Thursday, 17 December 2020
Ceisteanna ar Sonraíodh Uain Dóibh - Priority Questions
91. To ask the Minister for Enterprise, Trade and Employment if his attention has been drawn to the Organisation of Working Time (Amendment) (Carryover of Annual Leave) (Covid-19) Bill 2020 which was introduced on 26 November 2020, which seeks to allow workers to carry over untaken annual leave which they could not take due to the impact of Covid-19; if his attention has been drawn to the fact that similar legislation has been passed for workers in the UK and Northern Ireland; and if he will support similar legislation here. [44125/20]
Again, this is a fairly straightforward question. It is to ask if the Tánaiste is aware of the Organisation of Working Time (Amendment) (Carryover of Annual Leave) (Covid-19) Bill 2020 introduced in November. It seeks to allow workers carry over untaken annual leave and to give them a legal right to be able to do that. This is leave accrued as a result of Covid-19. I am aware that in some instances leave can be cashed in and they can take the money but after the year those on the front line in particular have had, I believe this capacity to carryover their annual leave and take it at a time when we can be more freer would be very beneficial.
I want to once again express the gratitude of the House to all of the front-line and essential workers who continued to provide services throughout the pandemic.
The Organisation of Working Time Act 1997 sets out an employee’s entitlement to annual leave and the terms and conditions around the taking of that leave. Under section 20 of the Act, the times at which annual leave is taken is ultimately determined by the employer. This is subject to the leave being granted within the leave year to which it relates or, with the consent of the employee, within the six months after the end of that leave year. The Act also allows for further flexibilities to be agreed at sectoral, or company level, when it suits both employees and employers.
If an employer does not allow an employee to take his or her annual leave and does not allow them to carry it into the first six months of the following year, then that employer is breaking the law.
An employee’s entitlement to annual leave was introduced as a health and safety measure as part of the European working time directive, which was transposed into Irish law. While there have been fewer opportunities for travel and recreation activities this year, it is still very important that employees avail of annual leave to take a break, avoid burnout and maintain an appropriate work-life balance, even if that means that they cannot travel abroad or out of their county. This is even more true for staff who have been engaged in work related to the pandemic and have been through an extremely stressful and challenging year.
To date, my Department has not received any representations that would suggest that the carryover of annual leave is a particularly pressing issue at this time. I have sought the views of union and business representative on this matter, via the Labour Employer Economic Forum and their responses to date do not suggest that this is a significant problem but we will keep it under review.
With regard to emergency workers, I have received assurances from both the Department of Public Expenditure and Reform and the HSE that public sector and front-line workers are being encouraged to take their annual leave throughout the pandemic so that they can get a rest and are not being asked not to take their annual leave.
If an employee believes they have been denied their right to take annual leave they may refer a complaint to the Workplace Relations Commission.
They may indeed refer a complaint to the Workplace Relations Commission but they need a rest now and as the Tánaiste knows, it can take months, if not years, to get those complaints resolved. The purpose of the legislation is to reflect these extraordinary times we are in and while I respect the conversations he has had with employers and others with regard to them saying it is not a significant problem at this time, my understanding is that it is a problem and one that can be fixed.
Many people may not be in a position to take their leave and want to carry it over. As the Minister and members of the Government have said, we are not out of the woods yet. This could go on for many months, and indeed past the first six months of 2021. We should give people the entitlement to have the benefit of that rest and to carry that leave forward, not just into 2021 but into 2022. The intention of this legislation is to reflect the extraordinary nature of the times that we are in. It does not just refer to front-line medical and other workers but to those workers who we now all regard as essential, who may not have been regarded as essential previously, such as supply chain workers and people in meat processing factories, and who kept us fed and supplied throughout the pandemic. I think giving them the legal right to carry forward their annual leave is important.
We will keep this under review and if we find cases of people who are being refused their annual leave, we will take legislative action if we need to. It is important to say that people can carry over their annual leave for six months into the next year and that we are encouraging people to take their annual leave, because people need a break and to rest. Even if they cannot travel abroad or outside of their county, they should still take that leave, break and rest. People in the public service are being encouraged to do that and I am told by the authorities that they are not being refused annual leave. We do not want people choosing to bank their annual leave and then taking two or three months in a block next year or the year after, because it could undermine the delivery of public services if large numbers of people chose not to take their leave this year and took a significant amount of leave next year.
There is no suggestion that public services would be undermined. People have an entitlement to take their annual leave. If the Tánaiste reads the legislation, it provides for cases where leave cannot be taken, not cases where workers are banking their leave. I note that the Minister's first port of call is to blame the workers themselves for not taking their annual leave or to suggest somehow that they are trying to game the system. They have an entitlement to benefit. Rest and recreation are extremely important. Notwithstanding the fact that they cannot go outside of their county or go abroad, people need to have a rest from work, but where that cannot be taken or they cannot avail of that rest, it is only fair that they be given the legal right. We have the Organisation of Working Time Act because we cannot just rely on the goodwill of employers. Legal entitlements have to be laid down for workers to ensure that they can get the benefit of their annual leave. In that regard, it is important that those workers would have the capacity to carry it forward, not just for the first six months but for the entirety of 2021 and into 2022, in a scenario where they cannot take their annual leave. It is not that they are, as the Minister has suggested, trying to game the system or bank their annual leave so that they can have three months off in a block and crash public services.
That is a misrepresentation of what I said. If there are examples of people who cannot take their leave, where they are being refused leave by their employer, whether it is a public service employer or private sector employer, we want to know about it, because an employer in those circumstances is breaking the law. People are entitled to their annual leave and can carry it forward for at least six months into the second year. That is already the law. If people want to take their leave and are being refused that leave, that is a serious matter and we want to know about it. It can be adjudicated at the Workplace Relations Commission, and if it requires strengthening the law, I am open to doing that. So far, from the representations coming to us from our engagement with unions and employers, we are not seeing a significant number of cases where people want to take their leave and are being refused it.