to C and C back to A. It would help staff movement. I do not think there would be a major cost involved. Will the Minister give me his thoughts on that?

Brendan Howlin (Wexford, Labour)
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We did discuss this matter on Committee Stage. I indicated then that I believe that the Irish public service has a reasonably well developed initiative to promote staff mobility and I gave some examples of that on Committee Stage. I accept that there is scope to introduce a more integrated mobility policy. We have agreed with the unions under the Croke Park agreement that we need to move towards an increasingly integrated public service in any event and to achieve that, the public service will need to be reorganised and public sector bodies and individual public servants will have to have more flexibility. Our terms and conditions in respect of sick leave, pay, annual leave and so on will have to be regularised so that they are more uniform. These points are very well made. Consideration is being given to the opportunities to strengthen mobility within the Civil Service as part of the programme of reforms under way. I will introduce a new reform package early in the new year and I will have regard to the mobility issue in crafting that.

Brendan Howlin (Wexford, Labour)
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I move amendment No. 14:

In page 9, line 28, to delete “that” and substitute “the pay”.

Brendan Howlin (Wexford, Labour)
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I move amendment No. 15:

In page 10, lines 5 to 9, to delete all words from and including “(inserted” in line 5 down to and including “1977)” in line 9 and substitute the following:

“(amended by section 11 of the Ministerial, Parliamentary and Judicial Offices and Oireachtas Members (Miscellaneous Provisions) Act 2001)”.

Michael Kitt (Galway East, Fianna Fail)
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Recommital is required in respect of amendment No. 16, which is in substitution for amendment No. 16 on the principle list of amendments dated 9 December 2013. It has already been discussed with amendment No. 1.

Brendan Howlin (Wexford, Labour)
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I move amendment No. 16:

In page 11, between lines 37 and 38, to insert the following:

“Insertion of Part 7A in Principal Act.

7.—The Principal Act is amended by inserting the following Part after Part 7:

“PART 7A

SICK LEAVE REMUNERATION

58A.—(1) In this Part—

‘condition’ includes, if the Minister so determines and makes (whether in respect of the whole of a period claimed to be sick leave or portion of such a period) provision in that behalf in the regulations concerned, a condition that a medical practitioner of a class specified in the regulations certify in writing that the public servant concerned is unable to attend to his or her duties due to illness or injury;

‘public service body’ means—

(a) the Civil Service,

(b) that category of persons referred to in section 30(g) of the Defence Act 1954, namely civilians employed thereunder by the Minister for Defence,

(c) the Garda Síochána,

(d) a local authority within the meaning of the Local Government Act 2001,

(e) the Health Service Executive,

(f) an education and training board,

(g) to the extent not otherwise provided by this definition, any other body (other than a body referred to in Schedule 3 (inserted by the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013)) established—

(i) by or under an enactment (other than the Companies Acts), or

(ii) under the Companies Acts in pursuance of powers conferred by or under another enactment, and financed wholly or partly by means of money provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government,

in respect of which a pre-existing public service pension scheme exists or applies or may be made, or in respect of which the Single Public Service Pension Scheme is applicable,

(h) any other body (other than a body referred to in Schedule 3) that is wholly or partly funded directly or indirectly out of monies provided by the Oireachtas or from the Central Fund or the growing produce of that Fund and in respect of which a pre-existing public service pension scheme exists or applies or may be made, or in respect of which the Single Public Service Pension Scheme is applicable,

(i) any subsidiary of, or company controlled (within the meaning given by section 10 of the Taxes Consolidation Act 1997) by, a body to which paragraph(d), (e) or (g) relates and in respect of which a pre-existing public service pension scheme exists or applies or may be made;

‘public servant’ means—

(a) an employee or officer of, or the holder of a position in, a public service body,

(b) to the extent not otherwise provided by this definition, a person holding a position the appointment to which is made by the Government,

(c) an officer of the Houses of the Oireachtas,

(d) the Ombudsman, or

(e) the Comptroller and Auditor General;

‘relevant person’ means a public servant falling within a class of public servants specified in the regulations concerned;

‘sick leave’ means a case in which a public servant is unable to attend to his or her duties due to illness or injury.

58B.—(1) Without prejudice to subsection (5) and subject to subsections (2) and (7), the Minister may make regulations providing for the payment of remuneration, in circumstances specified in the regulations and subject to such conditions as are specified therein, to a relevant person during a period of sick leave on his or her part, and that remuneration shall be (as the Minister determines and specifies in the regulations)—

(a) the whole amount of the remuneration that would otherwise accrue to the person,

(b) a percentage specified in the regulations of the whole amount referred to in paragraph (a), or

(c) in respect of an initial number of hours, days or weeks of sick leave on the part of that person occurring, in a given period, the whole amount referred to in paragraph (a) and then, in respect of a number of hours, days or weeks of sick leave on that person’s part (whether they are a continuation of the initial occurrence of sick leave in that period or are a separate occurrence of such leave in that period) a percentage specified in the regulations of that whole amount.

(2) Regulations under subsection (1) shall contain a provision that no remuneration shall be paid in respect of any part of a number of hours, days or weeks of sick leave (on the relevant person’s part) that exceeds a number, specified in the regulations, of hours, days or weeks of sick leave (on that person’s part) that may occur in a given period.

(3) Each of the references in subsection (1)(c) to a number of hours, days or weeks, and each reference in subsections (1) and (2) to a given period, is a reference to a number of hours, days or weeks or, as the case may be, a period that the Minister determines and specifies in the regulations for the purpose of the particular provision concerned.

(4) In making regulations under subsection (1), the Minister shall have regard to—

(a) the need to limit the circumstances in which the public service bodies can undertake the commitment of financial resources in making payments in cases in which they are unable to receive the benefit of the services of their public servants,

(b) the resources available, for the time being, to the Exchequer to pay the remuneration of public servants,

(c) without prejudice to paragraph (b), the obligations of the State under the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union done at Brussels on 2 March 2012,

(d) with respect to the specification of conditions for an entitlement to be paid remuneration during a period of sick leave, the desirability of having in place a satisfactory means of verifying that the public servant concerned is unable to attend to his or her duties due to illness or injury, and

(e) the need to protect the health of public servants,

whilst taking account of the desirability of there being a measure of provision, as appears to the Minister to be appropriate and just, for making payments to public servants who are unable to attend to their duties due to illness or injury.

(5) Regulations under subsection (1) may provide in exceptional cases (that is to say cases defined in the regulations by reference to the serious nature of an illness or injury that has occasioned a relevant person’s being on sick leave (which may extend, if the Minister considers appropriate, to the circumstances involving a period of the person’s rehabilitation following an illness or injury of that nature)) and notwithstanding the provision otherwise made by the regulations, for all or any of the following:

(a) that there may be paid to the person remuneration, in respect of the time of his or her sick leave, for a period longer than would otherwise be the case under the regulations;

(b) that there may be paid to the person remuneration, in respect of a particular period of the time of his or her sick leave, of an amount that is greater than the percentage (of the whole amount referred to in subsection (1)(a)) specified in the regulations under subsection (1)(b) or (c);

(c) that the provisions of the regulations shall operate subject to such other modifications as the Minister determines and specifies in the regulations, which may include provision—

(i) limiting the total period in respect of which, in a foregoing case, remuneration may be paid to a relevant person, or

(ii) conferring a power on a person specified in the regulations to determine, in a foregoing case, that after the lapse of a particular period of the time of a relevant person’s sick leave, no further remuneration shall be paid in respect thereof.

(6) Regulations under this section—

(a) may contain such incidental, supplementary or consequential provisions as the Minister considers appropriate, including provisions delegating to the public service body concerned the determination of any matter in respect of which the regulations provide that a determination shall be made, in particular a determination—

(i) as to whether an illness or injury is of a serious nature,

(ii) as to what is an appropriate period of rehabilitation in the circumstances concerned, and

(iii) as to what is satisfactory certification, in writing, by a medical practitioner of any relevant matter; and

(b) may—

(i) if the regulations apply in respect of more than one class of public servant, make different provision for the different classes of public servant to which the regulations apply, and

(ii) otherwise make different provision for different classes of case.

(7) Where, before the commencement of section 7 of the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013, a period of sick leave, on a relevant person’s part, has begun and continues after the commencement of that section, the arrangements that were in existence before the commencement of that section in respect of the payment of remuneration to that person during his or her sick leave shall continue to apply in respect of so much of that period of sick leave as falls after that commencement and regulations under this section shall not apply to that person until such time as he or she is able again to attend to his or her duties.

(8) For the avoidance of doubt, nothing in this section prejudices the operation of the Social Welfare Acts or instruments made thereunder.

(9) Every regulation under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

58C.—This Part has effect notwithstanding—

(a) any provision made by or under—

(i) any other Act,

(ii) any statute or other document to like effect of a university or other third level institution,

(iii) any circular or instrument or other document,

(iv) any written agreement or contractual arrangement,

or

(b) any verbal agreement, arrangement or understanding or any expectation.”.”.

Michael Kitt (Galway East, Fianna Fail)
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Amendment No. 1 to amendment No. 16, in the name of Deputy Mary Lou McDonald, is out of order.

Seán Fleming (Laois-Offaly, Fianna Fail)
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I move amendment No. 2 to amendment No. 16:

In the proposed inserted section 58B(1), in line 2, after “regulations” to insert “which shall be published and laid before each House of the Oireachtas in draft form as soon as may be after each draft regulation is made”.

Seán Fleming (Laois-Offaly, Fianna Fail)
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I move amendment No. 3 to amendment No. 16:

In the proposed inserted section 58B, to delete subsection (9) and substitute the following:“(9) Every regulation under this Part shall be laid in draft form before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the draft regulation is laid before it, the regulation shall be annulled accordingly.”.

Brendan Howlin (Wexford, Labour)
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I move amendment No. 17:

In page 11, to delete lines 45 to 49.

Brendan Howlin (Wexford, Labour)
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I move amendment No. 18:

In page 12, line 5, to delete “PART 6A” and substitute “PARTS 6A and 7A”.

Seán Fleming (Laois-Offaly, Fianna Fail)
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I move amendment No. 19:

In page 12, line 5, to delete “DOES NOT APPLY” and substitute “SHALL APPLY”.

Seán Fleming (Laois-Offaly, Fianna Fail)
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I move amendment No. 20:

In page 12, between lines 5 and 6, to insert the following:

“1. Irish Water.”.

Brendan Howlin (Wexford, Labour)
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I thank Deputies for their contribution on what is detailed and complicated legislation. The insertion today was of substance and I thank Deputies for their forbearance on that because it was a challenge to all of us to ensure we were in tune with the procedures of the House in moving from Report Stage back to Committee Stage. We gave a fair airing to the significant issues that arose. I thank Deputies across the House for their help in getting this through and also for the very detailed consideration we gave to this on previous Stages.

Michael Kitt (Galway East, Fianna Fail)
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The Bill, which is considered to be a Bill initiated in Dáil Éireann in accordance with Article 20.2.2^o of the Constitution, will be sent to the Seanad.